JUDGMENT : SWAPNA JOSHI, J. 1. Challenge in this Appeal is to the judgment and order dated 07.11.2017 in Spl.Child Case No.133/2016 delivered by learned Additional Sessions Judge, Nagpur, convicting the appellant for the offence punishable under section 376(2)(i)(j) & (l) of the Indian Penal Code and Section 6 of the Protection of Child from Sexual Offences Act (POCSO). For the offence punishable u/s 376(2)(i)(j) and (l) of the IPC, the appellant was sentenced to suffer RI for ten years and fine of Rs. 1000/-, in default, SI for one month; whereas for offence punishable u/s 6 of the POCSO Act, to suffer RI for ten years and fine of Rs.1000/-, in default, SI for one month. Both the sentences were directed to be run concurrently. 2. Brief facts giving rise to the instant Appeal may be summarized as under:- PW3-victim, aged about fifteen-years-old at the relevant point of time, was a mentally-impaired girl residing at Panubali, Tq.Kalmeshwar, Dist. Nagpur and was studying in IXth standard. The appellant/accused was also the resident of the same village. On 29.1.2015 at about 9.00 pm, PW3-victim left her house for answering nature’s call. Since she did not return till 10.00 pm, her brother, PW4- Premraj and her mother PW2-Sumanbai started searching. While searching, PW4 -Premraj went near the School building situated in front of their house. He noticed the appellant coming from the back side of the said building. PW4 went behind the school in order to search his sister and he returned back to his house. He found his sister infront of their house. The clothes of the victim were full of dust and her hair were scattered and she was in a frightened condition. PW4 called his mother and brother and enquired with the victim as to what had happened. On this, the victim informed them that while she was coming from the open space, one person from their village called her; she went near him. The person caught hold of her hands and took her behind the school. He gagged her mouth and threatened to kill her. The person then removed her salwar and knicker and committed forcible sexual intercourse with her. PW4 then remembered that when he was searching his sister towards the school, he had noticed the appellant coming from back side of the school and rushing towards his house. He gagged her mouth and threatened to kill her. The person then removed her salwar and knicker and committed forcible sexual intercourse with her. PW4 then remembered that when he was searching his sister towards the school, he had noticed the appellant coming from back side of the school and rushing towards his house. PW4 immediately went to the house of the appellant. The appellant first denied to have committed such an act. PW4 then brought the appellant to his house. The victim immediately identified the appellant and he confessed to have committed rape on PW3-victim. The victim also showed the place of the incident. Thereafter PW4 proceeded to the Police Station and lodged his report (Exh.19). 3. On the basis of the said report, the API PW6- Dayanand Sawant registered the offence. PW6 then sent the victim for medical examination to the Government Hospital. PW6 then visited the place of incident and conducted the spot panchnama (Exh.30). From the place of incident, he collected the soil. PW6 then arrested the appellant during the same night. PW7 API-Dharmendra Joshi, seized the clothes of the appellant under panchnama (Exh.36). He took charge of the clothes of the victim vide panchanama (Exh.38). As the victim was mentally unsound, PW7 referred the victim to the hospital for her examination. He also sent all the seized articles to CA for its analysis. After completion of investigation, charge-sheet was filed in the Court of JMFC. The case was committed to the Court of Sessions. Charge was framed. The defence of the appellant was of total denial. The learned trial Judge after recording the evidence and hearing both sides, convicted the appellant as aforesaid. Hence, this Appeal. 4. I have heard Mrs.H.S.Dhande, learned Advocate (appointed) for the appellant as well as Ms. M.A. Barabde, learned APP for the respondent-State. With their able assistance, I have gone through the record and proceedings of the case. Learned Advocate for appellant vociferously argued that considering the stringent provisions under the POCSO Act, it is to be minutely viewed, whether the prosecution has proved its case beyond reasonable doubt. She contended that the learned trial Judge has not assessed the evidence led by the prosecution witnesses in its proper perspective and has erroneously convicted the appellant. 5. Learned Advocate for appellant vociferously argued that considering the stringent provisions under the POCSO Act, it is to be minutely viewed, whether the prosecution has proved its case beyond reasonable doubt. She contended that the learned trial Judge has not assessed the evidence led by the prosecution witnesses in its proper perspective and has erroneously convicted the appellant. 5. Per contra, the learned APP supported the impugned judgment and contended that since the victim was a mentally retarded girl, the appellant took undue advantage of the situation and has followed her behind the School while she was attending the nature’s call and committed forcible sexual intercourse with her. It is submitted that immediately the appellant was noticed by the PW4-Premraj, brother the victim. The appellant was shown to the victim who, in turn, identified the appellant as a culprit. It is submitted that even the CA report also supports the case of the prosecution as the soil which was taken charge of from the place of incident, was found on the jeans pant of the appellant, who came to be arrested immediately after the incident and identified by the victim. It is submitted that the prosecution has proved its case beyond reasonable doubt and the learned trial Judge has rightly convicted the appellant. 6. In order to consider the rival contentions of both sides, it would be advantageous to go through the evidence led by the prosecution witnesses rather minutely. At this juncture, it is significant to note that the defence has not seriously disputed the age of the PW3-victim. It is the case of the prosecution that at the time of the incident, she was below the age of 18-years. According to PW2-Sumanbai, mother of the victim, PW3-victim was born in the year 2000. Thus, as the incident had taken place on 29.1.2015 the victim must be of 15-years and 4-months old. According to PW4-Premraj, the brother of the victim, the victim was aged about 15 years old at the time of the incident. The school leaving certificate (Exh.14) and the birth certificate (Exh.15) produced by PW2, mother of the victim, showed her date of birth as 4.9.2000. Significantly, the said factum has not been challenged by the defence in the cross-examination of PW2-Sumanbai. 7. The school leaving certificate (Exh.14) and the birth certificate (Exh.15) produced by PW2, mother of the victim, showed her date of birth as 4.9.2000. Significantly, the said factum has not been challenged by the defence in the cross-examination of PW2-Sumanbai. 7. Now coming to the evidence led by the prosecution witnesses with regard to the incident in question, the prosecution has examined in all eight witnesses and heavily relied upon the testimony of PW3-victim. PW3-victim deposed that at about 9.00 pm, she was returning back after attending the nature’s call. She saw one person sitting there. The said person called her, caught hold of her hands, gagged her mouth and brought her behind the School. Thereafter he removed her clothes; so also removed the clothes on his person and inserted his private part into her private part. He threatened not to disclose the incident to anyone else he would kill her. After wearing her clothes she came to her house. She saw her bother PW4-Premraj. At that time her clothes were stained with soil; she was frightened and was shivering. PW3 disclosed the incident to her mother. Thereafter, her bother brought appellant along with him who was identified by her. Then her mother proceeded to the Police Station. The police recorded her statement and she was referred for medical examination. 8. Significantly, in the cross-examination, the testimony of PW3 is not at all shattered. On the contrary, it was brought in her cross-examination that there was arrangement of light between her house and the school. The said fact indicates that the victim had an ample opportunity to see the face of the appellant. Even the identity of the appellant has not been challenged in the cross-examination. There is nothing to disbelieve the testimony of PW3. Her testimony corroborates with the deposition of her brother, PW4-Premraj, who is the first informant. 9. According to PW4-Premraj, on 29.1.2015 at about 9.00 pm, his sister had gone to attend the nature’s call and his mother asked him as to why the victim had not returned back. They both went in search of her. While searching, PW4 went to the back side of the school. He saw the appellant coming from that place at about 9.00 pm. At that time, his sister was near the house; her face and clothes were stained with soil; she was in a totally disheveled condition. They both went in search of her. While searching, PW4 went to the back side of the school. He saw the appellant coming from that place at about 9.00 pm. At that time, his sister was near the house; her face and clothes were stained with soil; she was in a totally disheveled condition. PW4 deposed that his mother enquired with the victim and she disclosed that one boy brought her behind the school, removed her clothes and committed rape on her. Thereafter the said boy went to his house. PW 4 brought the said boy and showed it to his sister; she identified that boy. Thereafter PW4 along with his mother went to the Police Station and informed the said incident to the police. Police brought the appellant to their house and showed him to his sister. His sister identified the appellant. PW4 even showed the place of the incident to the police and thereafter they returned to the Police Station. Police recorded his oral report (Exh.18). It was stated by PW4 during his cross-examination that his sister is mentally retarded. During his exhaustive cross-examination, nothing adverse could be elicited. 10. The testimony of PW4-Premraj is corroborated with the testimony of his mother PW2-Sumanbai. PW2 also deposed on the same lines. She deposed that as her daughter went to attend the nature’s call and did not return for considerable period of time, she along with her son searched for her. Her son went behind the school and noticed the appellant fleeing from the spot. Her son brought the victim to their house. PW2 categorically deposed that the victim was in a frightened condition and her clothes were stained with soil. Her daughter narrated the incident to her and informed that when she went to attend the nature’s call and while returning back, the appellant called her, held her hand, brought her behind the school, removed her clothes and slept on her. Her son Premraj went to the house of appellant and showed the appellant to her daughter and her daughter identified the appellant. PW2 deposed that thereafter they proceeded to the Police Station and the report came to be lodged. PW2 also admitted in her cross-examination that the spot of incident is situated near her house and between her house and School there is light. PW2 also stated that since her childhood her daughter is mentally unsound. 11. PW2 deposed that thereafter they proceeded to the Police Station and the report came to be lodged. PW2 also admitted in her cross-examination that the spot of incident is situated near her house and between her house and School there is light. PW2 also stated that since her childhood her daughter is mentally unsound. 11. Thus, on careful scrutiny of the testimony of prosecution witnesses, it is noticed that the PW3-victim in a very natural way deposed before the court. There are no improvements or embellishments in her version. Furthermore, there was no reason for the entire family of the victim to falsely implicate the appellant in a heinous offence, by putting the reputation of family at stake. There was no animosity brought on record by the appellant during the cross-examination of the witnesses, in order to show that he was falsely implicated in the present case. As discussed above, the first information report was promptly lodged by PW4, brother of the victim. There are no material discrepancies in the version of any of the prosecution witnesses. Moreover, as mentioned earlier, the testimony of PW2-Sumanbai, mother and PW4-Premraj brother, corroborates with the testimony of the PW3-victim, on all material particulars. Even there is no dispute with regard to the identity of the appellant. Thus, the testimony of the prosecution witnesses PW2-Sumanbai, PW3-victim and PW4-Premraj is found to be reliable and trustworthy. There is nothing to disbelieve the testimony of these witnesses. 12. Now coming to the medial evidence of the victim on the point that she was mentally unsound, the testimony of PW1-Shwetabri Borghare, Clinical Psychologist, demonstrates that during the examination of the victim, she was found to be a mentally retarded girl inasmuch as though her age was about 15 years and four months, her mental age was about seven years and two months and her intelligent quotient was 46%. PW1-Shwetambri Borghare issued the necessary medical certificate, which is at Exh.12. 13. In order to show that the PW3-victim was subjected to forcible sexual intercourse, the evidence of the Medical Officer PW8-Dr. Vaishali Deshmukh depicts that one Dr. Sarah from Forensic Department examined the victim. She noticed that fresh contusion of 1 x 2 cm, on her left breast lateral aspect; on local examination it was found that her hymen was torned, however there was no bleeding. Vaishali Deshmukh depicts that one Dr. Sarah from Forensic Department examined the victim. She noticed that fresh contusion of 1 x 2 cm, on her left breast lateral aspect; on local examination it was found that her hymen was torned, however there was no bleeding. The Medical Officer opined that the possibility of sexual intercourse /assault cannot be ruled out. According to PW8-Dr. Vaishali the patient had mentioned the history of sexual assault upon her on the previous evening. She noticed that the clothes of the victim were stained with dust so also her undergarments were stained with dust. Thus the medical evidence corroborates with the ocular testimony of the victim. As far as CA report (Exh.47) is concerned, it exhibits that the soil collected from the place of incident tallied with the jeans pant and banian worn by the appellant. The CA report further demonstrates that the jeans pant of the appellant was stained with blood; however it found to be washed. In this context,it may be mentioned here that the appellant was arrested immediately after the incident and thereafter he was sent for medical examination. 14. In the case of Aman Kumar and another v. State of Haryana, (2004) 4 SCC 379 , the Hon’ble apex Court has held as under :- “5. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional.” 8. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. 9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word “attempt” is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. 10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in partexecution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.” 15. In case of identification of the accused by the witnesses, an useful reference of the decision of the Hon’ble Apex Court in the case of S. vs. Sunil Kumar and another, (2015) 8 SCC 478 , more particularly para nos. 11 and 13 is to be made, which read thus, 11. It has consistently been held by this Court that what is substantive evidence is the identification of an accused in court by a witness and that the prior identification in a test identification parade is used only to corroborate the identification in court. Holding of test identification parade is not the rule of law but rule of prudence. Normally identification of the accused in a test identification parade lends assurance so that the subsequent identification in court during trial could be safely relied upon. However, even in the absence of such test identification parade, the identification in court can in given circumstances be relied upon, if the witness is otherwise trustworthy and reliable. The law on the point is well-settled and succinctly laid down in Ashok Debbarma, (2014) 4 SCC 747 . 13. However, even in the absence of such test identification parade, the identification in court can in given circumstances be relied upon, if the witness is otherwise trustworthy and reliable. The law on the point is well-settled and succinctly laid down in Ashok Debbarma, (2014) 4 SCC 747 . 13. In Malkhansingh v. State of M.P., (2003) 5 SCC 746 in a similar situation where identification by the prosecutrix for the first time in court was a matter in issue, this Court observed : 16.....She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. 16. There is no question of mistaken identity in the instant case. The victim immediately identified the accused in front of her mother and brother. The brother of victim confirmed the identity of the culprit and then proceeded to the Police Station. Moreover, there was sufficient light at the place of the incident. Even the identity of accused is not at all challenged in cross-examination. The prosecution has thus established its case beyond reasonable doubt. 17. It is worth noting that the Parliament has enacted the POCSO Act, 2012 with an object to prevent children from the offence of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child. 18. Thus, the facts and circumstances as well as the judicial pronouncements (supra), go to show that the prosecution has proved its case beyond reasonable doubt. The learned trial Judge has assessed the evidence led by the prosecution in its right perspective. No interference with the impugned judgment is called for. Hence, the order ORDER: (i) Criminal Appeal No. 620/2017 is dismissed. (ii) The professional fees of the Advocate appointed for the appellant, are quantified at Rs.5000/- (rupees five thousand) only.