JUDGMENT : S.B. Shukre, J. This is an appeal preferred against the judgment and order dated 03/02/2015 delivered in Special (POCSO) Case No.8 of 2014 by the learned Special Judge and Additional Sessions Judge, Warora, District Chandrapur, thereby convicting the appellant of the offences punishable under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act' for short) and also under Sections 363 and 376(1) of the Indian Penal Code (hereinafter referred to as 'the I.P.C.' for short). 2. The facts giving rise to the present appeal are stated in brief as under : The mother of the victim, Anutai, in the year 2014 was residing at CMPDI Camp Area of Warora, District Chandrapur along with her husband Nandkishor, serving at CMPDI Camp, Warora, four sons and the victim-daughter, who was then aged about four years. The accused was a friend of father of the victim girl and used to visit her house on and off. In the evening of 30/03/2014 at about 07:00 p.m., the appellant-accused came to the house of the complainant and he inquired from her as to whether or not her husband was at home. It appears that at that time, the victim girl was playing with other kids in the courtyard of the house and her mother, the complainant, was loitering there. The complainant told the appellant that father of the victim was not at home. She then started walking back to her house and sooner she noticed that the appellant had caught hold of the arm of the victim girl and was taking her away from the house. She ignored it thinking that the appellant must have been taking her so as a part of a casual play with her. The complainant soon got busy with her domestic chores and sometime after realized that her daughter had not come back home. She, therefore, started giving a call to her daughter and came out of her house when she saw the appellant as emerging from a place about 23 houses away from her house and running away while pulling up his full-pant. The complainant got suspicious and, therefore, she went farther and looked around only to find that her daughter, the victim girl, was crying at the same place from where the appellant was seen flee away awkwardly. The complainant got suspicious and, therefore, she went farther and looked around only to find that her daughter, the victim girl, was crying at the same place from where the appellant was seen flee away awkwardly. She also noticed that the slacks that she wore at that time, had been pulled down half way through and that her clothes on their back portion were smeared with mud. The complainant immediately checked private part of her daughter by completely pulling down the slacks and found that blood was oozing from her lower private part. She probingly questioned the victim girl, but the girl did not reveal anything then. She also informed the father of the girl by calling him to the place. The father of the girl then questioned his daughter and the girl disclosed him that the appellant took her away, removed her clothes and slept on her person. The girl also showed the place, where such evil act was done by the appellant to her parents and the neighbours, who had by that time gathered there. They looked for the appellant, but he was untraceable. Then the parents along with the girl came to the police station and the mother of the girl lodged a complaint against the appellant. The offences were registered against him and investigation was commenced. The spot-panchnama and necessary seizures were made. The statement of witnesses were recorded. Appellant was arrested. Medical examinations of the victim girl and the appellant were got carried out. After completion of the investigation, the charge-sheet was filed against the appellant. The Special Court framed the charge for offences punishable under Section 4 read with Section 3(a) and Section 6 read with Section 5(m) of the POCSO Act and under Sections 366 and 376(1) of the I.P.C., to which the appellant pleaded not guilty and claimed to be tried. After completion of the investigation, the charge-sheet was filed against the appellant. The Special Court framed the charge for offences punishable under Section 4 read with Section 3(a) and Section 6 read with Section 5(m) of the POCSO Act and under Sections 366 and 376(1) of the I.P.C., to which the appellant pleaded not guilty and claimed to be tried. On merits of the case, the learned Special Judge and Additional Sessions Judge found that these offences were proved beyond reasonable doubt by the prosecution and, therefore, convicting the appellant for all these offences, the learned Special Judge sentenced the appellant to suffer rigorous imprisonment for ten years and to pay fine of Rs.2,000/- together with default sentence of rigorous imprisonment of six months for the offences punishable under Sections 6 and 4 of the POCSO Act and rigorous imprisonment for two years along with a fine of Rs.500/-, with default sentence of rigorous imprisonment for one month for an offence punishable under Section 366 of the I.P.C. The learned Special Judge also found that the offence punishable under Section 376(1) of the I.P.C. merged with and got included in the offences punishable under Sections 6 and 4 of the POCSO Act. He delivered the judgment and order on 03/02/2015 and the appellant not being satisfied with the same, is before this Court in the present appeal. 3. I have heard Shri S.V. Sirpurkar, learned Counsel for the appellant and Shri N.R. Patil, learned Additional Public Prosecutor for the State. I have carefully gone through the record of the case including the impugned judgment and order. 4. The learned Counsel for the appellant submits that the learned Judge of the Special Court has erroneously placed reliance upon the evidence of PW1 Anutai, the complainant and mother of the victim girl, PW2, the victim girl, PW8 Dr. Dipti Vinay Shrirame, the Medical Officer, who examined the victim girl and gave her opinion and PW9 Nandkishor, the father of the victim girl, as their evidence does not inspire any confidence. Dipti Vinay Shrirame, the Medical Officer, who examined the victim girl and gave her opinion and PW9 Nandkishor, the father of the victim girl, as their evidence does not inspire any confidence. He submits that the circumstantial evidence in the nature of the DNA Report is also unreliable for the reason that the possibility of the clothes of the victim girl being tampered with has reasonably emerged from the evidence of PW6 Ujwala Sakharkar, the lady police constable, who had taken the victim girl to the hospital at Warora as well as Chandrapur and received the clothes of the victim in sealed condition from the Medical Officer. He submits that the Medical Officer, Dr. Dipti, has given another version, not supported by any documentary evidence that the clothes of the victim were initially taken and sealed, but later on were returned to the victim as her parents had not brought to the hospital alternate clothes for the victim to put on. He submits that the Investigating Officer, however, says that the mother of the victim brought the clothes of the victim to the police station, which were then seized in the presence of the panchas. He submits that Exh.28A is a document, which contains answers given by the Medical Officer to the queries made by the Investigating Officer vide communication at Exh.28 and one of the answers discloses that victim's clothes were taken and sealed by the Medical Officer. He further submits that below these answers, there is an acknowledgment given by PW6 Ujwala that she received all the samples. Thus, he submits that no reliance can be placed upon the DNA Report vide Exh.43 and if the DNA Report goes the evidence of PW1 Anutai, which contains material discrepancies, cannot be believed. He also submits that PW2, the victim girl has admitted that she was tutored by her parents. He further submits that PW9 Nandkishor, the father, does not have any personal knowledge. In these circumstances, he urges that the appellant be acquitted by giving him a benefit of doubt. 5. Learned A.P.P. for the State, disagreeing with the submissions of the learned Counsel for the appellant, states that there are no material discrepancies in the evidence of the key prosecution witnesses and, therefore, there is no reason to disbelieve their testimonies before the Court. 5. Learned A.P.P. for the State, disagreeing with the submissions of the learned Counsel for the appellant, states that there are no material discrepancies in the evidence of the key prosecution witnesses and, therefore, there is no reason to disbelieve their testimonies before the Court. He also submits that on the seizure of the clothes of the victim girl, which she had worn at the time of the incident as well, there is no doubt for the reason that PW1 Anutai has asserted that she had produced these clothes before the police later on which were seized by the police and her thumb impression was obtained, which evidence is consistent with the evidence of the Investigating Officer PW10 Deepmala. Therefore, he submits that the DNA Report vide Exh.43 cannot be rejected. He further submits that although PW2, the victim girl, has admitted in her cross-examination that what she stated before the Court was what she was told to state before the Court by her parents, such an admission is required to be considered as really having the effect, not of tutoring the child, but of her being reminded to tell the truth only. He further submits that even if the evidence of PW2 is discarded, she being a girl of tender and immature age, it would not weaken the prosecution case for the reason that PW1 Anutai had seen the appellant take away the victim girl and had also seen the appellant run away from the spot of incident while pulling up his full-pant and such conduct of the appellant has gone unexplained by him. He also submits that the DNA Report vide Exh.43 connects the appellant with the victim girl for which no probable explanation has been put forth by the appellant. Thus, he submits that there is no need to interfere with the impugned judgment and order. 6. Upon a careful consideration of the evidence available on record, testimonial and circumstantial, I am of the view that there is no merit in the argument for the learned Counsel for the appellant and there is a great substance in the submissions made on behalf of the prosecution. The reasons for the conclusion are stated in the forgoing paragraphs. 7. Upon a careful consideration of the evidence available on record, testimonial and circumstantial, I am of the view that there is no merit in the argument for the learned Counsel for the appellant and there is a great substance in the submissions made on behalf of the prosecution. The reasons for the conclusion are stated in the forgoing paragraphs. 7. PW-1 Anutai, the mother of the victim girl, as seen from her testimony, first saw the appellant take away her daughter, further saw the appellant run away from the spot of the incident with his pants down, which he frantically pulled up and then finally stumbled upon the discovery of her daughter at the spot of incident and in a state of crying, which spot was situated about 23 houses away from her own house. This spot was in the nature of a house newly constructed and till then unoccupied. She also noticed that her daughter’s clothes were stained with mud. These are the basic facts which consistently emerge from her entire evidence. There are, of course, some improvements in her evidence and even some omissions. But, upon overall consideration of her evidence, I do not find that they are of such a nature as to render her whole testimony as unworthy of credit, the reason being that they do not contradict the core of her evidence comprising afore stated basic facts. I must say, at the cost of repetition, so far as the core part of her evidence is concerned, reproduced earlier, there are neither any discrepancies nor omissions. On its own strength, therefore, such evidence of PW1 Anutai could be believed and accordingly, I do believe it. It is also broadly corroborated by her report vide Exh.11. 8. After the incident, PW1 Anutai immediately decided to contact her husband, who was away from the house and she succeeded in getting in touch with him and bringing him to the spot of incident. She showed to him the condition in which her daughter was in at that time and then, her husband PW1 Nandkishor, probingly inquired with his daughter when the victim girl told him that she was taken away by the appellant, her clothes were removed by the appellant and thereafter the appellant slept on her person. She showed to him the condition in which her daughter was in at that time and then, her husband PW1 Nandkishor, probingly inquired with his daughter when the victim girl told him that she was taken away by the appellant, her clothes were removed by the appellant and thereafter the appellant slept on her person. Even if we ignore that part of this evidence which relates to what was told to him by the victim girl by presuming that victim girl's evidence is unreliable, still, his evidence is admissible to the extent it throws light upon the conduct of PW1, the complainant, discernible from her own evidence. It only shows that the conduct of PW1 in seeking immediately the help of her husband PW9 Nandkishor is most natural and the conduct of PW1 Nandkishor in reaching the spot immediately on learning about some serious issue visiting his daughter and his inquiring with his daughter is also natural. All these facts emerge from the evidence of PW9 Nandkishor as well as PW1 Anutai and, therefore, the evidence of PW9 being consistent with the evidence of PW1 Anutai in this regard can also be accepted to this extent only as reliable. 9. The question that arises here as to whether or not PW9 Nandkishor could also be believed in respect of the disclosure that he says to be made to him by the victim girl that the appellant took her away, removed her clothes and then inserted his private organ into that of the victim girl and also inserted his finger therein. The process to find an answer to the question, however, gets complicated by the fact that the victim girl, was only four years old at the time of incident and was also of almost the same age at the time of her evidence, it being recorded early before the Court. No oath was administered to her stating that she was of four years of age and did not understand meaning of oath. It appears that the learned Session Judge did not ask any questions to her to ascertain the level of understanding and maturity of the victim girl, PW2, in conformity with her age which was so essential to assess her evidence for it's truthfulness or otherwise. It appears that the learned Session Judge did not ask any questions to her to ascertain the level of understanding and maturity of the victim girl, PW2, in conformity with her age which was so essential to assess her evidence for it's truthfulness or otherwise. While in the examination-in-chief, the victim girl, PW2, did say that the appellant took her away by holding her hand and then he put his private part into the private part of the victim girl and also inserted therein his fingers, but in cross-examination, she gave affirmative answers to all the questions, which were leading to and suggestive of the answers. The result is that the victim girl has admitted in the cross-examination that the appellant came to her house, talked with her father, who was present in the house and then went away, and thereafter her mother and father asked her to come along with them to the police station and tell before the police that the appellant took her away by holding the hand and then removing her clothes committed the act narrated by her in her examination-in-chief. Her such answers are sufficient for drawing the conclusion that the victim girl, PW2, is too small, too tender and too immature to know what was done to her by the appellant and tell it also to the world of adults and so her evidence in respect of what was done to her by the appellant cannot be accepted. Therefore, the evidence of PW9 Nandkishor on the aspect of the disclosures made to him by his daughter about the offending act would have to be taken as hearsay evidence and taking it so, this part of his evidence is discarded. 10. Discarding of part of evidence of PW9, and so also of the victim girl, PW2, as stated in previous paragraphs, however, would not pull down the curtain over the matter. As a matter of record, I would say, this is a case where some facts, if not all, appear to be explained by ocular evidence and for the facts not explained by the former, the job appears to be done by the medical and circumstantial evidence. It is precisely for this reason, a further and deeper assessment of prosecution evidence seems inevitable. 11. It is precisely for this reason, a further and deeper assessment of prosecution evidence seems inevitable. 11. The evidence of the child witness, insofar as it corroborates the other evidence that the appellant came to the house of the victim girl on the day of the incident at about the time of the incident and that at that time, she was in the courtyard, nevertheless needs to be accepted for the cross-examination of the victim girl shows that these facts are admitted by the appellant as well. In fact, it is what was actually witnessed by PW1 Anutai. Then the burden would be upon the appellant to explain the reason for his going there. The cross-examination of PW9 Nandkishor, does show that some suggestions were given to him that on the date of incident at about 07:00 p.m. in the evening, the appellant had visited the house of the appellant for the purpose of demanding repayment of hand-loan extended by him to PW9, that further amount was sought to be borrowed by PW9, that there was a dispute between the appellant and PW9 Nandkishor over such borrowings and following the same, there were some threats issued by PW9 to the appellant to frame him in a false case. But, in order to bring these suggestions into the penumbra of law of preponderance of probabilities, and hence consider them as reasonably explaining the purpose of visit, it was necessary for the appellant to bring on record some other circumstances which would have lent colour of reasonable probability to these suggestions. But, he did not do so. These suggestions have been promptly denied by PW9. Similar is the nature of cross-examination of PW1 Anutai. Result is that though foundation for explaining the purpose of visit was laid by the appellant, no structure standing thereon could be visualized by law of probability. So, the going of the appellant to the house of the victim girl on the day of the incident and at the relevant time and the victim girl being present in the courtyard, are the facts established beyond reasonable doubt by the prosecution. 12. Added to the afore stated facts reasonably proved by the prosecution are the facts established by it from the evidence of PW1 Anutai. 12. Added to the afore stated facts reasonably proved by the prosecution are the facts established by it from the evidence of PW1 Anutai. Her evidence discussed by me earlier and accepted as true for the core part of it together with afore stated facts would place a further burden upon the appellant, having regard to tender age of the victim girl, the girl was of just 4 years old, to explain his conduct in taking away the victim girl, his presence near the spot of incident, finding of the victim girl at the spot of incident in crying state, clothes of the victim girl being smeared with mud and his running away from the spot of incident, in an awkward condition, he ran away while pulling up his full-pant, all of which would otherwise link him with the victim girl in some adverse way. He has, however, not discharged it by giving any satisfactory explanation in that regard. This would enable me to draw an inference that there was something seriously suspicious about his conduct and that he may possibly have done some wrong to the victim girl. Of course, no suspicion strong as it may be can take place of the fact established by legal evidence. But, suspicion so raised against the appellant here gets converted into a fact conclusively proved when one considers the circumstantial evidence available on record. This evidence, I find on a closer scrutiny, completes the chain of circumstances establishing unequivocally the nexus of the appellant with the crime committed in respect of the victim girl. This evidence completely rules out any other hypotheses of innocence of the appellant and thus meets the criteria of finding guilt of the accused by means or with the help of circumstantial evidence. These criteria are too well settled to need any elaboration here. This evidence completely rules out any other hypotheses of innocence of the appellant and thus meets the criteria of finding guilt of the accused by means or with the help of circumstantial evidence. These criteria are too well settled to need any elaboration here. A useful reference in this regard, nevertheless, could be made to cases of Sharad Birdhi Chand Sarda v. State of Maharashtra – (1984) 4 SCC 116 , Balwinder Singh v. State of Punjab 1996 SCC (Cri.) 59, and Raja alias Rajinder v. State of Haryana (2015) 11 SCC 43 , all of which lay down that the circumstances sought to be proved against the accused not only be conclusively proved but also be shown, when considered cumulatively, to form a chain so complete that there is no escape from reaching a conclusion that within all human probability the crime was committed by the accused only and that no other conclusion is possible. This evidence has been discussed by me in foregoing paragraphs. 13. PW-8 Dr. Dipti, who examined the victim girl at about 03:50 a.m. of the night between 30/03/2014 and 31/03/2014, stated that the genital examination of the victim showed that a fresh injury was present on her hymen and the edges of the injury were reddish. This injury was present at 3 O'clock position. The Medical Report vide Exh.26 issued by her fully corroborates her such testimony. There is nothing in her entire evidence to enable me to doubt her such finding and opinion. Therefore, I accept her evidence as credible. This would lead to further inquiry – is there something between sustaining of injury to the hymen by the victim girl and presence of the appellant at the spot of incident with his pants down and if so, what is it like? The facts that the appellant was seen flee away from the spot of incident while pulling up his full-pant and the victim girl was also found there in a traumatized state certainly show that there was something in the conduct of the appellant which led to the victim girl being violated in such a manner. The appellant does not give any explanation in this regard and his silence has been read, as stated earlier, as pointing sharply the needle of suspicion towards him. The appellant does not give any explanation in this regard and his silence has been read, as stated earlier, as pointing sharply the needle of suspicion towards him. This something serious suspicions, however, gets transformed into a fact conclusively proved when one considers the circumstantial evidence in the nature of DNA Report vide Exh.43. It discloses that the semen detected on the slacks and underwear worn by the victim girl at the time of the incident matched with the DNA profile obtained from the blood of the appellant. No explanation, whatsoever, about such matching has been given by the appellant. Therefore, this circumstantial evidence would serve as a final and defining link in the chain of circumstances leading to the conclusion and the only conclusion that the appellant was the cause behind the rupturous injury to the hymen of the victim girl, which was possible only if there was insertion of either the private organ of the appellant or his finger/some object by him or combination of them. This evidence rules out completely any other hypotheses of innocence of the appellant. 14. Of course, PW-8 Dr. Dipti in the document vide Exh.28-A, which contains answers to the queries made by the Investigating Officer vide Exh.28, has mentioned that the victim's clothes were taken and sealed, and PW6 has also admitted that all the samples including the clothes were received by her from the Doctor. But, if we consider the evidence of PW1 Anutai and also PW10 Deepmala, the Investigating Officer, this evidence of PW6 Ujwala as well as the remark made in the document vide Exh.28 of taking and sealing the clothes of the victim, would have to be rejected as being inconsistent with otherwise reliable evidence of PW1 Anutai as well as PW10 Deepmala. In fact, PW-8 Dr. Dipti has given her explanation in the examination-in-chief that initially the clothes of the victim were obtained and sealed, but later on finding that she had no other clothes to wear, all the clothes were returned to the victim and she forgot to mention this fact in the document at Exh.28-A. This explanation is consistent with the evidence of PW1 Anutai emphasizing that she had produced the clothes of her daughter before the police, which were seized by them and her thumb impression was also obtained on the seizure-panchnama vide Exh.41. This is corroborated by the evidence of PW10 Deepmala, the Investigating Officer. There is nothing in the cross-examination of both of these witnesses to reject their such evidence. The seizure-panchnama vide Exh.41 bears thumb impression of PW-1 Anutai. This has not been disputed by the appellant. Therefore, I find that the clothes of the victim were seized at the police station by the police upon their being produced before the police by PW1 Anutai on 31/03/2014 at about 06:00 p.m. and not before that as stated by PW6 Ujwala. I think, PW-6 Ujwala due to handling of too many criminal cases may have forgotten this later happening in the case and, therefore, only relying upon her acknowledgment given below the document at Exh.28-A, may have wrongly stated that she received the clothes of the victim in sealed condition. There is thus no doubt about the sanctity of seizure and sealing of the clothes of the victim and as such the possibility of the clothes being tampered with is completely ruled out. Consequently, no doubt can be entertained about the findings recorded in the DNA report vide Exh.43, which I have already accepted as credible. They throw a clear light upon the culpability of the appellant in the offences with which he has been charged in the instant case. The argument of the learned Counsel for the appellant in this regard is, therefore, rejected. 15. In the circumstances, I find that in the instant case, the evidence of the prosecution has established beyond any manner of doubt, the facts that on the fateful day, at the relevant time, the appellant took away the victim girl from the lawful guardianship of her mother without her consent and then subjected her to penetrative sexual assault thereby committing the offences punishable under Sections 363 and 376(1) of I.P.C. as well as Sections 4 read with Section 3(a) and Section 6 read with Section 5(m) of the POCSO Act, 2012. The findings recorded by the learned Special Judge are based upon the evidence available on record and could not be said to be erroneous in any way. No interference with them is called for. 16. The learned Special Judge has handed out minimum prescribed punishment for the aggravated crime and, therefore, on this count also, no interference with the impugned judgment and order is warranted. The appeal deserves to be dismissed. The appeal stands dismissed. No interference with them is called for. 16. The learned Special Judge has handed out minimum prescribed punishment for the aggravated crime and, therefore, on this count also, no interference with the impugned judgment and order is warranted. The appeal deserves to be dismissed. The appeal stands dismissed. Appeal dismissed.