JUDGMENT : V.M. DESHPANDE, J. 1. By the present appeal, the appellant is challenging judgment and order of conviction dated 23.5.2017 passed by learned Special Judge (POCSO Act) and Additional Sessions Judge, Nagpur in Special Criminal Case No. 85/2014. 2. By the impugned judgment and order of conviction, the appellant (hereinafter referred to as “the accused” for the sake of brevity) is convicted for offences punishable under Sections 323, 363 and 377 of the Indian Penal Code and under Section 4 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act” for the sake of brevity). Sentences awarded to the accused were of 6 months, 3 years and 5 years along with different fine amount on each count. Learned Judge of the Court below also directed that all the sentences to run concurrently. 3. I have heard learned counsel Shri L.B. Khergade for the accused and learned Additional Public Prosecutor Shri M.K. Pathan for the respondent/State. Both learned counsel took me through in detail notes of evidence of prosecution witnesses and other relevant documents available in paper-book as well as in record and proceedings. 4. According to learned counsel Shri L.B. Khergade for the accused, in absence of any positive medical evidence, the accused cannot be convicted for offence punishable under Section 377 of the Indian Penal Code, therefore, his conviction and sentence for offence punishable under Section 4 of the POCSO Act is untenable. He also submitted that independent witness Yadav, who made phone call to father of victim, is not examined by the prosecution. He submitted that said Yadav was not cited as a witness and that is fatal for the prosecution. He, therefore, submitted that the appeal is required to be allowed and the accused, who is in jail after the conviction, is required to be released forthwith. 5. He submitted that said Yadav was not cited as a witness and that is fatal for the prosecution. He, therefore, submitted that the appeal is required to be allowed and the accused, who is in jail after the conviction, is required to be released forthwith. 5. Per contra, it is submission of learned Additional Public Prosecutor Shri M.K. Pathan for the respondent/State that evidence of two doctors i.e. Shri Sachin S/o Subhash Giri (PW-4) and Sandipkumar S/o Manohar Gajbhiye (PW-6) clearly establishes fact that to some extent there was penetration of the male organ of the accused in the anus of the victim and in view of fact that the victim is a child within the meaning of the POCSO Act, learned Judge of the Court below rightly convicted the accused for the offences punishable under Section 377 of the Indian Penal Code and under Section 4 of the POCSO Act and awarded minimum punishment as prescribed under Section 4 of the said Act. He also submitted that Exhibit 20, chemical analyzer's report in respect of mud particles, clearly clinches issue in favour of the prosecution. He supported reasoning as supplemented by learned Judge of the Court below and, therefore, submitted that the appeal be dismissed. 6. Abid Sheikh S/o Adil Sheikh (PW-2), father of the victim, lodged report with Jaripatka Police Station. His oral report is at Exhibit 29. On the basis of the said report, a crime was registered, as Crime No. 101/2014, for offences punishable under Sections 363, 377, and 506 of the Indian Penal Code and under Sections 7 and 8 of the POCSO Act. Printed First Information Report is at Exhibit 30. From evidence of Police Inspector Shri Budhan S/o Pandurang Sawant (PW-7), who conducted investigation, it is clear that first informant Abid Sheikh came to the police station for lodging the report and woman Police Sub Inspector Shrikhande reduced into writing his report as per his narration. 7. Learned counsel Shri L.B. Khergade for the accused submitted that in absence of examination of woman Police Sub Inspector Shrikhande, the prosecution has not proved the First Information Report. 7. Learned counsel Shri L.B. Khergade for the accused submitted that in absence of examination of woman Police Sub Inspector Shrikhande, the prosecution has not proved the First Information Report. The said particular submission has to be rejected at the threshold itself since first informant Abid Sheikh (PW-2) specifically stated in his evidence that as per his say the report was reduced into writing and when the said report was brought to his notice, while he was in witness box, he admitted contents and his signature and, thereafter, it was exhibited as Exhibit 29. Therefore, the oral report of Abid Sheikh is duly proved. Exhibit 30 is printed form of the First Information Report. 8. Police Inspector Shri Budhan Sawant (PW-7) took up investigation after registration of the crime. His evidence shows that in view of memorandum statement (Exhibit 65) of the accused, he seized clothes of the accused and a motorcycle which was used for taking the victim from Nagpur to Khairi jungle. The said were seized under recovery panchnama (Exhibit 66). His evidence further shows that after conducting usual investigation, chargesheet was filed. After presentation of the chargesheet before learned Magistrate, learned Magistrate found that the offences are exclusively triable by the Court of Sessions and, therefore, he committed the case to the Court of Sessions. After committal, the case was registered as Special Criminal Case No. 85/2014. Learned Special Judge framed charge against the accused under Sections 363, 377, 506 and 323 of the Indian Penal Code and under Section 4 of the POCSO Act. The accused abjured his guilt and claimed for his trial. 9. In order to bring home the guilt of the accused, the prosecution examined in all 8 witnesses and also relied on various documents duly proved during course of the Trial. After completion of the Trial, learned Judge of the Court below found that the prosecution was successful to bring home the guilt of the accused and passed the impugned judgment. 10. Question that, the Court is required to decide, is as to whether the charge under the POCSO Act was correctly framed against the accused. In order to attract the provisions of the POCSO Act, it is an incumbent upon the prosecution to prove that the victim is a child within the meaning of the provisions of the said Act. 10. Question that, the Court is required to decide, is as to whether the charge under the POCSO Act was correctly framed against the accused. In order to attract the provisions of the POCSO Act, it is an incumbent upon the prosecution to prove that the victim is a child within the meaning of the provisions of the said Act. In Clause (d) of Sub section (1) of Section 2, definition of “child” is defined. As per the said clause “child” means any person below the age of eighteen years. 11. In order to prove that victim (PW-1) was child, the prosecution examined Smt. Sunita W/o Anil Borkar (PW-8) and also relied on documentary evidence Exhibits 76 and 78. According to the prosecution, date of birth of the victim is 10.1.2000. 12. As per evidence of Smt. Sunita Borkar (PW-8), she is a headmistress of Advocate Dadasaheb Kumbhare Vidyalaya, Khasala, Tahsil Kamptee, District Nagpur since year 2000. She deposed that the victim is a bona fide student of the school in which she is headmistress. At the time of deposition, she stated that the victim is taking education in 9th Std. Before the Court, she brought original Admission and Leave Register with her and filed a photocopy of concerned page of the register. The said is at Exhibit 76. The name of the victim is appearing in the said register at serial No. 641 and date of birth of the victim is noted as 10.1.2000. It is to be noted that at the time of admission of the victim in the school, he was in 7th Std. and he took his transfer from Kendriya Uccha Prathamik Shala Khasala and took admission in which Sunita Borkar (PW-8) is headmistress. She placed on record transfer certificate of the said school which was given to school i.e. Advocate Dadasaheb Kumbhare Vidyalaya. Even, in the said transfer certificate date of birth of the victim is mentioned as 10.1.2000. The said certificate is at Exhibit 77. In addition to the same, bona fide certificate is also placed on record and it is at Exhibit 78 that shows date of birth of the victim as 10.1.2000. 13. Further, in cross-examination of the victim it is brought on record by the defence that his date of birth is 10.1.2001. The said certificate is at Exhibit 77. In addition to the same, bona fide certificate is also placed on record and it is at Exhibit 78 that shows date of birth of the victim as 10.1.2000. 13. Further, in cross-examination of the victim it is brought on record by the defence that his date of birth is 10.1.2001. Also, the father of the victim stated in his examination-in- chief the date of birth of the victim as 10.1.2001. The date of the incident is 23.2.2014. Therefore, whether the date of birth of the victim is 10.1.2000 or 10.1.2001. Surely, on the day of the incident, age of the victim was below 18 years and, therefore, the victim was a child within the meaning of the provisions of the POCSO Act. In that view of the matter, the provisions of the POCSO Act will apply with its full force and vigour. 14. First Information Report is lodged by Abid Sheikh S/o Adil Sheikh (PW-2), the father of the victim. In the report itself he stated that he is lodging report as per narration given to him by his son, the victim. 15. Learned counsel Shri L.B. Khergade for the accused submitted that insofar as the act of commission of unnatural offence is concerned, except evidence of victim (PW-1), there is no evidence of any independent witness. He, therefore, submitted that on the basis of uncorroborated testimony of the victim from any independent witness benefit of doubt will have to be extended in favour of the accused. 16. The aforesaid contention of learned counsel Shri Khergade for the accused, in my considered opinion, holds no water. Offences like committing of rape and unnatural sex are always committed at a secluded place. Perpetrators of such crime took care and precaution that the heinous acts done by them should not be watched by anybody. In the present case, as per the victim, heinous act upon him was committed at jungle of Khairi situated at Nagpur Jabalpur Road. 17. Exhibit 33 is spot panchnama. The said is duly proved by Mohd. Rais Ahemad Siddiqui (PW-3). Recitals of the panchnama and sketch appearing in it clearly show that away from Nagpur Jabalpur highway inside jungle is the spot of occurrence. 17. Exhibit 33 is spot panchnama. The said is duly proved by Mohd. Rais Ahemad Siddiqui (PW-3). Recitals of the panchnama and sketch appearing in it clearly show that away from Nagpur Jabalpur highway inside jungle is the spot of occurrence. Thus, it is crystal clear that the place of occurrence is not only far away from Kamptee where the victim recites but it is jungle and a secluded place. If that be so, there is remotest possibility of the heinous act of the accused being watched by anybody. In addition to that, the act is done after 6:15 p.m. in the month of February 2014 and there was no source of light also it being jungle. In view of these particular aspects, I have no difficulty to reject the contention of learned counsel Shri L.B. Khergade for the accused that the case of the prosecution is required to be discarded for not having any independent witness. 18. Even otherwise, in the cases for offences punishable under Section 377 of the Indian Penal Code, testimony of the victim is of paramount importance. If testimony of a victim inspires confidence in the judicial mind, the sole testimony is sufficient to record a finding of guilt. If the prosecution is coming in the Court that some atrocious is done on victim and if the Court is of the view that the testimony of victim is not inspiring full confidence, then only Court searches for corroborative piece of evidence which supports case of the prosecution and testimony of victim. 19. In the present case, from the date of birth of victim (PW-1) it is clear that he was adolescent. In any case, his age was below 15 years. Identity of the accused at the hands of the victim was not in dispute at any point of time. 20. The testimony of the victim shows that at the time of the incident he was in 7th Std. and on the day of the incident he was required to go out of his house along with his brother since they were asked by their father to purchase a “Zandu Balm (medicine)” as he was suffering from headache. This particular testimony of the victim finds due corroboration from evidence of PW-2, father of the victim. According to him, after purchasing the medicine, when they were returning back to their home, the accused met him. This particular testimony of the victim finds due corroboration from evidence of PW-2, father of the victim. According to him, after purchasing the medicine, when they were returning back to their home, the accused met him. The evidence of the victim, that the brother of the accused was residing in his neighbourhood and the accused used to come there and, therefore, he was knowing the accused, is not challenged by the defence and even before this Court learned counsel Shri L.B. Khergade for the accused submitted that the victim was knowing the accused and vice-versa. As per the evidence of the victim, the accused requested the victim to accompany him since he was to bring a window and he, therefore, took him on his motorcycle to Khairi jungle. Even, this important piece of material disclosed before the Court from the witness box by the victim is not at all challenged by the defence when the victim was available for the cross-examination. On the contrary, by seizing the motorcycle under recovery memo Exhibit 65 it is clear that the accused was possessing the motorcycle. 21. It is further evidence of the victim that at Khairi jungle the motorcycle was stopped and he was asked to alight from the motorcycle and, thereafter, the accused removed his clothes so also the clothes of the victim and, thereafter, he inserted his male organ into his anus. It is evidence of the victim that the accused was doing the said act for about 10 minutes and since he was having pains, ultimately he pressed private part of the accused and ran away from the spot and went to Hanuman Temple. There, he met with some person who made a phone call to his father and reached him to his father. This particular evidence of the victim, that he met a person at Hanuman Temple and the said person made a phone call to his father, is not at all challenged. On the contrary, in the First Information Report, first informant, the father of the victim, stated that he received a phone call from mobile No. 8806522186 and that time it was disclosed to him that his son is with the caller and ultimately it is evidence of the father that the said caller reached the victim to him. On the contrary, in the First Information Report, first informant, the father of the victim, stated that he received a phone call from mobile No. 8806522186 and that time it was disclosed to him that his son is with the caller and ultimately it is evidence of the father that the said caller reached the victim to him. It is submission of learned counsel for the accused that the person, who made the phone call, is not examined by the investigating officer. If the investigating officer commits lapses, for that the victim or his family members cannot be held responsible and for lapses on the part of the investigating officer the Court cannot be allowed the justice to be the victim. 22. On 24.2.2014, two doctors namely Shri Sachin Giri (PW-4) and Sandipkumar Gajbhiye (PW-6) examined the victim at Mayo Hospital Nagpur. Medical report of the victim is available on record at Exhibit 36. As per evidence of these doctors, on local examination it was found that anus was dilated and admitted one finger without pain, however there was no injury. According to Dr. Sachin Giri (PW-4), full act of unnatural sexual intercourse with dilation of anus by normal size adult penis could not have been possibly done. However, as per his opinion, partial penetration might have been done. On the basis of this, learned counsel for the accused submitted that the accused is required to be acquitted by extending benefit of doubt. Though at the first blush his submission appears to be attractive, on closure scrutiny of the entire prosecution case and in the light of the observation in Exhibit 36 affirmed by both the doctors from the witness box that when the victim was produced before them they noticed mud stains present on T-Shirt and Jeans Pant, it appears that this particular aspect is having its own importance that would be detailing in later part. Suffice it to say that in the cross-examination of Dr. Sachin Giri (PW-4) it is brought on record that only if there is an act of full intercourse, there is possibility of injury on the person of the victim. Through his examination before the Court it is brought on record that in each and every case availability of evidence is not must. Sachin Giri (PW-4) it is brought on record that only if there is an act of full intercourse, there is possibility of injury on the person of the victim. Through his examination before the Court it is brought on record that in each and every case availability of evidence is not must. In that behalf, in my view, the nature of the injuries is also dependent on several factors and the signs may not be perceptible in cases where the active agent has introduced his penis slowly and carefully without using force into the anus of the victim. 23. This is crystal clear in view of the cross-examination of Dr. Sachin Giri (PW-4). After collection of the evidence, Muddemal properties including soil taken from the spot of the incident were sent to chemical analyzer. Exhibit 20 is report of Regional Forensic Science Laboratory stating that earth put in polythene which was from the spot and earth on jeans full pant of the victim in respect of hue and physicochemical characteristics tallied with each other which clearly establish and complete chain of the prosecution case and corroborate the evidence of the victim that he was taken to Khairi jungle by the accused and there atrocious was committed on him. Since the doctors did not find any external injury, at the most, it can be said to some extent the victim was exaggerating the incident, if the prosecution case is scanned as a whole, I have no hesitation in my mind to record a finding that after keeping aside some exaggerated portion from the evidence of the victim, his evidence is having grain of truth and there is no falsehood in the prosecution case. 24. It will have to be noted here that from the line of the cross-examination of the prosecution witnesses and when the accused was examined by learned Judge of the Court under Section 313 of the Code of Criminal Procedure, it was defence of the accused that he is falsely implicated in the crime at the behest of one Shaikh Istar. According to the defence, this Shaikh Istar deals in scrap business and the accused is also involved in the said business and, therefore, to eliminate his business rivalry Shaikh Istar utilized the victim as a tool. According to the defence, this Shaikh Istar deals in scrap business and the accused is also involved in the said business and, therefore, to eliminate his business rivalry Shaikh Istar utilized the victim as a tool. This particular defence is required to be rejected for, (i) there is nothing available on record to show that there was very close intimacy and/or relationship in the family of the victim with Shaikh Istar except that they belong to the same religion and (ii) it is really unbelievable that PW2, the father of the victim will put prestige of his family as well as future of his minor victim at stake for and on behalf of Shaikh Istar. Further, except suggestion there is no material available on record to show the business rivalry between Shaikh Istar and the accused. 25. Learned counsel for the accused submitted that no semen stain was found either on the clothes of the victim or on the clothes of the accused and in that behalf the chemical analyzer's report is negative. Answer to this particular submission is very simple if the testimony of the victim is carefully examined. The victim never claims that he feels discharge of anything including semen while the act was being perpetrated on him. Even, the doctors are not specifically stating that there was a full unnatural act but the possibility of penetration they were not ruling out and which is found to be truthful as observed in the preceding paragraph, after scrutinizing the evidence of the victim and other material especially chemical analyzer's report Exhibit 20. 26. The accused is convicted for offence punishable under Section 4 of the POCSO Act also. Section 4 of the said Act makes penetrative sexual assault punishable. Penetrative sexual assault under Section 3 of the said Act is defined 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. (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. (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. (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. (d) he applies his mouth to the penis, vagina, anus, urethra of the child makes the child to do so to such person or any other person.” 27. Thus, reading of the aforesaid clearly brings the case of the prosecution within four corners of clause (a) of Section 3 of the POCSO Act. 28. In that view of the matter, the conviction and the sentence under Section 377 of the Indian Penal Code and under Section 4 of the POCSO Act is perfectly justified. 29. On re-appreciation of the entire prosecution case, there is no hesitation in my mind to affirm the impugned judgment and order. Hence, the criminal appeal fails and is dismissed.