JUDGEMENT : G. A. SANAP, J. 1. In this appeal, challenge is to the Judgment and order, dated 15.11.2016, passed by the learned Special Judge, Wardha whereby the appellant came to be convicted for the offences punishable under Section 376(2)(i), Section 506 of the Indian Penal Code [for short ‘IPC’] and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 [for short ‘POCSO Act’] and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- and in default of payment of fine to suffer rigorous imprisonment for six months under Section 376(2)(i) of the IPC and rigorous imprisonment for two years and to pay a fine of Rs.1000/- and in default of payment of fine to suffer rigorous imprisonment for three months under Section 506 of the Indian Penal Code. No separate sentence has been awarded for the offence punishable under Section 4 of the POCSO Act. 2. The facts leading to this appeal are as follows: In order to hide the identity of the minor girl in this Judgment she is referred as ‘victim’. PW-5- Jyoti is the mother of the victim. First Information Report was registered on her oral report dated 18.01.2013. PW-5, mother of the victim, had reported to the police that the appellant Sidharth @ Bollywood Meshram was residing at his sister’s house in the same locality. The victim was born on 16.08.2005. At the time of incident the victim was studying in 2nd standard. She has stated in her report that on 18.01.2013 in the evening she came to know about the incident. She is doing work as a Maid Servant. When she came back from her work at 19:00 hours, the women from her locality namely Jangle Madam, Kale bai and mother of one Jugal were standing near her house. The victim was with them. At that time, Jangle Madam informed her that the appellant had committed outrageous act with the victim. Jangle Madam in brief narrated the incident to her. The informant took the victim to her house. On her inquiry the victim disclosed that 7 days before, the appellant on the pretext of giving chocolate took her in his house. The appellant shut the door of his house. The appellant told her that she had worn her undergarments on a wrong side. The appellant removed her undergarment as well as removed his clothes. On her inquiry the victim disclosed that 7 days before, the appellant on the pretext of giving chocolate took her in his house. The appellant shut the door of his house. The appellant told her that she had worn her undergarments on a wrong side. The appellant removed her undergarment as well as removed his clothes. The appellant slept on her body. The appellant touched his private part to the private part of the victim. The victim started shouting. The appellant gagged her mouth and threatened her not to shout. It is stated that the victim further informed PW-5 that the appellant threatened her to repeat the said act if the incident was disclosed by the victim to anybody. On the next day in the morning i.e. on 19.01.2013 PW-5 with the victim went to the Police Station and reported the matter to the police. On the basis of her report, crime bearing No. 44 of 2013, for the above offences, came to be registered against the appellant. PW-7 Vanmala Pardhi, API, attached to Wardha City Police Station conducted the investigation. She sent the victim for medical examination. She also sent the appellant, on arrest, for medical examination. PW-7 drew the spot panchnama. Various articles and blood samples were seized during the investigation. PW-7 recorded the statements of the witnesses and on completion of the investigation filed the charge-sheet against the appellant in Special Court. 3. The learned Special Judge vide Exh. 3 framed the charge against the appellant. The appellant on being explained the contents of the Charge pleaded not guilty to the charge. His defence is of total denial. In order to bring home guilt of the appellant, the prosecution examined 8 witnesses. The prosecution tendered documentary evidence. The learned Special Judge on consideration of the material on record, found the appellant guilty of the above offences and convicted the appellant and sentenced him as above. Being aggrieved by this Judgment and order, the appellant has come before this Court in appeal. 4. We have heard the learned Advocate for the appellant and learned APP for the State. We have perused the record and proceedings. 5. The learned Advocate appearing for the appellant submitted that the delay initially in reporting the incident by victim to PW-5 and PW-6 and the delay of one day in lodging the actual report has not been explained. We have heard the learned Advocate for the appellant and learned APP for the State. We have perused the record and proceedings. 5. The learned Advocate appearing for the appellant submitted that the delay initially in reporting the incident by victim to PW-5 and PW-6 and the delay of one day in lodging the actual report has not been explained. In the submission of the learned Advocate, considering seriousness of the charges, the delay ought to have been explained and in the absence of explanation the learned Judge ought to have granted the benefit of doubt to the appellant. The learned Advocate further submitted that there are material omissions and inconsistencies in the evidence of the victim as well as in the evidence of PW-5 mother of the victim and PW-6 Mrs Jangle. The learned Advocate submitted that as such there is a scope to doubt the credibility of these witnesses. The learned Advocate submitted that the evidence of the victim does not inspire confidence and therefore, the version of the victim on the point of the incident is required to be discarded. The learned Advocate submitted that the medical evidence of the examination of the victim does not corroborate the evidence of the victim as well as the evidence of PW-5 and PW-6. In the submission of the learned Advocate for the appellant, therefore, in the teeth of such a shaky evidence, the defence of the appellant of the false implication becomes probable. 6. The learned APP submitted that the evidence of Medical Officer PW-3 Dr. Krushna Shende, who had examined the victim, is cogent and reliable. The oral evidence of the medical officer has been corroborated by his medical examination report at Exh. 19. The learned APP submitted that the history of assault was narrated by victim girl to the medical officer PW-3 and it was recorded by PW-3 in Exh. 19. It is submitted that the history of assault narrated to an independent witness makes the evidence of the victim credible. The learned APP submitted that the opinion of the medical officer that the hymen was partially ruptured and which indicated the attempt of the intercourse with the victim has not at all been shaken. The learned APP submitted that the learned Special Judge found the evidence of the victim, as well as the evidence of PW-5 and PW-6, on the point of actual occurrence credible. The learned APP submitted that the learned Special Judge found the evidence of the victim, as well as the evidence of PW-5 and PW-6, on the point of actual occurrence credible. In the submission of the learned APP there is no reason to disbelieve and discard the evidence of victim and the evidence of PW-5 and PW-6. The learned APP submitted that in fact there was no delay, in as much as, the victim narrated the incident which had occurred 7 days prior to 18.01.2013. The learned APP submitted that the PW-5 has placed on record the explanation for lodging the report on the next day morning. The learned APP submitted that the Judgment and Order passed by the learned Special Judge is well reasoned and does not warrant interference. 7. We have minutely perused the evidence of the prosecution witnesses. As per the case of prosecution, on the date of the incident, the victim was about 7 years old. Exh. 103 is the birth registration certificate of the victim. The same has been admitted by the defence Advocate before the trial Court. The date of birth mentioned in this certificate is 16.08.2005. In our view, therefore, this undisputed evidence proves that on the date of the incident the victim was 7 yrs 4 months 26 days old. It is also not disputed that the appellant was residing at the house of his sister in the same locality. It has come in the evidence that there are 5-7 houses in between the house of the PW-5 and the house of the sister of the appellant, where he was resided. There is no dispute about the identification of the appellant inasmuch as he was known to the victim and to the witnesses before the incident. 8. The perusal of the Judgment of the learned Special Judge would show that on minute scrutiny and appreciation of the evidence, the learned Judge found the evidence of PW-5 & PW-6 and victim worthy of credence. In order to satisfy ourselves about the credibility and reliability of the said evidence we have minutely perused the same. The victim has categorically stated before the Court about the incident. Her evidence on the point of occurrence of the incident is consistent with the one reported to the police by PW-5. In order to satisfy ourselves about the credibility and reliability of the said evidence we have minutely perused the same. The victim has categorically stated before the Court about the incident. Her evidence on the point of occurrence of the incident is consistent with the one reported to the police by PW-5. She has stated that on the date of incident, which occurred seven days prior to 18.01.2013, she alongwith other children from her neighborhood was playing the game of hide and seek, in front of the house of the appellant. She has stated that the appellant came there. She has further stated that the appellant called her to his house on the pretext of giving chocolate. She went there. The appellant, thereafter, closed the door. The appellant told her that she had worn her knickers on wrong side. On this pretext, the appellant removed her knickers and slept on her person. In her further evidence she has stated that when she cried, the appellant gagged her mouth. The appellant after her cries set her free. She has stated that the appellant threatened her to repeat the same act, if the incident was disclosed to anybody. She has stated that she went to the house of PW-6 Jangle Madam and narrated the incident to her. She has also deposed that when her mother returned home from work she narrated the incident to her. 9. PW-8 is the child witness. Her competence to depose before the Court was verified by the learned Judge before recording her evidence. On the basis of the some of the admissions given by her, on the point of her visits to the Court on 8-10 occasions, it is pointed out that PW-8 is the tutored witness and therefore, it would not be safe to rely on her testimony. Save and except this material, despite searching cross examination, the core of her evidence has not been shaken. She has admitted in her cross examination that Jangle Madam is not her class teacher or teacher in the School, where she is studying. It has come on record in her cross examination that Jangle Madam is residing near to their house. She has further stated in her cross examination that on the date of incident, her elder sister was also playing with her. It has come on record in her cross examination that Jangle Madam is residing near to their house. She has further stated in her cross examination that on the date of incident, her elder sister was also playing with her. In further part of her cross examination she has admitted that the appellant often used to come to her house. She has denied the suggestion that the quarrel had taken place between her father and the appellant. She has denied the other suggestions put to her on the point of the incident. As far as the aspect of the penetration or intercourse is concerned, this witness has not specifically stated about it. She has stated that after removing her knickers the appellant slept on her body. In our opinion, the understanding of a child of 7 years about such an act needs to be borne in mind. The age of the victim at the time of incident was such that she was easily lured by the appellant to accompany him on the pretext of giving chocolate to her. In her evidence she has categorically stated that after removing her knickers, the appellant had removed all his clothes. In our opinion, this is very vital aspect, deposed by PW-8. The evidence of PW-8, in our opinion, is sufficient to establish the incident as narrated by the victim. The minute scrutiny of the evidence of the victim would show that she has narrated the incident occurred with her without any exaggeration. If the appellant was falsely implicated, as suggested on his behalf, then in that event the child witness would have been easily caught unaware on certain relevant aspects in her cross examination. Perusal of her cross examination would show that she could not be slightly deviated from the core and crux of her evidence touching the incident. On minute scrutiny and appreciation of her evidence we are satisfied that the possibility of tutoring the child witness has been completely ruled out. It is further pertinent to note that the parents of the victim girl would have other ways and means to take revenge of enmity, if any, they had with the appellant. The parents of the victim would not have put the future life and dignity of the victim at stake just for the sake of taking revenge. 10. It is further pertinent to note that the parents of the victim girl would have other ways and means to take revenge of enmity, if any, they had with the appellant. The parents of the victim would not have put the future life and dignity of the victim at stake just for the sake of taking revenge. 10. It is to be noted that the PW-6 Sarla Jangle is an independent witness. No material has been brought on record in her cross examination even to suggest that PW-6 was on inimical terms with the appellant or had grudge against the appellant for one reason or the other. PW-5 is the mother of the victim. As per the evidence of the victim for the first time she narrated the incident to PW-6 Jangle Madam. It would, therefore, be necessary to minutely scrutinize her evidence. She has stated that the incident took place in January 2013. She has stated that in the evening at about 7:00 p.m. when she was standing in front of her house with Smt Kale, Smt. Burkunde and Smt. Waghmare, who are also residing in the same locality, the victim came there. She has further stated that the victim told her the act committed by the appellant. In her evidence, PW-6 has specifically stated that victim told her that after removing her clothes, the appellant undressed himself and slept over her. She has further stated that the victim told her that, thereafter, the appellant did something to her private part. She has further stated that the victim told her that when she shouted, the appellant gagged her mouth and told her not to shout. She has stated after some time the mother of the victim PW-5 came there and thereafter, she narrated the incident told to her by victim to PW-5. In her cross examination she has admitted that the victim was not studying in her school. The victim was studying in different primary school. She has stated in her cross examination that the appellant is also known as Bollywood kaka. In her cross examination, her statement that she is residing near to the house of the victim and the house of the appellant is not at all disputed. Perusal of her cross examination would show that the mother of the victim used to visit her house during her working hours. Her statement was recorded by the police. In her cross examination, her statement that she is residing near to the house of the victim and the house of the appellant is not at all disputed. Perusal of her cross examination would show that the mother of the victim used to visit her house during her working hours. Her statement was recorded by the police. She had narrated all the facts to the police at the time of recording of her statement. The perusal of her evidence in entirety would show that she is an independent witness. She had no reason to falsely implicate the appellant. Perusal of her evidence would show that, being a teacher, the victim was knowing her. The victim had trust and faith in her. As stated by PW-6, she alongwith other women from the locality was standing in front of her house and at that time the victim came there and narrated the incident to her in presence of the other women. This fact would further indicate that the victim found the PW-6 a reliable and trustworthy person to disclose the incident. The learned Judge on appreciation of the evidence has accepted the evidence of PW-6, as trustworthy and reliable. We do not see any reason to take different view on the credibility and reliability of evidence of PW-6 Jangle Madam. 11. PW-5, as stated above, is the mother of the victim. The father of the victim is Attorney of one Advocate Mr. Bade at Wardha. An attempt has been made in the cross examination of PW-5 to bring on record that on the point of consuming liquor there was quarrel between the father of the victim and appellant and therefore, to take revenge the appellant was falsely implicated. It would be necessary to bear this line of cross examination in the mind while appreciating the evidence of PW-5. She has stated that the appellant is friend of her husband and therefore, he used to come to their house. While narrating her daily routine she has stated that she does work as a maid servant at 7-8 houses and comes back to her house in the evening after work. She has stated that when she came back at 7:00 p.m., she found Jangle Madam, Kale bai and mother of one Jugal standing near her house. The victim was also with them. She has stated that when she came back at 7:00 p.m., she found Jangle Madam, Kale bai and mother of one Jugal standing near her house. The victim was also with them. She has stated that at that time PW-6 Jangle Madam informed her the outrageous act committed by the appellant with the victim. In her evidence she has narrated the incident as stated by PW-6. She has further stated that the victim informed her that the appellant had touched his private part with her private part and when she started shouting the appellant gagged her mouth. She has stated that the victim told her that the incident had occurred 8 days prior. In her cross examination an attempt has been made to point out that on the point of penetration there was a material omission in her report as well as in her statement. The omission as can be seen from the report at Exh. 33 is on the point of actual use of a word ‘private part’. However, the sum and substance of her report is that there was an attempt by the appellant to do some act at her private part on 2-3 occasions. 12. This witness was subjected to searching cross examination, but the same has not made her evidence shaky. In her cross examination she has admitted that her husband works as an Attorney with an Advocate Mr. Bade and the said Advocate had come to their house on that day. The omission as to the private part has been properly recorded by the learned Judge. The remaining cross examination would show that she has not exaggerated the incident or facts related to incident. Perusal of her cross examination would also show that no material has been elicited in her cross examination to make the defence of the appellant probable. On the contrary, the perusal of her cross examination would show that the appellant would come to her house with her husband. This would indicate that they were on good terms. In our opinion, this could be one of the reasons for the victim to trust the appellant when he lured her to his house on the pretext of giving chocolate. 13. The evidence of victim girl, PW-5 Jyoti and the evidence independent witness PW-6 Sarla Jangle has not been shaken in the cross examination. In our opinion, this could be one of the reasons for the victim to trust the appellant when he lured her to his house on the pretext of giving chocolate. 13. The evidence of victim girl, PW-5 Jyoti and the evidence independent witness PW-6 Sarla Jangle has not been shaken in the cross examination. On minute scrutiny and appreciation of the evidence we have not come across any material to discard or disbelieve the said evidence. The searching cross examination has not made the said evidence shaky and unbelievable. No dent has been caused to the core of their evidence on the point of the incident. The evidence is sufficient to prove that the appellant indulged in the act narrated by them. 14. In this context, it would be necessary to appreciate the evidence of the medical officer. PW-3 Dr. Krushna Shende had examined the victim. On examination PW-3 has opined that the hymen of the victim was partially ruptured indicating an attempt of intercourse with the victim. Exh. 19 is the medical examination report of the victim. A perusal of the report would show that the history of the assault or incident was recorded by the medical officer, as narrated by the father and victim. In cross examination the medical officer has stated that the history of the assault or incident was narrated by the victim first and later on by her father. He has further admitted that while playing cycle or while playing, the hymen can be ruptured. Relying upon this admission, it is submitted that the opinion of the medical officer that the victim was subjected to attempt of sexual intercourse based on the partially ruptured hymen, cannot be relied upon. It is to be noted that the incident of sexual assault took place 8 days prior to the examination of the victim. The victim in her evidence narrated the actual incident. In our opinion, the evidence of the medical officer is a very vital piece of evidence. The same corroborates the oral evidence of the victim PW-8, PW-5 & PW-6. The victim girl at the time of incident was 7 years old. It is not the defence of the appellant that while playing a cycle or due to fall while playing, the hymen of the victim got ruptured. The evidence of the medical officer is independent. The same corroborates the oral evidence of the victim PW-8, PW-5 & PW-6. The victim girl at the time of incident was 7 years old. It is not the defence of the appellant that while playing a cycle or due to fall while playing, the hymen of the victim got ruptured. The evidence of the medical officer is independent. The opinion of the medical officer is based on the examination of the victim and the symptoms found by him. Therefore, we do not see any reason to discard and disbelieve his evidence. 15. The learned Advocate took us through the evidence of PW-2 Dr. Jaichand Moon, who had examined the appellant. The report of the examination of the appellant given by the PW-2 is at Exh. 16. One of the objects behind his medical examination was to get a concrete opinion about the capability of the appellant to perform sexual act. PW-2 has stated that no opinion was given by him as to whether the appellant could perform sexual intercourse or not. He has further stated that he had not applied any test on the appellant to come to the conclusion that he is able to perform sexual intercourse or not. In our view, this opinion given by PW-2 medical officer seems to be without conducting any test on the appellant. It is further pertinent to note that the medical officer has not given a negative opinion stating that he is not at all capable to perform sexual act. If the opinion had been negative then the same would have carried some weight. PW-2 had collected his blood as well as his semen samples. The perusal of his evidence would show that without conducting the proper test the opinion was given. The manner of examination of the appellant and the opinion indicate that the PW-2 did not take proper care. Be that as it may, since the opinion is not negative, the same could not extend any help to the appellant. 16. The other evidence relied upon by the prosecution is of the panch witness about the spot panchanama and collection of samples. The evidence of the Investigating Officer would show that during the course of investigation the seized articles and the samples collected by the medical officer PW-2 and PW-3 were forwarded to the CA for analysis. The reports of CA have been admitted by the appellant. The evidence of the Investigating Officer would show that during the course of investigation the seized articles and the samples collected by the medical officer PW-2 and PW-3 were forwarded to the CA for analysis. The reports of CA have been admitted by the appellant. The CA did not detect the semen or blood on the articles seized from the house of the appellant. The investigating officer PW-7 has deposed that she drew the spot panchnama in presence of the panch witness. The panch witness PW-1 to the spot has turned hostile. However, the evidence of the investigating officer is sufficient to accept the case of the prosecution that after lodging the report, PW-7 paid visit to the spot and on examination of the spot drew the spot panchanama. The occurrence of the incident in the house of the appellant has been stated by eye witnesses PW-5, PW-6 and victim PW-8. The investigating officer in her evidence has described the spot in great detail. The investigating officer is an independent witness. No material has been brought on record in her cross examination to suggest the possibility of false implication of the appellant in this case. 17. On minute scrutiny and appreciation of the evidence, we found that the evidence adduced by the prosecution is sufficient to prove the charge. The learned Special Judge has recorded the reasons for accepting the evidence adduced by the prosecution. On re-appreciation of evidence, we do not see any reason to discard and disbelieve the evidence and take a view different from the one taken by the learned Special Judge in this case. 18. The learned Advocate for the appellant to substantiate his submission placed reliance on the decision in the case of Hari Om @ Hero. v/s. State of Uttar Pradesh, reported in (2021) 4 SCC 345 and the decision of the Division Bench of this Court at Principal Seat Bombay in Criminal Appeal No. 1006 of 2019, in the case of Ali Mohammed Shaikh. v/s. State of Maharashtra, decided on 14.12.2020, that no reliance can be placed on the evidence of PW-8 victim being a child witness, in view of the discrepancies on material aspect noticed in her evidence. v/s. State of Maharashtra, decided on 14.12.2020, that no reliance can be placed on the evidence of PW-8 victim being a child witness, in view of the discrepancies on material aspect noticed in her evidence. In the case of Hari Om @ Hero (supra) Hon’ble Apex Court has held that in the absence of corroboration to the child witness, the evidence of a child witness with discrepancies on material aspect cannot be made the basis to convict the accused. Same is the view of the Division Bench in the case of Ali Mohammed Shaikh (supra). In our opinion, for the reasons recorded herein above on the point of credibility of the evidence of child witness and the credibility of independent witnesses PW-5 and PW-6 to corroborate the evidence of child witness on material aspect, the proposition would be of no help and assistance to the case of the appellant. In the case before Hon’ble Supreme Court as well as the Division bench of this Court there was no corroboration at all to the evidence of a child witness. The facts brought on record and the evidence of a child witness in those cases was found unreliable. In our opinion, in the case in hand, the evidence has been found fully reliable. The corroborative evidence available on record lends an assurance to the evidence of victim. 19. We, therefore, conclude that on merits there is no substance in the appeal. The appeal, therefore, deserves to be dismissed. 20. On the quantum of a sentence, the learned Advocate for the appellant pointed out that the incident occurred in January 2013. The offence proved against the appellant is under Section 4 of the POCSO Act and under Section 376(2)(i) of the IPC. The learned Advocate submitted that considering the punishment provided for this offence before amendment of Section 4 of the POCSO Act, with effect from 16.08.2019, the learned Judge was not right in awarding sentence of life imprisonment to the appellant. The learned Advocate submitted that the appellant was 40 years old at the time of the incident. It is submitted that considering his age and other circumstances, the learned Judge ought to have taken a lenient view while awarding the sentence. It is seen that no separate sentence has been awarded under Section 4 of the POCSO Act. The learned Advocate submitted that the appellant was 40 years old at the time of the incident. It is submitted that considering his age and other circumstances, the learned Judge ought to have taken a lenient view while awarding the sentence. It is seen that no separate sentence has been awarded under Section 4 of the POCSO Act. Before amendment to Section 4 of the POCSO Act, the punishment provided for committing penetrative sexual assault, shall not be less than 7 years but which may extend to imprisonment for life and shall also be liable to fine. Before amendment to Section 376(2)(i) of the IPC, with effect from 21.04.2018, the punishment provided for committing penetrative sexual assault, on a child below 16 years of age, shall not be less than 10 years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life. Section 376-AB has been inserted in the IPC with effect from 21.04.2018 which provides punishment for rape on a woman under 12 years of age. The punishment prescribed is similar to the one prescribed under Section 4(2) of the POCSO Act namely imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for remainder of that person’s natural life. 21. In this case, considering the mitigating and aggravating circumstances placed on record, in our view, the sentence awarded by the learned Judge would be dis-proportionate in the peculiar facts and circumstances. In our considered opinion, the rigorous imprisonment for a period of 12 years would meet the ends of justice. We, therefore, conclude that on the quantum of sentence, the order passed by learned Special Judge would be required to be modified. 22. We appreciate the able assistance extended by the learned APP Shri S. S. Doifode and learned Advocate Shri R. R. Vyas, at the request of this Court. ORDER i] Appeal is dismissed with the following modification in the substantive sentence. ii] The sentence of imprisonment for life awarded by the learned Special Judge is modified. The appellant is sentenced to suffer rigorous imprisonment for 12 years, for the offence punishable under Section 376(2)(i) of the Indian Penal Code with a benefit of set-off as provided by the trial Court. ii] The sentence of imprisonment for life awarded by the learned Special Judge is modified. The appellant is sentenced to suffer rigorous imprisonment for 12 years, for the offence punishable under Section 376(2)(i) of the Indian Penal Code with a benefit of set-off as provided by the trial Court. iii] The fees payable to Shri R. R. Vyas, learned Advocate appointed for the appellant from the High Court Legal Services Sub Committee, Nagpur, is quantified at Rs.15,000/-. The criminal appeal stands disposed of.