JUDGMENT Deepak Gupta, J. 1. This appeal by the State is directed against the judgment dated 20th August, 1998 delivered by the Judicial Magistrate 1st Class, Court No. 1, Mandi, whereby the accused has been acquitted of having committed offences, punishable under Sections 377 and 342 of the Indian Penal Code. 2. The prosecution story in brief is that on 24th September, 1993 Smt. Banti Devi alongwith her minor son 'U' (name withheld to protect his identity), who was aged about seven years, was working in the field. At about 12 noon, the minor child went to the nearby Pump House to drink water. There the accused took the child inside a room into the Pump House, took off the clothes and underwear of the child, made him lie down and sodomised him. When the child came out, he was in pain and told his mother about the occurrence. The mother went to the Pump House and confronted the accused, who did not reply. She then came home and told her husband. Thereafter, the report was lodged with the police at about 5 p.m. On this report of the mother of the child, FIR Ex. PW-2/A was lodged. The minor boy 'U' was got medically examined the same day at about 5.45 p.m. The accused was arrested and he was got medically examined next day at about 3.30 p.m. Further investigation was done in the matter and according to the police, after arrest, the accused identified the place where he had sodomised the minor child. 3. On the basis of the material collected by the police, the accused was challaned with having committed offences punishable under Sections 377 and 342 of the Indian Penal Code. The accused pleaded not guilty and claimed trial. The accused was acquitted by the trial Court and, hence, the present appeal by the State. 4. The main grounds, which weighed with the learned trial Court, were that the statement of the minor victim could not be relied upon; the statement of the mother was hear-say; and that the medical evidence did not prove that the child had been sodomised since there was no injury on the anus of the minor child or on the penis of the accused. 5. The law relating to appreciation of the testimony of a child witness has been succinctly laid down by the Apex Court in Bhagwan Singh and Ors. 5. The law relating to appreciation of the testimony of a child witness has been succinctly laid down by the Apex Court in Bhagwan Singh and Ors. v. State of M.P. AIR 2003 SC 1088, wherein the Apex Court held as follows: 19. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sold testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony. 6. The law is well settled that it is the duty of the Court to satisfy itself that the child understands the questions and can answer them properly. In the case before the Apex Court the child was a witness to the occurrence. In the present case, the child is not only a witness but the victim himself. When the child witness is also the victim his testimony has greater force. 7. A child of tender age of seven years by nature will not tell lies. At that age a child has not become worldly wise, has not learnt the ways of the modern world and has not learnt to tell lies. However, on the other hand, there is no manner of doubt that a child can be tutored by his parents, teachers or other people, who have influence over him and in fact over period of time a child may start believing that what is told to him/her by persons, who wield influence over him/her, is the truth. Therefore, the Court has to be more careful while examining the testimony of a child witness. We are also not oblivious of the fact that we are dealing with a case where the accused has been acquitted. The presumption of innocence which attaches to any accused is strengthened by his acquittal. In this regard, we may make reference to the judgment of the Apex Court in Gowrishankara Swamigalu v. State of Karnataka AIR 2008 SC 2349. 8. It is in the light of the aforesaid that we are examining the evidence in this case. 9. The presumption of innocence which attaches to any accused is strengthened by his acquittal. In this regard, we may make reference to the judgment of the Apex Court in Gowrishankara Swamigalu v. State of Karnataka AIR 2008 SC 2349. 8. It is in the light of the aforesaid that we are examining the evidence in this case. 9. The minor boy appeared as PW-3. Unfortunately, the trial of the case took a long time. Whereas the incident took place in 1993, the statement of this boy was recorded in 1996. By the time he appeared in the Court, he was eleven years old. After putting some questions to him, the learned trial Court came to the conclusion that this witness understood the sanctity of an oath and administered oath to him. The witness stated that he and his mother had gone to the fields to harvest bean pods (Rongi). He felt thirsty and went towards the Pump House. It was around noon time. The Pump House was about 100 metres from the fields. He started drinking water from the tap outside the Pump House. The accused present in the Court asked him to bring the register, which was lying outside, into the room. He took the register and went inside the room. The accused caught hold of him and took off his underwear. The accused also took off his own Pyjama and sodomised the witness. The accused had latched the door from inside. The child felt a lot of pain and wanted to scream but the accused gagged his mouth and also told him that he should not say anything to his mother. The child came out of the Pump House and came to his mother and told her about the entire incident. Then his mother confronted the accused. The child was cross-examined at length. The main thing, which has come out in the cross-examination, is that one person Gujjar was washing clothes at the Pump House when the occurrence took place and when his mother questioned the accused, Gujjar was present there. He, however, stated that Gujjar did not know what had happened inside the room. The child was cross-examined at length. The main thing, which has come out in the cross-examination, is that one person Gujjar was washing clothes at the Pump House when the occurrence took place and when his mother questioned the accused, Gujjar was present there. He, however, stated that Gujjar did not know what had happened inside the room. He was also confronted with his statement under Section 161 of the Code of Criminal Procedure in which it was not recorded that the accused had asked him to bring a register from outside and it was also not recorded that the accused had threatened his mother. 10. PW-2 is the mother of the victim child, whose version is similar to that of the victim. According to her, when after some time the child did not return from the Pump House she was just starting to go to the Pump House when she met the child, who was crying and he told her that he had been sodomised by one person in the Pump House. She then went to the Pump House and confronted the accused and raised objection to his conduct. Then they came home and reported the matter to the police, vide FIR Ex. PW-2/A. This witness was also confronted with the FIR in which there is no mention that the accused had asked the minor child to come inside the room on the pretext of bringing the register. She admitted that after the occurrence a number of people had gathered in the village and thereafter some deliberations took place and then the report was lodged with the police. She denied the suggestion that some people, including the accused, used to steal maize from her fields and, therefore, she had inimical relations with the accused and had lodged a false case against him. 11. PW-5 Dr. G.D. Saini was posted as Medical Officer in CHC Ratti at the relevant time. He examined the victim at 5.45 p.m. on the day of occurrence itself. He testified that the history of the occurrence, as recorded in the MLR Ex. PW-5/A, was recorded at the instance of the victim himself. The same reads as follows: The child gives history that he had gone to the field to bring some beans (Rongi) then he went to the pump house to drink water. He testified that the history of the occurrence, as recorded in the MLR Ex. PW-5/A, was recorded at the instance of the victim himself. The same reads as follows: The child gives history that he had gone to the field to bring some beans (Rongi) then he went to the pump house to drink water. There at the pump house, there were two persons, one was washing the clothes and the other took him inside the pump house and opened his underwear upto the knee and then he penetrated his penis (Fohli-as told by the patient) into his anus. Thereafter about 10 mts he felt wetness in his anal region (Sheena-2). Then he left him, he had also closed his (Patient's) mouth with his one hand. After that the patient wiped the secretion of his anal region with his own hand and washed that at the tap outside. According to this witness, the minor child was feeling slight pain but the anus sphincter was tightly closed. No abrasion outside the anus could be detected. No blood or any secretion was found around the anus. He also stated that if the victim does not resist no abrasions will be caused either on the body of the victim or on the body of the person who had sexually abused the victim. The doctor was virtually not subjected to any cross-examination, except that he had not examined the patient and had issued a false certificate. 12. PW-4 Dr. K.K. Malhotra examined the accused and found no injury on his private parts. He also opined that if a 23 year old man sodomises a seven year old child then the private part should have some injury marks on it. 13. The learned trial Court acquitted the accused only on the ground that there were no injury marks on the person of the accused or on the anus of the victim. In this behalf, he relied upon the statement of PW-4 Dr. K.K. Malhotra, referred to hereinabove. The learned trial Court, however, glossed over the statement of PW-5 Dr. G.D. Saini, who is also a medical expert being a doctor, who has clearly stated that if a victim does not resist then both the persons to the act may not have injuries on their person. 14. K.K. Malhotra, referred to hereinabove. The learned trial Court, however, glossed over the statement of PW-5 Dr. G.D. Saini, who is also a medical expert being a doctor, who has clearly stated that if a victim does not resist then both the persons to the act may not have injuries on their person. 14. By now, the law is well settled that the victim to sexual abuse is not be treated like a conspirator. Why should the small child of seven years (eleven years at the time of testifying in the Court) falsely testify against the accused. Though a suggestion has been put that the relation between the two sides are not cordial, there is nothing on record to show that the relations were strained. We also cannot believe that the mother of a small seven years old child, just to settle her personal scores, would lodge a totally false complaint, which would make her child the subject matter of ridicule and an object of derision in the village. 15. We cannot lose sight of the fact that the FIR was lodged on the same day, within a few hours of the occurrence. Obviously, in a case like the present one, where a small minor child has been sexually abused, the parents will think twice before lodging the complaint. They may have also consulted other villagers and thereafter lodged the complaint. Except for two very minor contradictions, there is no major contradiction in the two statements. One contradiction is that there is no mention of the register in the original FIR, which is very minor. It is, however, true that a person named Gujjar was not examined by the prosecution, but the case of the prosecution cannot fail merely because there is some negligence on the part of the Investigating Officer. 16. In this case, the statement of the victim inspires confidence. His statement has a ring of truth. His mother's statement corroborates his version. He was examined by the doctor on the same day and the statement made in the Court is totally consistent with what he has stated before the doctor. He had clearly stated that there was a man washing clothes near the pump house. His statement has a ring of truth. His mother's statement corroborates his version. He was examined by the doctor on the same day and the statement made in the Court is totally consistent with what he has stated before the doctor. He had clearly stated that there was a man washing clothes near the pump house. The doctor had opined, both on the basis of the history given by the patient (child) as well as the medical examination and the pain being suffered by the child, that the child had been sodomised. 17. It has been urged by Mr. Ashwani Sharma, Advocate, that in this case penetration has not been proved and penetration is necessary to prove the offence of sodomy. In this regard, his reliance is mainly on the medical evidence. He also urges that there is delay of 2 1/2 hours in lodging the report. 18. As far as the delay is concerned, we find that virtually there is no delay in lodging the complaint. In fact we find that the FIR was lodged within a short time itself. The child in his statement in the Court as well as in the statement made to the doctor, which we have quoted hereinabove, has clearly stated that the accused had inserted his private part into the anus of the child. Even the slightest penetration amounts to penetration. Keeping in view the testimony of the child, we are of the view that there was some degree of penetration, though not very deep. Since the penetration may not be deep there would be no injury on the child. 19. In view of the above discussion, we are clearly of the view that the learned trial Court has gravely erred in acquitting the accused. We find the accused guilty of having committed an offence punishable under Section 377 of the Indian Penal Code. Accordingly, the appeal is allowed and the accused is convicted of the offence punishable under Section 377 of the Indian Penal Code. His bail bonds are accordingly cancelled. He is directed to be arrested and produced before us on 9th September, 2010, so that he can be heard on the question of quantum of sentence.