JUDGMENT : SANJAY KUMAR JAISWAL, J. 1. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) is directed against the judgment of conviction and order of sentence dated 14.02.2020 passed by the Special Judge under Protection of Children from Sexual Offences Act, 2012, Janjgir, District Janjgir-Champa, Chhattisgarh in Special Sessions Trial No. 50 of 2019. By the impugned judgment, the appellant has been convicted under Section 376 (a), (b) of IPC & Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) and sentenced greater degree under Section 6 of POCSO Act to undergo rigorous imprisonment for 20 years and to pay fine of Rs.1,000/- in default of payment of the fine amount, he would further undergo imprisonment for 3 months. 2. The case of the prosecution, in brief, is that on 13.12.2019, Saroj Tiwari (PW-3) lodged a written complaint (Ex.P/1) stating that between 04.00-04.30 P.M. she was returning along with her husband to Janjgir from Sector Kosmanda of Baloda after attending the meeting of Anganwadi Workers. When she reached Darrabhata, she saw that a minor girl is travelling with the driver of motorcycle bearing registration No. CG-11/B/2845. The girl was sitting in the front of the motorcycle and the driver of the motorcycle was suspected. After that, Saroj Tiwari (PW-3) and her husband stopped the motorcycle near Ishika Hotel, at that time, the driver of the motorcycle turned the motorcycle and went towards the cremation ground where the appellant tried to outrage her modesty with a minor girl. When the complainant along with her husband reached the spot, the appellant tried to run away from the place of the incident, but the husband of the complainant caught hold of the appellant and called the Police. 3. On a complaint of Saroj Tiwari (PW-3), Police personnel of Police Station Janjgir, District Janjgir-Champa, Chhattisgarh registered Crime No. 532 of 2019 for the offences punishable under Section 376 of Indian Penal Code, 1860 (for short ‘IPC’) and Sections 4, 6 of POCSO Act against the appellant. Thereafter, wheels of investigation started running, in which, crime details form was prepared vide Ex.P/3. Spot Map was prepared vide Ex.P/4. Panchnama was prepared vide Ex.P/5. Prosecutrix was sent for medical examination, the report of which is filed vide Ex.P/6. Thereafter, wheels of investigation started running, in which, crime details form was prepared vide Ex.P/3. Spot Map was prepared vide Ex.P/4. Panchnama was prepared vide Ex.P/5. Prosecutrix was sent for medical examination, the report of which is filed vide Ex.P/6. The appellant was also sent for medical examination, the report of which is filed vide ExP/7. The seized article has been sent for examination vide Ex.P/8A and a query report has been obtained vide Ex.P/8. Memo regarding providing of Spot Map has been placed vide Ex.P/9. The undergarment of the appellant, as well as the motorcycle of the appellant and one register, were seized vide Ex.P/10 to Ex.P/12. The appellant has been arrested vide arrest/court surrender memo Ex.P/13. Memo for Forensic Science Laboratory (for short ‘FSL’) report was requisitioned vide Ex.P14, receipt of which is placed on record vide Ex.P/15. FSL report has been obtained vide Ex.P/16, in which, after examination of the underwear of the appellant, semen was found present on it. Copy of relevant page of the register on which article was seized has been placed Ex.P/17C. Memo has been sent to the Headmaster of Primary School, Lachhanpur for providing the attendance register of the prosecutrix vide Ex.P/18 and a copy of the relevant page of the attendance register has been obtained vide Ex.P/19C. The admission certificate of the prosecutrix has been obtained vide Ex.P/20 where the date of birth of the prosecutrix has been mentioned as 14.04.2009. 4. In order to establish the guilt of the appellant/accused, the prosecution examined as many as 10 witnesses and exhibited 22 documents. The statement of the appellant/accused was recorded under Section 313 of the Cr.P.C. in which, he denied the charges levelled against him and pleaded his innocence and false implication in this case. The appellant/accused has neither examined any witnesses nor exhibited any documents in his defence. 5. After hearing the parties, the trial Court by judgment impugned, has convicted and sentenced the appellant/accused as mentioned in paragraph-1 of the judgment. Hence, the present appeal. 6. Learned counsel for the appellant/accused submits that the medical report does not support the case of the prosecution and no external or internal injury was found over the body of the prosecutrix. He further submits that in the medical report, only redness over the private part of the prosecutrix has been found which can be possibly caused due to the motorcycle ride. He further submits that in the medical report, only redness over the private part of the prosecutrix has been found which can be possibly caused due to the motorcycle ride. He next submits that the police influenced the prosecutrix just before the date of her witness before the Court below by taking her to the police station and there is fair chance that the prosecutrix has given an afterthought statement. There is material contradiction and omission in the statement of the prosecution witnesses. As per the facts and circumstances of the case and the oral and documentary evidence available on record, there is an exceptional case made out for acquittal of the appellant/accused also the sentence is liable to be suspended. The appellant is innocent and has been falsely implicated in the instant case. Learned trial Court erred in ignoring that the prosecution has failed to prove the case beyond reasonable doubt. The learned trial Court erred in ignoring the settle principle law regarding the burden of proof upon the prosecution to prove the case beyond all reasonable doubt and probability but in the present case the learned trial Court has prima facie convicted the accused/appellant on the basis of suspicion which is illegal, improper and contrary to the law, therefore, the accused/appellant is liable to be acquitted in the interest of justice. In support of his argument, he placed reliance on the decisions of the Supreme Court in the matters of Prahlad vs. State of Rajasthan, AIR 2018 SC (Supp.) 2586 and Jayantibhai Mohanbhai Patel (PADARIA), AIR 2018 SC (Supp.) 1259. 7. Per contra, learned Panel Lawyer for the State/respondent would support the impugned judgment and submit that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering all incriminating materials and circumstances available against the appellant/accused has rightly convicted him for the offence, he has charged. Hence, the instant criminal appeal is bereft of merits and liable to be dismissed looking into the commission of offence done by the appellant/ accused. 8. We have heard learned counsel appearing for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection. 9. The prosecutrix (PW-1) in Court statement dated 10.01.2020 has stated her age as 8 years. 8. We have heard learned counsel appearing for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection. 9. The prosecutrix (PW-1) in Court statement dated 10.01.2020 has stated her age as 8 years. Sub-Inspector Uma Gupta (PW-7) as an investigator has seized the Dakhil-Kharij register of primary school Lachhanpur vide Ex.P/12 with regard to the age of the prosecutrix. The said register was produced by Liligress Minz (PW-9), headmaster of the said school vide Ex.P/19 and the photocopy of the same attached on record is Ex.P/19-C. According to the statement of Lilligres Minz (PW-9), the above-said register is being maintained since the year-2005, which has a total of 278 pages, in its serial number-1807, the date of birth of the prosecutrix is mentioned as 14.04.2009, according to which the prosecutrix was enrolled on the school on 28.07.2017 in class-1 and on the basis of the said entry headmaster-Liligress Minj (PW-9) issued the admission certificate of the prosecutrix vide Ex.P/20, she states that the said entry was on her own handwriting. Liligress Minz (PW-9) headmaster in her cross-examination has accepted that the name of the father of the victim was mentioned as Late Baldev in the application filed by the police vide Ex.P/18 seeking the Dakhil-Kharij register, whereas the name of the father of the victim in Dakhil Kharij register was mentioned as Balbeer. Since the victim in her court statement has given the name of her father as Balbeer Singh and the same name is also mentioned in the school register, therefore, if Baldev has been wrongly written in the police Tahrir, then there is no doubt that it can arise in any way. The headmaster-Liligress Minz has stayed and remained un-rebutted in her statement. 10. According to the date of birth mentioned as 14.04.2009 in the Dakhil-Kharij Register Ex.P/19-C, the age of the prosecutrix on the date of the incident i.e. 13.12.2019 is found to be about 10 years 08 months which is less than 12 years. Thus, she is not only found to be a minor but also had not completed 12 years of age on the date of the incident. 11. The mother of the prosecutrix Pushpa Rajput (PW-2) has stated in her statement before the Court that she is illiterate and therefore cannot give the exact date of birth of the prosecutrix. Thus, she is not only found to be a minor but also had not completed 12 years of age on the date of the incident. 11. The mother of the prosecutrix Pushpa Rajput (PW-2) has stated in her statement before the Court that she is illiterate and therefore cannot give the exact date of birth of the prosecutrix. She also stated that the prosecutrix is of 8 years. In this way, when the prosecutrix was admitted in the school in class-I, then the credibility of the class-I admission register is established typically enrollment occurs at the age of 6 years. The prosecutrix has stated in her statement before the Court that she studies in class-II. In view of her statement, the entry of the alleged date of birth cannot be considered suspicious for the purpose of estimating her age, nor is the date surprising. There is no other fact or evidence to the contrary, therefore, on the basis of unrebutted statement of Lilligres Minz (PW-9), it is found that the prosecutrix was not only less than 18 years of age at the time of the incident but was also less than 12 years. 12. In the context of the incident, first of all, the statement of the prosecutrix (PW-1) is important. The prosecutrix has stated in her court statement that the appellant is her brother-in-law in relation who is the husband of her elder sister Nandbai and that sister lives in Janjgir. On the date of the incident, when her mother had gone to work, the appellant came to her house and said that today is the birthday of his son and asked to come with him, but she refused to go with him, which the appellant beat her and due to the fear she sat in his motorcycle. The appellant was driving the motorcycle and she was sitting behind. After some time, the appellant made her sit in front and started touching the victim. During the trial in the court, the prosecutrix touched her chest and indicated that he was touching her. Prosecutrix also stated that the appellant took her to Marghatti, took her off the motorcycle and remove her yellow slacks. After some time, the appellant made her sit in front and started touching the victim. During the trial in the court, the prosecutrix touched her chest and indicated that he was touching her. Prosecutrix also stated that the appellant took her to Marghatti, took her off the motorcycle and remove her yellow slacks. Then after making her lie down on the ground, pressing her mouth with his hand and trying to commit sexual intercourse, at that time the uncle and aunt came there, shouted to the appellant and called the police van. Police personnel took them to the police station where the police called the mother of the prosecutrix and sent her for a medical checkup. The prosecutrix has also stated that in the way her statement is being made in the court, it had happened once before also where there was no curtain. It appears from this that the prosecutrix is referring to the statement under Section 164 Cr.P.C. 13. In the cross-examination of the prosecutrix, it has come to the fact that before the court statement the policemen had gone to pick her up, then a day earlier i.e. on 09.01.2020, she had come up to Collectorate Chowk with her mother and brother, then the policemen told that the judge was on leave, then they had gone back. It is also evident from the perusal of the order dated 09.01.2020 of the original record of the trial court that the presiding officer was on leave on that date. In this way, the statement of the prosecutrix appears to be bona fide. The prosecutrix has also stated in her cross-examination that they were sitting in the police station for some time, after which the police dropped them home. She has denied the suggestion that the police may have been dictating to him what statement she was to make. The prosecutrix has herself stated that she was told by the aunt not to lie, to tell the truth, if you get the appellant released by lying then she will be trapped. The aunt (complainant) had said so, even if it is accepted as true, it is not of such a nature that it can be said that the prosecutrix was taught to implicate the appellant in a false case. 14. As per the prosecution case, the witnesses of the incident are Saroj Tiwari (PW-3) and her husband Vinod Tiwari (PW-4). The aunt (complainant) had said so, even if it is accepted as true, it is not of such a nature that it can be said that the prosecutrix was taught to implicate the appellant in a false case. 14. As per the prosecution case, the witnesses of the incident are Saroj Tiwari (PW-3) and her husband Vinod Tiwari (PW-4). Their court statement is to the effect that when they were going on a motorcycle, they saw that a person was doing some awful act by making the girl sit in front of the motorcycle and went back and forth once or twice from their motorcycle. Thereafter turned towards Muktidham, and then on being suspicious, they followed and saw that the appellant had taken off the slacks of the prosecutrix by parking the motorcycle and was sleeping on top of the prosecutrix in an objectionable position. When Saroj Tiwari (PW-3) shouted, the appellant started running, Vinod Tiwari (PW-4) caught hold of him, and the mobile phone of the appellant fell down. Saroj Tiwari (PW-3) herself went to the prosecutrix, put on the slacks, then took the prosecutrix to the road, tried to stop the people, and asked her son to call the police, after some time 2-3 people came and police van also came, then all of them were brought to the police station, where on the basis of her written complaint vide Ex.P-1 the First Information report vide Ex.P-2 was registered. On her statement, the map of the spot was prepared vide Ex.P-3. Later on, Patwari also prepared spot map vide Ex.P-4 and Panchnama vide Ex.P-5. 15. The statements of Saroj Tiwari (PW-3) and her husband Vinod Tiwari (PW-4) corroborate the police report (Ex.P-1) and their statements also corroborate the statement of the prosecutrix. Saroj Tiwari (PW-3) has admitted in her cross-examination that the appellant was assaulted by her husband and other people on the spot. She has denied the suggestion of the defence that the appellant was intoxicated at that time. In her cross-examination, no other such fact has come to the fore which contradicts his statement. 16. Vinod Tiwari (PW-4) has admitted that on seeing the symptoms of the appellant, he felt that he was intoxicated but denied the suggestion that he caught the appellant on the basis of mere suspicion that he was intoxicated. In her cross-examination, no other such fact has come to the fore which contradicts his statement. 16. Vinod Tiwari (PW-4) has admitted that on seeing the symptoms of the appellant, he felt that he was intoxicated but denied the suggestion that he caught the appellant on the basis of mere suspicion that he was intoxicated. Vinod Tiwari (PW-4) has also denied the suggestion of the defence that there was no wrongdoing by the appellant. Thus, Vinod Tiwari has also stayed in his cross-examination and his statement also corroborates the statements of the prosecutrix. 17. Pushpa Rajput (PW-2), the mother of the prosecutrix, has stated in her court statement that a day before the incident, the appellant had called up and said that he would take the prosecutrix for her child's birthday, but on the day of the incident, the appellant took away the prosecutrix without informing her. On the information of the police, when she reached the police station, the prosecutrix started crying seeing her, where the prosecutrix told in front of the woman officer that the appellant was touching her body and was taking out the slacks and was trying to commit sexual intercourse, then two people came and picked her up and brought to the police station. This witness has deposed in her cross-examination that a lady police constable was present when the prosecutrix was narrating the incident. She has also said that on the day of recording the statement in the court, the policemen brought them to the court and also dropped them back home. Investigating Officer-Vinod Mandavi (PW-10) has also accepted the fact that the policemen had brought and dropped the prosecutrix from her house to the court. Considering the minor status of the prosecutrix and the case, there does not appear to be any exaggeration in the statement of the mother of the prosecutrix, nor can the argument of the defence that the police influenced her to be accepted as the matter concerned to a minor 10-yearold girl who met with the sexual offences. In the said situation, it is also the responsibility of the police to provide security to the witness, so if the police bring the witness from home to court and take them from court to home, it cannot be termed wrong. 18. Dr. In the said situation, it is also the responsibility of the police to provide security to the witness, so if the police bring the witness from home to court and take them from court to home, it cannot be termed wrong. 18. Dr. N.K. Dhurve (PW-6) on 13.12.2019, after examining the appellant has given its report vide Ex.P-7, according to which the appellant was drunk but not intoxicated. The doctor after examination has opined that the appellant was capable of sexual intercourse. He has also stated that the appellant had contusion with redness on the eyebrows of the right eye and bruises with redness on the right and left cheeks. In this regard, the doctor has also said in his cross-examination that the above wounds can come from fighting. Looking at the course of events, the manner in which the complainant's husband Vinod Tiwari (PW-4) and other passers-by have said about the assault on the appellant, the injuries are reflected in the same situation which corroborates the incident as per the prosecution case. 19. Sub-Inspector-Uma Gupta (PW-7) seized the appellant's underwear vide Ex.P-10, query report is Ex.P-8 and then sent it to the Regional Forensic Science Laboratory, Bilaspur as per the medical advice, regarding which the Superintendent of Police's memorandum is Ex.P14, the receipt is Ex.P-15 and Laboratory Test Report is Ex.P-16. Head Constable Virendra Bhanu (PW-8) being the Malkhana Moharrir of the police station states about the entry in the Malkhana Register at serial number-132 on 13.12.2019 and has asked to send for chemical test and as per the chemical test report Ex.P-16 and the documents attached thereto, semen stains have been found in the underwear of the appellant. 20. Now, if we look at the medical evidence of the prosecutrix, neither her underwear has been seized nor has it been sent for medical examination or for chemical examination. 21. Dr. Mamta Jagat (PW-5) has stated to do the medical examination of the prosecutrix on 13.12.2019 at 07:30 pm. She corroborates the test report of the prosecutrix (Ex.P-6) has stated that the prosecutrix was in full consciousness and was talking. There were no injury marks on the external parts of the body of the prosecutrix. Her hymen was intact. There was a 4 x 2 cm area of redness on her perineum region. There were no injury marks on the internal organs of the prosecutrix. There were no injury marks on the external parts of the body of the prosecutrix. Her hymen was intact. There was a 4 x 2 cm area of redness on her perineum region. There were no injury marks on the internal organs of the prosecutrix. The doctor has opined that there could be sexual assault with the prosecutrix. In cross-examination, she stated that the redness found on the perineum region could be due to scratching, but she also stated on her own that on examining the victim, she did not find any such infection. Thus, Dr. Mamta Jagat (PW-5) has not given any clear opinion regarding penetration but has spoken about sexual assault. 22. According to Section 375 of the Indian Penal Code, partial or complete penetration is necessary for rape. In the matter before us, there is no evidence of penetration in medical evidence. The prosecutrix herself (PW-1) has stated that the appellant was trying to insert his private part in her private part, that is, it has not been said that there was partial penetration. Similarly, Saroj Tiwari, as a witness on the spot (PW-3) has stated that the appellant was sleeping in an objectionable position on top of the prosecutrix who was not wearing slacks, that is, she too has not said anything about penetration but about sexual assault is definitely visible. The redness has also been found in the perineum of the prosecutrix which corroborates this fact. 23. It is the contention of the counsel for the appellant that the appellant had not committed any sexual assault with the prosecutrix when the prosecutrix was sitting in the tank part of the motorcycle from which redness was found in her perineum due to rubbing or heat of the tank. The statement of the prosecution witnesses is not supported by the medical evidence and hence should be given the benefit of doubt. The counsel for the appellant referred to the judgment Jayantibhai Mohanbhai Patel (PADARIA), AIR 2018 SC (Supp.) 1259, in support of his contention. In the above-exemplified case, no injury or mark was found on the private part or chest of the prosecutrix. In the above-cited case where the prosecutrix being a married woman was the mother of three children. Thus, as the facts of the said case are different from the case before us, the full benefit of the same does not go to the defence. In the above-cited case where the prosecutrix being a married woman was the mother of three children. Thus, as the facts of the said case are different from the case before us, the full benefit of the same does not go to the defence. 24. In the case of Prahlad vs. State of Rajasthan, AIR 2018 SC (Supp.) 2586, the second case cited by the counsel for the appellant, the accused was acquitted of the crime of rape on the basis of lack of medical evidence. In the above-cited case, the private part of the prosecutrix was found to be healthy and no injury was found in it. In the case before us, redness has been found in the perineum. Due to the difference of facts in the abovecited case, the benefit of the cited case can also not be given to the appellant completely. 25. Looking to the aforesaid discussion, it is found from the entire evidence that the prosecution has failed to establish that the appellant had committed the offence of rape or penetrative sexual assault by having intercourse with the 10-year-old prosecutrix, but it has been established by the prosecution evidence that the appellant molested his matrimonial relative and 10-yearold minor sister-in-law by making her sit in front of the motorcycle and then taking her to an isolated place, taking off her slacks and sleeping on it, molested her. This act of the appellant comes under Section-354-B of IPC as the appellant is the brother-in-law of the victim who was less than 12 years. Thus the appellant has committed aggravated sexual assault on her which is punishable under Sections 9 (m), 9 (n) read with Section 10 of the POCSO Act. 26. On the basis of analysis of the above evidence, the unrebutted evidence of the prosecutrix (PW-1), her mother Pushpa Rajput (PW-2), the spot witnesses Saroj Tiwari (PW-3), Vinod Tiwari (PW-4) and the medical report Ex.P-6, it has been proved that the appellant being brother-in-law took away the prosecutrix aged about 12 years, sat on his lap to the victim while riding a motorcycle; By taking her to an isolated place, taking off her slacks and molested her, the appellant not only committed sexual assault but aggravated sexual assault which is punishable under Section 354-B of IPC and Sections 9(M), 9(N) read with Section 10 of POCSO Act. The offence of rape and the aggravated penetrative offence have not been proved as the fact of penetration has not been proved. 27. Having heard the counsel for the parties and scrutinized the records we are of the opinion that Section 376 (a), (b) and Section 6 of the POCSO Act are liable to be set aside as not proved and are converted under Sections 354-B of the Indian Penal Code and Section 10 of the POCSO Act, according to Section-42 of the POCSO Act, the intention of justice will be fulfilled by the sentence in Section-10 of the POCSO Act, the more serious of the above two offence. Therefore, setting aside the sentence awarded by the trial court, the appellant is hereby sentenced to undergo five years of rigorous imprisonment and a fine of Rs.1000/- (one thousand rupees) for the offence under Section 10 of the POCSO Act, in default of payment of the fine amount, the appellant will be liable to undergo rigorous imprisonment for a period of 03 months. In this case, the appellant is reported to be in custody since 13.12.2019, which shall be adjusted in his sentence period. 28. In the result, the appeal stands partly allowed to the extent as indicated above.