JUDGMENT

This appeal is filed by appellant/sole accused praying to set aside the judgment of conviction and order of sentence dated 28.07.2022 passed in Spl.Case No.125/2019 by the Additional District and Sessions Judge, FTSC-II, Dakshina Kannada, Mangalore.

2. The appellant/accused has been convicted for offence punishable under Section 6 of the Protection of Child from Sexual Offences Act, 2012 (for short hereinafter referred to as ‘POCSO Act’) and Section 506 of Indian Penal Code (for short hereinafter referred to as `IPC’) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.20,000/- for offence punishable under Section 6 of the POCSO Act and sentenced to undergo simple imprisonment for a period of six months for offence punishable under Section 506 of IPC.

3. The factual matrix of the prosecution case is as under:

The appellant/accused is father of the PW-1/victim girl and they were residing together in residential house.

On 08.02.2019 in between 11.30 p.m. to 12 ‘o’ clock in the midnight, the victim girl sleeping in the separate room at that time accused has gone to the said room and closed room and had forcible penetrative sexual intercourse. Even, thereafter had sexual intercourse for 3-4 times which resulted the victim girl is 4 and half months pregnant. Charge sheet has been filed against this appellant/accused for offence punishable under Section 376 of IPC and Sections 5(l) and 5(n) r/w Section 6 of the POCSO Act. The Special Court has framed charges for the said offences. The prosecution in order to prove the charges has examined PW-1 to PW-11 and got marked EX.P1 to P24. The trial Court, after hearing arguments both sides formulated the points for consideration and after appreciating the evidence on record, convicted the appellant/accused for offence punishable under Section 6 of the POCSO Act and Section 506 of the IPC. The said judgment of conviction and order of sentence has been challenged in this appeal.

3. Heard arguments of learned counsel for the appellant/accused and learned High Court Government Pleader for the respondent -State.

4. Learned counsel for the appellant/accused has argued that the age of the victim girl has not been proved. EX.P14 is certificate and EX.P16 is extract of admission register issued by the PW-6/Vice Principal will not establish the age of the victim girl as required under Section 34 of the POCSO Act and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short hereinafter referred to as `JJ Act’) as held by the Hon’ble Apex Court in the case of Marlinga @ Mariyappa Vs State of Karnataka1. He further contends that the Trial Court only based on the DNA report has convicted the appellant/accused. The said DNA report is not substantial piece of evidence. He contends that the DNA report can be relied where there is separate conception but it cannot be accepted in islotation or sole piece of evidence to record conviction in rape cases. He contends that there is

1 2022 SCC OnLine Kar 1644 : ILR 2022 KAR 3377

delay of two days in sending conception to FSL and the Investigation Officer has not followed the guidelines for collection, storage and transportation of the crime scene DNA samples. He contends that the DNA Paternity Testing Form is not prepared. The conception was sent through plastic box and stored in salt. The victim girl was aborted on 01.07.2019, aborted Foetus was received on 03.07.2019 at FSL, Bangalore and analysis started on 03.05.2020 to 30.05.2020. There is no evidence to show that how it was stored by FSL, Bangalore till the said date. He contends that blood sample of the appellant and victim was not drawn as per guidelines. The PW-10/Doctor has not prepared Blood Sample Authentication Form as per guidelines. PW-9/I.O was not prepared Chain of Custody as per guidelines. There is no positive evidence that the appellant/accused had sexual intercourse with PW- 1/Victim girl without her consent or against