JUDGMENT : 1. By the present appeal, the appellant is challenging judgment and order of conviction dated 15.1.2018 passed by learned Special Judge, Nagpur in Special Child Protection Case No.63/2015. 2. By the impugned judgment, the appellant (hereinafter referred to as, “the accused” for the sake of brevity) is convicted for offence punishable under Section 4 read with Section 3 of the Protection of Children from Sexual Offences Act, 2012 (for short, “the POCSO Act”) and is directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.50,000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 1 year. The accused is also convicted for offence punishable under Section 384 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.4000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 2 months. The accused is also convicted for offence punishable under Section 506 Part-I of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.1000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 1 month. Learned Judge below directed that all the sentences shall run concurrently and directed that the accused is entitled for set-off under Section 428 of the Code of Criminal Procedure since the accused is in jail since 11.1.2015. 3. The prosecution case starts with oral report (Exhibit 17) by victim (PW2). The oral report of the victim was recorded by a Woman Police Constable Chitra in presence of Assistant Police Inspector Shri Dilip Manohar Rathod (PW8) who was attached in the year 2016 as duty officer at Pachpaoli Police Station. The oral report was forwarded to him after registration of crime and accordingly he registered the crime vide Crime No.11/2015 for offences under Section 377 of the Indian Penal Code read with Section 3(a), 4, 7, and 8 of the POCSO Act and under Section 135 of the Bombay Police Act, 1951. 4. In short, as per the oral report (Exhibit 17) of the victim, at the relevant time he was school going boy and aged about 14 years. He used to reside with his mother and elder brother. His mother works in a private company to manage family. 4. In short, as per the oral report (Exhibit 17) of the victim, at the relevant time he was school going boy and aged about 14 years. He used to reside with his mother and elder brother. His mother works in a private company to manage family. Sandip Pande, the accused is also resident of vicinity wherein the victim is resident and, therefore, the victim was knowing the accused. According to the report, prior to 5-6 months of lodging of the report, the accused by giving threat of knife took him to a public lavatory and after removing his as well as the victim's clothes asked the victim to touch the private Part- of the accused and, thereafter, he sodomized the victim. After the act of sodomy, again a threat was extended by the accused that the victim should not disclose the said fact to anybody. The oral report states that thereafter many a time the victim was threatened by the accused not to disclose the fact, otherwise he will be defamed in the society and used to demand money from him. 5. It is further stated in the First Information Report that on 4.1.2015 the accused obstructed the victim and demanded money from him. Therefore, the victim stole money from the locker of his mother in the house to the tune of Rs.400/-. However, on 9.1.2015 when the mother checked her locker, she noticed shortfall in the amount and, therefore, made enquiry with the victim. On that, the victim got frightened and, therefore, to get truth from the victim, his mother slapped him and, thereafter, the victim disclosed atrocities committed on him by the accused. 6. Dilip Rathod (PW8), after registration of the crime, visited the spot of the incident which was shown by the victim. It was a public lavatory at Bhoslewadi, Motibagh, Nagpur. He prepared panchnama of the spot (Exhibit 15) in presence of Chandrakant Pradeep Gajbhiye (PW1). He also arrested the accused under arrest panchnama (Exhibit 59). Further investigation was handed over to Assistant Police Inspector Shri Arjun Keshao Ghodepatil (PW6). On being entrusted with the investigation, Ghodepatil sent the victim boy and the accused for their medical examination to doctor. He sent seized property to Chemical Analyzer also added Section 386 of the Indian Penal Code and presented charge-sheet. 7. Further investigation was handed over to Assistant Police Inspector Shri Arjun Keshao Ghodepatil (PW6). On being entrusted with the investigation, Ghodepatil sent the victim boy and the accused for their medical examination to doctor. He sent seized property to Chemical Analyzer also added Section 386 of the Indian Penal Code and presented charge-sheet. 7. The accused was charged under Sections 377, 506, and 386 of the Indian Penal Code and under Section 3 punishable under Section 4 of the POCSO Act. 8. In order to prove the charge against the accused, the prosecution examined in all 11 witnesses. The accused also examined one defence witness. According to the defence, the mother of the victim was not paying repair charges for repairs done to Television by the accused. It is also his defence that when he demanded money, the victim boy abused him and, therefore, he slapped him and that is the reason he is falsely implicated in the crime. 9. After hearing learned Public Prosecutor who was in-charge of the brief, learned defence counsel, and appreciating entire prosecution case, learned Judge below passed the impugned judgment. Hence, the appeal. 10. I have heard learned counsel Mrs. S.K. Paunikar appointed through the High Court Legal Services Sub Committee at Nagpur to represent the accused and learned Additional Public Prosecutor Shri A.M. Joshi for the respondent/State. 11. Learned counsel Mrs. S.K. Paunikar for the accused submitted that the accused is falsely implicated in the crime. It is also her submission that the victim at the relevant time was not child within the meaning of definition of the Child in the POCSO Act. Therefore, the conviction for the offence under the POCSO Act is required to be set aside. She also submitted that the prosecution case is false one on account of lodging of the report after 5-6 months of the incident. She, therefore, submitted that the appeal be allowed and the accused be set free. 12. Per contra, learned Additional Public Prosecutor Shri A.M. Joshi for the respondent/State submitted that the prosecution duly proved that on the day of the incident and at the time of lodging of the First Information Report, the victim was child by examining Headmistress Kahkashan Anjum Qureshi (PW10) working at Bhola Primary School, Motibag, Nagpur and teacher Ashok Sukhdeo Motghare (PW11) working in Sangam Higher Primary School, Bhoslewadi, Nagpur. He submitted that medical evidence in the nature of medical examination conducted by Dr. Sachin Giri (PW5) shows that the victim was sodomized. He, therefore, submitted that the appeal be dismissed. 13. First question that this Court is required to answer is as to whether the victim was child at the relevant time of the incident and at the time of lodging of the First Information Report. 14. In the oral report (Exhibit 17), the victim disclosed his age as 14 years and the incident of sodomy, as per the report, occurred prior to 5-6 months of lodging of the report in the Pachpaoli Police Station on 10.1.2015. 15. Kahkashan Anjum Qureshi is PW10. As per her evidence, since 2010, she wasb working at Bhola Primary School, Motibag, Nagpur as Headmistress. She attended Court along with the School Admission Register and Admission Application submitted by the mother of the victim and his School Leaving Certificate of previous school. Her evidence shows that in the year 2006 the victim was student in 1st Std. at Sangam Higher Primary School, Bhoslewadi, Nagpur. Headmistress Qureshi deposed that School Leaving Certificate of Sangam Higher Primary School, Bhoslewadi, Nagpur was presented at the time of admission of the victim in the 2nd Std.. The said certificate is at Exhibit 78. In the said certificate, date of birth of the victim is mentioned as 5.7.2000. As per evidence of Headmistress Qureshi, the mother of the victim submitted an application for the victim's admission at Bhola Primary School, Motibag, Nagpur on 19.6.2006. The said application is at Exhibit 77 and in the said application also date of birth of the victim is shown as 5.7.2000. She also proved entry in General Register (Admission Register) which is at Exhibit 76. Perusal of the said would show that name of the victim is appearing at serial No.1118 and his date of birth is shown as 5.7.2000 and he was admitted in the school in 2nd Std. 16. The evidence of Headmistress Qureshi was challenged on the ground that Exhibit 77, the application was not filled in her presence. However, her evidence that the mother of the victim submitted the application for admission in the school, is not challenged at all during her cross-examination. 16. The evidence of Headmistress Qureshi was challenged on the ground that Exhibit 77, the application was not filled in her presence. However, her evidence that the mother of the victim submitted the application for admission in the school, is not challenged at all during her cross-examination. On the contrary, through her cross-examination it is brought on record that except Exhibits 77 and 78 no other document was submitted to the school by the parents of the victim. 17. The prosecution has also examined Ashok Sukhdeo Motghare (PW11), Incharge Headmaster of Sangam Higher Primary School, Bhoslewadi, Nagpur wherein the victim was admitted in 1st Std.. Through him, the prosecution has proved Admission Register which is at Exhibit 83. Perusal of Exhibit 83 shows that name of the victim is at Exhibit 4389 and the victim was admitted in the said school on 8.8.2005 in 1st Std. and date of birth is shown as 5.7.2000. 18. From the evidence of Headmistress Qureshi (PW10) and Incharge Headmaster Motghare (PW11), it is clear that the victim was admitted firstly at Sangam Higher Primary School, Bhoslewadi, Nagpur on 8.8.2005 in 1st Std. and, thereafter, he was shifted to Bhola Primary School, Motibag, Nagpur after obtaining transfer certificate from Sangam Higher Primary School, Bhoslewadi, Nagpur. In all the documents duly maintained during regular course of the school business, date of birth of the victim is consistently shown as 5.7.2000. In view of the aforesaid, there is no hesitation in my mind that the prosecution has proved date of birth of the victim as 5.7.2000 and, therefore, he was child within the meaning of definition of child under the POCSO Act. 19. Dr. Sachin Giri (PW5) examined the victim on 12.1.2015. Medical Certificate of the victim is placed on record and it is at Exhibit 19. After obtaining consent from the mother of the victim, the doctor recorded history. In the history, it is mentioned that the victim narrated to the doctor that after the first incident of sodomy, the accused used to regularly sodomize the victim. On local examination of the victim, the doctor found there was funnel shaped depression, dilation of sphincters, smoothness of anal mucosa and sphincter dilated about 3 cms. in diameter, lax. On digital examination, anal sphincter admits two fingers easily without any pain. On local examination of the victim, the doctor found there was funnel shaped depression, dilation of sphincters, smoothness of anal mucosa and sphincter dilated about 3 cms. in diameter, lax. On digital examination, anal sphincter admits two fingers easily without any pain. According to opinion of two doctors, “the subject is a habitual sodomite and is well accustomed to such unnatural sexual acts for some time since past. 20. According to learned counsel for the accused, there is a delay in lodging the First Information Report. Perusal of the First Information Report reveals that it is lodged after about 4-5 months of the first act of sodomy. The delay itself is never fatal for the prosecution. It is always open for the prosecution to explain and/or offer reasons for lodging of the report at belated stage either during inquiry or investigation or during the Trial. If the explanation or reason for delay is offered and it is accepted by the Court, then in that event the delay loses its importance. 21. In the present case, at the time of the first incident, the boy was only 14 years of age. He was taken to a public lavatory in the night hours when he was returning from tuition. The accused extended threats by showing a knife to him and took him in a public lavatory and committed unnatural sex with him and, thereafter, also he used to extend threats that the victim should not disclose the act done to him otherwise he will defame the victim in the society. At the relevant time, as per evidence of the victim (PW2), he was studying in 10th Std. The accused is fully grown person aged about 30 years and is an electrician and he extended threat by showing a knife and threatened that he will defame the victim in the society. According to the victim, that was the reason he did not disclose the atrocious act committed to him by the accused to anybody. In my view, looking to the age and looking to the nature of the threats and the acts of sodomy done on the boy, it is but natural on the Part- of the victim not to disclose the fact to anybody. 22. In my view, looking to the age and looking to the nature of the threats and the acts of sodomy done on the boy, it is but natural on the Part- of the victim not to disclose the fact to anybody. 22. As per the First Information Report and as per the evidence of the victim corroborated by his mother (PW3), it is clear that in view of the threats given by the accused, the victim was required to steal Rs.400/- kept in locker by his mother from his house and gave the same to the accused. It is also clear from the oral report (Exhibit 17), evidence of the victim and his mother that on 9.1.2015 only the mother of victim got knowledge about shortage of money requiring her to enquire with the victim about the same and, therefore, for the first time on 9.1.2015 the act of sodomy at the hands of the accused was revealed. In my view, the prosecution properly explained the delay. Therefore, the submission of learned counsel for the accused, that the prosecution case is required to be discarded on account of the delay, is required to be rejected. 23. The accused examined one defence witness by name Vikas Govind Kamble (DW1). He is having a shop and in front of the said shop there is a public lavatory. According to the prosecution, this public lavatory is the place of occurrence. By examining Vikas, the defence tried to bring it on record that persons ingress and egress into the lavatory are visible from his shop. According to the defence, Vikas would not have missed the act of the accused taking the victim inside the lavatory. However, in the cross-examination conducted by the prosecution it is brought on record that shop's timings of Vikas are from 8:00 a.m. to 8:00 p.m. Unchallenged version of the victim shows that on the day of the incident, after attending his tuition class, he was returning to his house at about 10:00 p.m. and at that time under the threats he was taken inside the lavatory. In view of the unchallenged version, the evidence of the defence witness, especially when he closes his shop at 8:00 p.m., has no relevance for the defence. 24. The testimony of the victim is free from improvement and embellishment except that omission of words 'ladies lavatory'. In view of the unchallenged version, the evidence of the defence witness, especially when he closes his shop at 8:00 p.m., has no relevance for the defence. 24. The testimony of the victim is free from improvement and embellishment except that omission of words 'ladies lavatory'. The testimony of the victim is duly corroborated by the evidence of Dr. Sachin Giri (PW5) and the medical certificate (Exhibit 19). 25. Learned Judge below, in my view, evaluated the prosecution case in correct perspective and recorded the findings of guilt against the accused. 26. On re-appreciation of the entire prosecution case, I affirm the findings recorded by learned Judge below. 27. Consequently, the criminal appeal fails and is dismissed. 28. Fees payable to learned counsel Mrs. S.K. Paunikar, who is appointed by the High Court Legal Services Sub Committee at Nagpur to represent the appellant, are quantified at Rs.5000/-.