JUDGMENT Ravindra Nath Mishra-II, J. 1. This Criminal Appeal has been filed by appellant-accused Pintu son of Lalji, aged 23 years, resident of Village Chiraiya, Police Station Than Gaon, District Sitapur against judgment and order dated 27.05.2016 passed by Special Judge, POCSO Act/Additional Sessions Judge, Court No. 09, Sitapur, whereby appellant-accused has been convicted and sentences under Section 377 I.P.C. to rigorous imprisonment of 08 years together with fine of Rs. 5,000/- and also under Section 6 Protection of Children from Sexual Offences Act, 2012 to rigorous imprisonment of 10 years together with fine to the tune of Rs. 5,000/- and in default appellant-accused has also been sentenced to undergo imprisonment of one year each. The Court has also directed that both the sentence shall run concurrently. 2. Brief facts giving rise to his criminal appeal are that the complainant-Chhanga son of Bhairo Lodh, Resident of Village Chiraiya, Police Station Than Gaon, District Sitapur lodged an F.I.R. on 11.08.2013 in Police Station Than Gaon, District Sitapur that at about 2.30 p.m. when his son (shall be mentioned as “victim” to maintain secrecy) aged 07 years was playing in front of his house, appellant-accused Pintu came and took his son with him in side Bungalow of Payare Lodh and after gagging him with cloths, the appellant-accused committed unnatural intercourse with the victim. Victim started weeping and came back to his house where he narrated the whole story to the complainant and his wife. On written complaint (Exhibit Ka-1) an F.I.R. under 377 I.P.C. and Section 3 Ka/4 Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “Act of 2012”) was registered. 3. Investigation was handed over to Sub-Inspector Bhawani Shanker Singh, who visited place of occurrence and prepared site plan (Exhibit Ka-5). During investigation he recorded statement of witnesses under Section 161 Cr.P.C. and thereafter having found sufficient evidence against the appellant-accused, charge-sheet (Exhibit Ka-6) was filed in the Court. 4. On the basis of material filed along with charge sheet charges under Section 377 I.P.C. and Section 6 of Act of 2012 were framed against appellant-accused from which he denied and claimed to be tried. 5. In order to substantiate the charges framed against appellant-accused prosecution examined PW-1 complainant Chhanga Lal, PW-2 the victim, PW-3 Dr. Akhilesh Kumar, PW-4 Constable Himanshu Chaudhary and PW-5 Bhawani Shanker Singh. 6. 5. In order to substantiate the charges framed against appellant-accused prosecution examined PW-1 complainant Chhanga Lal, PW-2 the victim, PW-3 Dr. Akhilesh Kumar, PW-4 Constable Himanshu Chaudhary and PW-5 Bhawani Shanker Singh. 6. At the conclusion of prosecution evidence accused was examined under Section 313 Cr.P.C. in which he has stated his false prosecution, however no evidence was adduced by the appellant-accused. 7. After hearing argument of both the parties, Trial Court found the charges under Section 377 I.P.C. and Section 6 of Act of 2012 proved and, therefore, appellant-accused was convicted and sentenced with rigorous imprisonment of 08 years together with fine to the tune of Rs. 5,000/- under Section 377 I.P.C. and with rigorous imprisonment of 10 years together with fine of Rs. 5,000/- under Section 6 of Act of 2012. In default of payment of fine, the Court has also directed the appellant-accused to undergo imprisonment of one year each for both the offences additionally. Both the offences have been directed to run concurrently. The Court has also directed compensation to the tune of Rs. 5,000/- to be paid to the complainant Chhanga Lal, out of above amount of fine deposited by appellant-accused. 8. Appellant-accused is in Jail undergoing the sentence awarded by lower Court, however, he is represented through Amicus Curiae Sri Sunder Lal. 9. I have heard learned Counsel appearing for appellant-accused and learned A.G.A. 10. Learned Counsel for the appellant-accused has argued that the lower Court has failed to appreciate the evidence available on record. The doctor, who has medically examined the victim just after the occurrence has stated that no mark of external injury was found around his anus. He has also argued that in absence of external injury penetration is not proved, therefore, offence under Section 377 I.P.C. is not at all made out. 11. Per contra, learned A.G.A. has argued that even slightest of penetration is sufficient to constitute carnal intercourse as mentioned in Section 377 I.P.C. and external injury is not essential in all the case of penetration. 12. In order to appreciate the rival contention of both the parties, I must notice definition of “unnatural offences” as given in Section 377 I.P.C., which may be extracted as below: “377. 12. In order to appreciate the rival contention of both the parties, I must notice definition of “unnatural offences” as given in Section 377 I.P.C., which may be extracted as below: “377. Unnatural offences.-- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.-- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” 13. Thus in order to attract culpability of Section 377 I.P.C., it has to be established: “a) the accused had carnal intercourse with man, woman or animal, b) such intercourse was against the order of nature, c) there was penetration.” 14. Carnal intercourse against the order of nature is the substance of offence under Section 377 I.P.C. Unlike Section 375 I.P.C., which defines “rape”, Section 377 I.P.C. itself contained the explanation that penetration is sufficient to constitute the carnal intercourse necessary for the offence, though penetration is also essential element for commission of offence of rape. By virtue of the explanation appended to Section 377 I.P.C., it is necessary to prove penetration, however, little, to constitute the carnal intercourse, therefore, to decide whether there is intercourse or not, what is to be considered is whether the visiting organ is enveloped at least partially by the visited organism. Penetration is an essential element of sexual intercourse or carnal intercourse as worded in Section 377 I.P.C. and there is carnal knowledge even if there is slightest penetration. Seminal discharge i.e. full act of intercourse is not essential. Even if there was partial penetration of male organ into the visited organism external injury is likely to be caused. 15. Parallel to provisions of Section 377 I.P.C., a provision has been made in Section 3 of Act, 2012, which may be reproduced as under: “3. Seminal discharge i.e. full act of intercourse is not essential. Even if there was partial penetration of male organ into the visited organism external injury is likely to be caused. 15. Parallel to provisions of Section 377 I.P.C., a provision has been made in Section 3 of Act, 2012, which may be reproduced as under: “3. Penetrative sexual assault : A person is said to commit “penetrative sexual assault” if -- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.” 16. The Act of 2012 has been enacted to provide protection to children from offences of sexual assault, sexual harassment etc and to safeguard the interest and well being of children, as children were thought not to be adequately safeguarded against sexual offences. This act is a self contained comprehensive Act to provide for protection of children from offences of sexual assault and sexual harassment etc incorporating child friendly procedure for reporting, recording of evidence, investigation and trial of offences. This Act is aimed at safeguarding the interest of children below the age of 18 years. Section 3 of Act, 2012, clarifies that penetration of penis, to any extent, into the vagina, mouth, urethra or anus of a child is sufficient to constitute offence of sexual assault. Thus in Section 3 of the Act, 2012 also penetration is made essential ingredient to constitute offence. 17. Now in the instant case, it has to be seen whether there was any penetration. PW-2-victim has stated that appellant-accused is known to him as he resides at a distance of 50 steps from the house of appellant-accused. Thus in Section 3 of the Act, 2012 also penetration is made essential ingredient to constitute offence. 17. Now in the instant case, it has to be seen whether there was any penetration. PW-2-victim has stated that appellant-accused is known to him as he resides at a distance of 50 steps from the house of appellant-accused. He has further stated that appellant-accused allured him by saying that he will provide Biscuit, therefore, he accompanied him to the place of occurrence, where appellant-accused laid him on “para” (paddy crop) and took out his panty to commit the unnatural intercourse with him. However, the moment appellant-accused inserted his male organ into his anus he started crying loudly and appellant-accused fled away from the place of occurrence. From this statement of victim, who is only seven years of age, penetration is not proved. From his statement, it does not appear that there was any enveloping of male organ of appellant-accused by the visited organism. Though PW-1 has also been examined to prove unnatural offences by appellant-accused, but he is not an eye witness of the occurrence. He knows nothing about the occurrence. He came to know about the occurrence when PW-2, the victim came to his house weeping and narrated the story. Thus PW-2, the victim is the only competent witness of the incident. 18. PW-2, the victim is a child witness aged about 07 years. It is, therefore, necessary to find out as to whether his evidence is corroborated from other evidence on record and to what extent. 19. In Dattu Ramarao Sakhare v. State of Maharashtra 1997 (5) SCC page 341 it has been held that a child witness is competent to depose to the facts and reliable one such evidence could be the basis of conviction. It has further been held that -- “the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his demeanour must be like any other competent witness and there is no likelihood of being tutored. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to have such evidence from other dependable evidence on record.” 20. Similarly, in Panchchi v. State of U.P. 1998 (7) SCC page 177 Hon’ble Apex Court has held that: “It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring”. 21. In Hamza v. Muhammadkutty 2013 (11) SCC 150 Hon’ble Apex Court while observing that children mix up what they see and what they like to imagine to have seen, has quoted a paragraph from the book of Glanville Williams ‘The Proof of Guilt’, Third Edition, published by Stevens & Sons: “Children are suggestible and sometimes given to living in a world of make-believe. They are egocentric, and only slowly learn the duty of speaking the truth. Hence the proposition laid down by Courts that as a rule of practical wisdom, evidence of child witness must find adequate corroboration.” 22. Now in the present case there is no independent witness to corroborate the testimony of PW-2. As nature of sexual intercourse or assault is such that it is often committed in lonely places where eye witnesses are not possible. The only corroborative evidence on which Court could have relied on was medical evidence of the victim and the blood stained panty, which was handed over by the victim to Investigating Officer, but the panty was not produced before the Court. The Investigating Officer who has been examined in the case as PW-5 has denied to have taken such a panty during investigation. This could have been an important corroborative evidence. The medical evidence also does not support penetration. The Investigating Officer who has been examined in the case as PW-5 has denied to have taken such a panty during investigation. This could have been an important corroborative evidence. The medical evidence also does not support penetration. PW-3, the medical officer, who had examined the victim after the occurrence has stated that no external injury was found around the anus of the victim. However, in absence of any corroborative evidence also, the testimony of a child witness cannot be rejected outrightly for want of corroborative evidence. The law on this point is that a child must be evaluated more carefully with a greater circumspection as he is likely to be swayed away by what others tell him. 23. In the present case, PW-2 the victim has stated the whole story as given in First Information Report. He has stated that the appellant-accused had taken him to the place of occurrence by giving allurement of providing Biscuit or “Cheese”. At the place of occurrence, the appellant-accused laid the victim on “para” (peddy crop) and after taking out victim’s panty, he started doing unnatural intercourse with the victim. PW-2 has also stated that the moment appellant-accused inserted his male organ into his anus. He cried loudly, whereupon the appellant-accused fled away from the place of occurrence. From the statement of PW-2, the victim, it appears that there was no penetration of his anus. Victim was a child of 07 years and appellant-accused was fully grown boy of 23 years. Hence, had there been insertion of male organ of 23 years boy into anus of 07 years boy, there would have been some external injury around his anus. The statement of PW-2, the victim that the moment appellant-accused inserted his male organ into his anus shows that that appellant-accused only attempted to visit the anus of victim, unsuccessfully. That was the reason why external injury was not found. The statement of victim cannot be rejected in toto for want of corroborative evidence from his statement itself. The real incident has to be deduced from the statement as a whole. It is possible that PW-2 has aggravated the story, but his total testimony cannot be rejected in toto. 24. The learned Counsel for the appellant-accused has argued that appellant-accused has been falsely implicated due to previous enmity of election of Gram Pradhan, but this statement is not substantiated by any evidence or circumstance. It is possible that PW-2 has aggravated the story, but his total testimony cannot be rejected in toto. 24. The learned Counsel for the appellant-accused has argued that appellant-accused has been falsely implicated due to previous enmity of election of Gram Pradhan, but this statement is not substantiated by any evidence or circumstance. There cannot be enmity of any person with a child of 07 years to the extent to falsely implicated the appellant-accused in a criminal case. 25. In above circumstances, though from the evidence available on record penetration is not proved to constitute an offence of unnatural sexual offence as defined under Section 377 I.P.C. or that under Section 3 of Act, 2012, but an attempt to cause penetration is sufficiently proved. The appellant-accused tried to penetrate the anus of victim. The moment he attempted to penetrate, victim cried loudly and appellant-accused left him there and fled away from the place of occurrence. An attempt to commit such an offence is punishable under Section 377/511 I.P.C. and Section 18 of Act, 2012. Trial Court could not appreciate these facts properly. 26. According to Section 511 I.P.C. an attempt to commit offence is punishable with imprisonment of any description which may extend to one-half of the imprisonment for life or, one-half of the longest term of imprisonment provided for that offence. Similarly, according to Section 18 of Act, 2012, the attempt to commit any offence under the Act is punishable with imprisonment of any description provided for the offence for a term which may extend to one half of the imprisonment for life or with fine or with both. 27. In the instant case, offence under Section 377 I.P.C. is punishable with imprisonment for life or with imprisonment for a term which may extend to ten years. Offence of penetrative sexual assault as defined under Section 3 (a) of Act, 2012 is punishable under Section 4 of Act, 2012 with imprisonment for life. Thus, for attempt to commit the offence, appellant-accused is liable to be punished for a term extending to half of the life imprisonment or imprisonment which may extend to ten years. 28. Trial Court has sentenced appellant-accused with rigorous imprisonment of 08 years and fine to the tune of Rs. 5,000/- under Section 377 I.P.C. and with 10 years rigorous imprisonment and fine of Rs. 5,000/- under Section 6 of Act, 2012. 28. Trial Court has sentenced appellant-accused with rigorous imprisonment of 08 years and fine to the tune of Rs. 5,000/- under Section 377 I.P.C. and with 10 years rigorous imprisonment and fine of Rs. 5,000/- under Section 6 of Act, 2012. As attempt to commit penetration sexual assault has been proved, which is a minor offence than offence of “aggravated penetrative sexual as well”. There is nothing on record to prove aggravated penetrative sexual assault as defined under Section 5 and punishable under Section 6 of Act, 2012. Therefore, appellant-accused is liable to be punished for a minor offence of attempt to commit “penetrative sexual assault” as defined under Section 3 (a) of Act, 2012 and punishable under Section 4 read with Section 18 of Act, 2012 and also under Section 377 I.P.C. The Trial Court has failed to properly appreciate the provisions of Section 5 of Act, 2012. 29. Keeping in view the facts and circumstances of the case, appellant-accused is convicted and sentenced with rigorous imprisonment of five years and fine to the tune of Rs. 5,000/- under Section 377 I.P.C. read with Section 511 I.P.C. and with rigorous imprisonment of seven years and fine to the tune of Rs. 5,000/- under Section 4 read with Section 18 of Protection of Children from Sexual Offences Act, 2012. In case of default of payment of fine, he shall further have to undergo imprisonment of one year. Both sentences shall run concurrently. 30. The judgment under appeal is accordingly modified and appeal is partly allowed. The judgment of Trial Court regarding payment of compensation to the complainant is maintained. 31. Let copy of this judgment be sent to Special Judge, POCSO Act, Sitapur along with record for compliance.