JUDGMENT : S.G. PANDIT, J. 1. The accused in Spl. Case (POCSO) No. 71/2015 on the file of the Special Judge and Additional District and Sessions Judge at Bidar has filed this appeal impugning the judgment of conviction dated 26.12.2016 and order of sentence dated 28.12.2016 whereby the accused is convicted for the offences punishable under sections 376 (2) of the Indian Penal Code, 1860 (for short the ‘IPC’) and Sections 6 and 5 (m) (n) of the Protection of Children from Sexual Offences Act, 2012 (for short the ‘POCSO Act’). Appellant accused is sentenced to undergo life imprisonment and to pay fine of Rs. 10,000/- each for the offences punishable under Section 376 (2) of IPC and section 6 of POCSO Act. 2. The investigation against the accused commenced by the Manthal police on the information filed by the victim's mother Smt. Mumtaz on 23.06.2015 stating that she along with her husband and two children Ibrahim and Saniya aged 4 and 3 years respectively are residing at Ladvanti village and eking out life by coolie work. On 23.06.2015 at about 7.00 a.m. after feeding the children, both the complainant and her husband went to coolie work. At about 1.00 p.m. the complainant came back to her house and she could not find her children in the house. In search of her children she went to her sister-in-law's house. In her sister-in-law's house her husband Khursheed S/o Mohammad @ Anwar Khan was holding her daughter Saniya's mouth in one hand and was committing sexual intercourse with her daughter Saniya. On seeing the complainant, the accused ran away by pushing the complainant. Further the complainant states that victim Saniya was in tears and blood was oozing from her private part. Thereafter she called her husband over telephone and thereafter they went to the police station and submitted complaint stating that the accused has committed rape on her 3 years daughter and requested to take action against him. 3. The Manthal police registered FIR in Crime No. 72/2015 on 23.06.2015 against the accused for the offences punishable under Section 376 of IPC and Section 5 (m) (n) and 6 of POCSO Act. Thereafter the accused was arrested. 4. The statement of victim and her mother was recorded under Section 164 of Cr.P.C. on 25.06.2015. 3. The Manthal police registered FIR in Crime No. 72/2015 on 23.06.2015 against the accused for the offences punishable under Section 376 of IPC and Section 5 (m) (n) and 6 of POCSO Act. Thereafter the accused was arrested. 4. The statement of victim and her mother was recorded under Section 164 of Cr.P.C. on 25.06.2015. The Investigating Officer filed final report against the accused for the offences punishable under Section 376 of IPC and Section 6 of POCSO Act. The bail application filed by the accused was rejected by the trial court and application for suspension of sentence in this appeal is also rejected. The appellant is in custody since his arrest on 23.06.2015. The Special Court, after hearing, has framed charges against the accused for offences punishable under Section 376 of IPC as well as sections 5 (m)(n) and 6 of POCSO Act. The accused pleaded not guilty and prayed for trial. The prosecution, among others examined the complainant mother of the victim, father of the victim, doctor who examined the victim as well as accused, Investigation Officer and the person who recorded the statement of victim and mother under Section 164 of Cr.P.C. who supported the prosecution case. 5. The accused in his statement recorded under Section 313 Cr.P.C. denied evidence against him and accused has not led any evidence. The defence of the accused from the material on record appears to be one of total denial. 6. Heard the learned counsel for the appellant Sri. B.C. Jaka and learned Addl. SPP for the State. Perused the entire trial court records. 7. The learned counsel for the appellant-accused mainly contends that the prosecution has failed to prove the charge and the entire case is fabricated. Further the learned counsel would submit that there is nothing on record to implicate the accused. The prosecution witnesses PWs-6 to 9 relative of the complainant and accused have not supported the prosecution case and have turned hostile. The trial court convicted the accused based on the evidence of interested persons. The allegations made against the accused by PW-2 mother of the victim is too vague and trial court committed an error in accepting PW-2 evidence. It is his submission that the impugned judgment of conviction and order of sentence is opposed to facts, probabilities, circumstances and law. Thus, he prays for allowing the appeal. 8. Learned Addl. The allegations made against the accused by PW-2 mother of the victim is too vague and trial court committed an error in accepting PW-2 evidence. It is his submission that the impugned judgment of conviction and order of sentence is opposed to facts, probabilities, circumstances and law. Thus, he prays for allowing the appeal. 8. Learned Addl. SPP submits that the impugned judgment is well reasoned and prosecution has proved its case beyond reasonable doubt. The evidence of PW-2 and PW-3 mother and father of the victim is consistent and reliable. There is no reason to disbelieve their evidence. Further, he submits that PWs-10 and 11 doctors who examined the victim as well as the accused supported the case of the prosecution. Even though prosecution witnesses PWs. 6 to 9 turned hostile, they have partly supported the case of the prosecution. Thus, he prays for dismissal of the appeal. 9. We have given our thoughtful consideration to the submissions of both the counsels and have perused the records of the trial court. 10. On hearing the learned counsels and on perusal of records, the only point for consideration is as to whether the judgment of conviction and order of sentence requires interference. The answer to the above point would be in the negative for the following reasons. 11. In this appeal this Court must re-appreciate the entire evidence on record to find out as to whether finding recorded by the trial court is perverse or contrary to law, which requires interference with the judgment of conviction and order of sentence. In the case on hand, charge against the accused is under Section 376 (2) of IPC and sections 5 (m)(n) and 6 of POCSO Act. There is no dispute with regard to the age of the victim i.e. 3 years. As such, the provisions of the POCSO Act would be attracted. When a person is prosecuted for the offences under the provisions of the POCSO Act, in view of Section 29 of POCSO Act, the court shall presume that, such person has committed or attempted to commit or abated the offence. The burden of establishing foundational facts would be on the prosecution and only if the prosecution discharges such burden, the burden of rebutting the presumption would shift to the accused. The burden of establishing foundational facts would be on the prosecution and only if the prosecution discharges such burden, the burden of rebutting the presumption would shift to the accused. The prosecution in the present case has discharged its initial burden and the accused has failed to rebut the burden. The prosecution in all examined 19 witnesses as PWs. 1 to 19 and got marked Exs.P-1 to P-17 apart from M.Os. 1 and 2. No evidence was led on behalf of the appellant-accused. 12. The gist of the testimony of the witnesses examined on behalf of the prosecution is as follows: (a) The victim Saniya aged about 3 years was examined as PW-1. After few questions with regard to her name and about parents, the court has recorded that PW-1 is of tender age and she is not in a position to understand the question and answer and concluded that under Section 118 of the Evidence Act PW-1 is not a competent witness. (b) Mother of the victim Smt. Mumtaz is examined as PW-2. She has reiterated the complaint averments stating that PW-1 is her daughter aged 3 years and resident of Ladvanti village. CW-13 Peeramma is sister of her husband and wife of the accused. Accused along with CW-13 are residing in nearby rented house. It is five minutes distance between accused and their house. Further she states that on the day of incidence after providing food to their children both complainant and her husband had left for coolie work at 7.00 a.m. When the complainant returned at 1.00 p.m. PW-1 was not in the house. When she went in search of PW-1 to CW13’s house, two children of CW-13 were sleeping and accused was sexually assaulting her daughter. On seeing the complainant, accused ran away from the spot. Further she states that accused in one hand closed the mouth of the victim and was raping her child. Due to which blood was coming out from private part of the victim. As complainant was in tears PW-7, 8, 9 and 11 came to the spot and she called her husband over mobile phone. Her daughter was crying and her condition was pretty serious. On submitting complaint to the police station, police arranged for medical examination of the victim and further she states that at the time of medical examination she was present. Her daughter was crying and her condition was pretty serious. On submitting complaint to the police station, police arranged for medical examination of the victim and further she states that at the time of medical examination she was present. (c) PW-3 is father of the victim and husband of PW-2. PW-3 deposes that PW-1 is his daughter aged 3 years and PW-2 is his wife. He resides in Ladvanti village along with his family. Accused along with his wife PW13 resides in a rented house which is about five minutes distance. Further he states that on the day of incident his wife called him from his brother’s mobile and informed that his daughter Saniya was sexually assaulted by the accused and she asked him to come to the spot. He also states that when he went to the spot his daughter was serious and blood was coming out from her private part. Along with his wife and victim daughter he went to Manthal police station and filed complaint against the accused. His daughter PW-1 was sent to hospital for medical check up. (d) PW-4 is witness to spot mahazar. He has stated that accused identified the spot where the offence had taken place and at that time he also said that victim and her mother were present. He identifies his signature on the mahazar. PW-5 is owner of the pan shop near the house of the accused who deposes that on the date of incident at 1.00 p.m. when he was standing at the pan shop accused was running out of his house, PW-2 was crying and when enquired she stated that accused had committed rape on her daughter. PW-6 to PW-9 brother of PW-3, wife of PW-6, neighbours of accused respectively, even though turned hostile, have partly supported the case of the prosecution in the cross-examination stating that PW-2 standing in front of the house of the accused was telling that accused committed rape on PW-1. (e) PW-10 is doctor who examined the victim PW-1 on 23.06.2015 on the date of the incident. In her testimony she states that as per Ex.P-9 she was requested to examine the victim. On examination she found that blood was coming out from the private part of the child. Further she states that injury was found outside the vaginal part of the child. Child was physically and mentally strained. In her testimony she states that as per Ex.P-9 she was requested to examine the victim. On examination she found that blood was coming out from the private part of the child. Further she states that injury was found outside the vaginal part of the child. Child was physically and mentally strained. Further the doctor states that as there is injury on the private part of the victim child there is rape and sexual assault on the child. (f) PW-11 is one Dr. Somnath who examined the accused on 24.06.2015. On examination he states that accused is capable of sexual intercourse and there is no bodily injury. PW-18 is Investigating Officer and PW-19 is the person who recorded statement of the minor victim and statement of PW-2 under Section 164 of Cr.P.C. 13. PW-1 is victim Saniya aged about 3 years. Her statement under Section 164 was recorded by PW19. The statement of the victim is marked as Ex.P-20. PW-19 in his testimony states that the victim three years girl child by sign she lifted her shirt and showed her private part to say that she was sexually assaulted. Further she deposes that the mother of the victim stated that the accused holding her daughter was committing rape and blood was dropping on both the legs and on seeing her the accused ran away. PW-2 Mumtaz, mother of the victim PW-1 has categorically stated that the accused by holding her daughter was sexually assaulting. She is an eyewitness to the incident. There is no reason to disbelieve the evidence of PW-2 mother of the victim PW-1. It is pertinent to note that no mother would come forward to give any false statement in the matter of rape or sexual assault on her daughter. Therefore, it cannot be said that the accused is convicted based on the evidence of interested witness. Moreover, the evidence has gone unchallenged as there is no cross-examination. 14. Evidence of PW-2 mother of the victim is cogent and acceptable and is also corroborated with the evidence of PW-10 doctor who examined the victim. PW-10 doctor in her evidence has made it clear that on examination of the victim-child, blood was oozing from the private part and there was injury outside the vagina of the child. 14. Evidence of PW-2 mother of the victim is cogent and acceptable and is also corroborated with the evidence of PW-10 doctor who examined the victim. PW-10 doctor in her evidence has made it clear that on examination of the victim-child, blood was oozing from the private part and there was injury outside the vagina of the child. Further, PW-10 doctor has categorically stated that as there is injury to the private part of the child there is rape or sexual assault on the child. 15. The victim-child is aged about 3 years. She was examined as PW-1. On putting questions with regard to her name and details about her parents, the trial court has rightly come to the conclusion that she is not a competent witness as per Section 118 of the Evidence Act. Under Section 118 of the Evidence Act every witness is competent, unless the court considers he is prevented from understanding the questions put to him or from giving the rational answers by reason of tender age, extreme old age and disease, whether body or of mind, or any other cause of the same kind. Every person is competent unless the court considers otherwise. Rightly in the instant case as the victim was of the age 3 years and was of very tender age, she was not in a position to understand the questions and to give rational answers. 16. The contention of the learned counsel for the appellant that the prosecution has failed to prove the ingredients of section 5 of the POCSO Act and as such no offence is made out under POCSO Act cannot be accepted. Accused is charged under Section 5 (m)(n) of POCSO Act. Section 5(m) would state that whoever commits penetrative sexual assault on a child below 12 years and section 5(n) states that whoever being a relative of the child or having a blood relationship with a parent of the child, commits penetrative sexual assault on such child, is said to commit aggravated penetrative sexual assault. Penetrative sexual assault is defined and described under Section 3 of the POCSO Act. PW2 mother of the victim is the eyewitness who has deposed that the accused was holding the victim and was committing sexual assault on the victim PW-1. When PW-2’s evidence is corroborated by evidence of PW-10 doctor, nothing more is required to prove the penetrative sexual assault on PW-1. PW2 mother of the victim is the eyewitness who has deposed that the accused was holding the victim and was committing sexual assault on the victim PW-1. When PW-2’s evidence is corroborated by evidence of PW-10 doctor, nothing more is required to prove the penetrative sexual assault on PW-1. Further the relationship of the accused with PW-3 father of the victim is not denied, in that accused is husband of the sister of PW-3 father of the victim. Thus, the prosecution has proved the ingredients of Sections 5 and 6 of the POCSO Act as well as Section 376(2) of IPC. The act of the accused is inhuman and when accused sexually assaults a three year girl child it cannot be looked lightly. Court has to deal with such persons mercilessly. 17. Looking from any angle the appellant has not made out any ground to interfere with the judgment of conviction and order of sentence of the trial court. The same deserves to be confirmed. There is no perversity or illegality in the impugned judgment. The appeal is devoid of merit and the same is accordingly dismissed.