JUDGMENT : G. A. Sanap, J. 1. Heard finally with the consent of learned Advocates for the parties. 2. In this appeal, the challenge is to the judgment and order, dated 25.10.2021, passed by the learned Additional Sessions Judge, Akola, whereby the learned Judge, held the appellant/accused guilty for the offence punishable under Section 354(B) of the Indian Penal Code (for short ‘the IPC’) and for the offence under Section 7 punishable under Section 8 and under Section 9 punishable under Section 10 of the Protection of Children From Sexual Offences Act, 2012 (for short ‘the POCSO Act’) and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- and in default to suffer simple imprisonment for one month. 3. Background facts: The victim involved, in this crime, is an unfortunate girl, who was three years old at the time of the incident. The wheels of the prosecution were put into motion on the report of her grandmother to the Murtizapur police station. It is stated that the incident occurred on 07.02.2019 at about 4:30 p.m. The informant is the grandmother of the victim. She, alongwith the victim and her grandson, went to the neighbour’s house. The victim and grandson were playing in an autorickshaw in front of her house. After some time, her grandson came to her and sat with her. She inquired about the victim girl. Her grandson told her that the victim had returned to the house. The informant went to the house and found that the victim was not there. Therefore, she went to search the victim. On the way, she met her brother-in-law, who at the time of the incident was nine years old and on inquiry, he told her that one boy from the locality took the victim with him. The informant took search of the victim. She noticed the victim coming out of the house of the said boy. The victim was crying. She consoled the victim and inquired with her about the cause of her annoyance. The victim narrated the incident to her. The informant went to the house of the accused. The informant saw that the accused was lying naked in his house. The name of the said boy, according to the informant, is Sameer Shah S/o. Salim Shah. The people gathered on the spot when the informant raised the shouts. The victim narrated the incident to her. The informant went to the house of the accused. The informant saw that the accused was lying naked in his house. The name of the said boy, according to the informant, is Sameer Shah S/o. Salim Shah. The people gathered on the spot when the informant raised the shouts. The people caught hold of the accused and took him to the police station. The victim, thereafter, narrated the incident to her in detail. The informant went to the police station and lodged the report. On the same day, at about 9:35 p.m., on the basis of her report, the crime bearing No. 36 of 2019 was registered against the accused for the above offences. 4. PW-8- Sangeeta Gawade conducted the investigation into the crime. She recorded the statements of the witnesses. She drew the panchanama of the spot. During the course of the investigation, the clothes on the person of the victim were seized. The accused was arrested. The coconut oil bottle was seized from the spot. The victim was sent for medical examination. On completion of the investigation, she filed a chargesheet against the accused. 5. Learned Additional Sessions Judge framed the charge against the accused. The accused pleaded not guilty and claimed to be tried. His defence is of a total denial. In order to bring home guilt against the accused, the prosecution examined eight witnesses. Learned Additional Sessions Judge on consideration of the evidence held the accused guilty and sentenced him, as above. The appellant is before this Court against his conviction and sentence. 6. I have heard the learned Advocate for the appellant and learned APP for the State. Perused the record and proceedings. 7. Learned Advocate for the appellant submitted that except the evidence of the interested witnesses, there is no other independent evidence to prove the charge against the accused. Learned Advocate took me through the record and pointed out that neither the statement of the victim girl was recorded at the time of the investigation nor the victim girl has been examined as a witness. Learned Advocate submitted that the evidence of PW-1, the medical officer and the report of the medical examination do not corroborate the version of the informant. The medical evidence does not lend assurance to the testimony of the informant. Learned Advocate submitted that the evidence of PW-1, the medical officer and the report of the medical examination do not corroborate the version of the informant. The medical evidence does not lend assurance to the testimony of the informant. Learned Advocate submitted that the oral evidence of PW-2, 3 and 5 is not consistent. Learned Advocate submitted that PW-3 and 5 have tried to exaggerate the account of the incident just to support the testimony of PW-2. Learned Advocate submitted that the evidence of PW-2 informant cannot be believed because, on material aspects, there are inconsistencies in her evidence. Learned Advocate further submitted that the CA report is of no help to the case of the prosecution because the prosecution has failed to adduce cogent and concrete evidence to rule out the possibility of tampering or manipulation of the samples. Learned Advocate submitted that the learned Additional Sessions Judge has failed to consider all these material inconsistencies and lacunae in the case of prosecution. In the submission of the learned Advocate for the appellant, the conviction which has been based on the evidence of interested witnesses cannot be sustained. Learned Advocate submitted that the prosecution has miserably failed to prove the charge against the accused. In his submission, the accused deserves to be acquitted. 8. Learned APP submitted that there is no material on record to believe the defence of the accused. In the submission of the learned APP, the accused, on the basis of the material on record, is not able to probabalise his defence of false implication. Learned APP took me through the evidence of the material witnesses and submitted that no suggestions have been put to these witnesses about the enmity between the family of the accused and the family of the informant for one reason or another. Learned APP submitted that this defence was rightly rejected by the learned Judge. Learned APP further submitted that in ordinary circumstances, the informant had no reason to involve her granddaughter in such a serious crime. Learned APP submitted that considering the stigmatic consequences flowing from such a crime, there is always reluctance on the part of the family members of the girl to report such a crime to the police in the first instance. Learned APP submitted that the evidence of the grandmother of the victim is sufficient to accept the case of the prosecution. Learned APP submitted that considering the stigmatic consequences flowing from such a crime, there is always reluctance on the part of the family members of the girl to report such a crime to the police in the first instance. Learned APP submitted that the evidence of the grandmother of the victim is sufficient to accept the case of the prosecution. Learned APP took me through her evidence and pointed out that when the incident was narrated to her by the victim, she went into the house of the accused and found that he was lying naked in the house. Learned APP submitted that there is no delay in lodging the report. It is also pointed out that the victim was immediately referred for medical examination and the doctor, on examination, found that there was redness over the medial aspect of both labia majora and labia minora. The doctor found minimal redness outside the hymen. Learned APP submitted that the evidence has been properly appreciated by the learned Judge. In short, it is submitted that the well reasoned judgment and order does not warrant interference. 9. In this case, the victim, on the date of the incident, was three years old. The victim was not examined. Similarly, her statement was not recorded either by the police or through the Magistrate under Section 164 of the Code of Criminal Procedure. The investigation officer has stated in her evidence that after the registration of a crime, she made an inquiry with the victim but she was unable to narrate the incident to her. The CA report at Exh. 26 shows that on analysis of the clothes of the victim and the vulval swab, vegetable oil was detected. It is the case of the prosecution that the accused carried the victim into his house and applied coconut oil over her vagina. The CA report has not been seriously challenged by the accused. The doctor has stated that save and except the redness over the medial aspect of both labia major and labia minora, no other injury was noticed. The doctor found minimal redness outside the hymen. It needs to be stated that the charge against the accused is not of penetrative sexual assault. The charge against the accused is of molesting the modesty of the victim and aggravated penetrative sexual assault, as provided under Section 9 of the POCSO Act. The doctor found minimal redness outside the hymen. It needs to be stated that the charge against the accused is not of penetrative sexual assault. The charge against the accused is of molesting the modesty of the victim and aggravated penetrative sexual assault, as provided under Section 9 of the POCSO Act. The victim girl was three years old at the time of the incident and therefore, could not testify before the Court. There is nothing wrong in this. A child of 3-4 years is hardly able to speak or express any act done with him or her. However, such a child can communicate such incident to her close persons. The question is whether the evidence of the other witnesses, coupled with the medical evidence, is sufficient to prove the charge against the accused or not. In order to find out the answer to this question, it is necessary to minutely scrutinise the evidence adduced by the prosecution. 10. . PW-2 is the informant and grandmother of the victim. In her examination-in-chief, consistent with the facts stated in her report, she has placed on record the vivid account of the incident. She has narrated that her grandchildren were playing in the auto with the victim girl. The said auto, which was belonging to her, was parked near her house. She has stated that after some time her grandson Akram came to her and sat on her lap. She asked him about the victim. He told her that the victim was playing in the autorickshaw. She went to the house. On the way, she could not see the victim in the auto. She has stated that when she went to home, she did not find the victim at home. She took the search of her granddaughter. While taking a search, on the way, Ayan met her. On inquiry with him, he told that the victim was carried by the accused into his house. They took a search of the victim. While taking search they saw that the victim came out of the house of the accused and she was crying. She has stated that, on inquiry, the victim told her that the accused took her into his house. He removed her salwar and applied oil to her private part. After this, the informant went into the house of the accused. She saw that the accused was completely naked. She has stated that, on inquiry, the victim told her that the accused took her into his house. He removed her salwar and applied oil to her private part. After this, the informant went into the house of the accused. She saw that the accused was completely naked. She raised the shout. The accused then put on his trouser and started running. She has stated that the people caught hold of him and took him to the police station. She has stated that thereafter, they went to the police station and lodged the report. 11. PW-2 has been cross examined. Perusal of her cross examination would show that she has not given any admission of any significance to cause even the slightest dent to the core of her evidence as to the occurrence of the incident and the involvement of the accused in the incident. While appreciating her evidence, it is necessary to keep in mind that she had no reason to falsely implicate the accused in such a serious crime. The defence of enmity has not been probablised. There is no specific suggestion as to the enmity between the two families for one reason or another. It is not out of place to mention that the informant, without involving her granddaughter, could have concocted a story to falsely implicate the accused. If she wanted to falsely implicate the accused, then she would have created an imaginary story of molesting her modesty at the hands of the accused. It is necessary to mention that a crime of this nature, if brought into the public domain, could result in cascading effects and consequences. The parents or relatives of the girl, involved in such a crime, are always reluctant to report the matter to the police, considering the stigmatic consequences attached to such a crime. It is to be noted that by reporting such a crime to the police not only the future and career of the girl but also the reputation of the family is put to stake. The attempt in such a crime by the family member is to sweep such a matter under the carpet. The reporting of a crime definitely jeopardise the future of the victim girl and her reputation. In my view, therefore, this fact is required to be born in mind while appreciating the evidence of the relative of the victim. 12. The attempt in such a crime by the family member is to sweep such a matter under the carpet. The reporting of a crime definitely jeopardise the future of the victim girl and her reputation. In my view, therefore, this fact is required to be born in mind while appreciating the evidence of the relative of the victim. 12. In this case, PW-2 is the grandmother of the victim. The grandmother had no reason to involve her granddaughter in such a serious crime. Her evidence, on minute scrutiny, is found to be of stellar quality. Her evidence has not been shaken despite gruelling and searching cross examination. No admission of any significance has been elicited in her cross- examination to doubt her credibility and truthfulness. The conduct of the informant is consistent with the conduct of a person of ordinary prudence placed in a similar situation. She immediately took the search of her granddaughter. 13. PW-3 is her son and the father of the victim. He also joined PW-2 to search the victim. PW-4 is a child witness. The report was lodged without wasting any time to the police. The panchanama of the spot of the incident was drawn on the next date i.e. on 08.02.2019. The clothes of the victim and other articles were seized. It is the case of the prosecution that the accused had applied coconut oil on the private part of the victim. The CA report of the analysis of the samples detected coconut oil on 4-5 articles. The report, therefore, corroborates the testimony of PW-2 and overall case of the prosecution. The prompt lodging of the report reflects upon the conduct of the informant and over all case of the prosecution. Considering the seriousness of the crime, without any deliberation, the report was lodged. The prompt lodging of the report, in this case, therefore, has ruled out the possibility of embellishment and concoction of an imaginary story after due deliberation. The evidence of PW-2, if analyzed in the backdrop of all these facts, would show that there is no reason to discard and disbelieve the said evidence. 14. The next important witness is PW-4. PW-4 is a child witness. He has deposed that, he alongwith the victim and other children, were playing in an autorickshaw. He has stated that the boy, whom he identified before the Court, came to the spot. 14. The next important witness is PW-4. PW-4 is a child witness. He has deposed that, he alongwith the victim and other children, were playing in an autorickshaw. He has stated that the boy, whom he identified before the Court, came to the spot. He asked the victim her name and her education. He has stated that he carried the victim on the pretext of teaching her. He has stated that after some time the informant came and inquired with him about the victim. He narrated the facts known to him about the victim. He has stated that he told the informant that the accused had carried the victim with him. He has stated that thereafter, they took search of the victim. He has stated that while taking a search they found that the people had gathered in front of the house of the accused. As far as this child witness is concerned, he was also put to searching cross- examination. There is hardly any material in his cross- examination to doubt his presence on the spot. Perusal of his cross-examination and some of the answers given by him would be sufficient to conclude that he was not tutored witness brought before the Court to extend support to the case of the prosecution. His basic evidence with regard to his presence on the spot with the victim, the accused having carried the victim to his house in his presence and the subsequent search of the victim carried out by them has not been shaken. 15. PW-3 is the father of the victim girl. He has stated that, after coming back home from work, he came to know about the incident. The victim was missing. They took the search. He saw that the people had gathered in front of the house of the accused. His mother PW-2 was abusing the accused. On inquiry, his mother told him about the incident. He saw that there was coconut oil on the salwar of his daughter. He has stated that people in the locality caught the accused and took him to the police station. 16. PW-5 is the friend of PW-3. He has stated that on the date of the incident, PW-3 met him at the square. He told him that his daughter is missing. He has stated that people in the locality caught the accused and took him to the police station. 16. PW-5 is the friend of PW-3. He has stated that on the date of the incident, PW-3 met him at the square. He told him that his daughter is missing. They went to search his daughter and on the way, they found that the grandmother of the victim had brought the victim from the house of the accused. He has identified the accused. He has stated that he went inside the house of the accused and found that he was nude. He has stated that after this, they went to the police station and reported the crime. 17. PW-3 and PW-5 are not the eyewitnesses to the incident, which was witnessed by PW-2. They came on the scene after some time. However, whatever they have stated about the part of the incident cannot be disbelieved. It is apparent on the face of the record that they accompanied the informant to the police station. The evidence of PW-2, 3, 4 and 5 as to the occurrence of the incident and the involvement of the accused, is credible and as such, deserves acceptance. No dent has been caused to their evidence, despite searching cross examination. I do not see any reason to discard or disbelieve their evidence. 18. The medical evidence and the CA report are corroborative evidence relied upon by the prosecution. The victim was carried to the hospital after lodging the report. She was examined at 1:00 a.m. on 08.02.2019. On examination, the medical officer (PW-1) noticed redness over the medial aspect of both labia majora and labia minora. There was a minimal redness outside the hymen. The medical officer has stated that she did not notice any injury. Her report would show that before the examination of the victim, the history of assault was narrated to her by the grandmother of the victim. The history of assault was recorded by her in her report. Perusal of the history of assault recorded by PW-1 in her report would show that it is consistent with the facts stated in the report lodged with the police by the informant. In her cross- examination, she has admitted that she did not notice any coconut oil on the private part of the victim. Perusal of the history of assault recorded by PW-1 in her report would show that it is consistent with the facts stated in the report lodged with the police by the informant. In her cross- examination, she has admitted that she did not notice any coconut oil on the private part of the victim. The CA report clearly shows that the analysis of the vulval swab of the victim detected coconut oil. The doctor with the open eyes might not have observed the coconut oil. The doctor in order to rule out any possibility on this count took the samples. The analysis of the samples corroborate the case of the prosecution on this aspect. The medical evidence fully corroborates the evidence of the witnesses. 19. In this case, on the basis of the evidence, the prosecution has proved the foundational facts to trigger the provisions of Section 29 of the POCSO Act. The presumption provided under Section 29 of the POCSO Act is not an absolute presumption. The presumption is triggered if there is sufficient evidence to prove the foundational facts vis-a-vis the charge. If the presumption gets triggered, then the accused has to rebut the said presumption. In this case, the presumption was triggered. The accused has not adduced any evidence to rebut the said presumption. Learned Additional Sessions Judge, in my view, was right in concluding that in the backdrop of the proof of the foundational facts the presumption under Section 29 of the POCSO Act was triggered in this case. 20. As a result of above discussion, I conclude that the evidence on record is sufficient to prove the charge against the accused. Learned Judge has recorded cogent reasons in support of his findings. In the teeth of the evidence on record, no interference is warranted in the finding of the guilt of the accused recorded by the learned Additional Sessions Judge. 21. Learned Advocate for the appellant submitted that the accused, on the date of the incident, was 18 years old. He was doing work for his livelihood and helping his family. Learned Advocate submitted that a prayer for leniency was made before the learned Judge. It is pointed out that the learned Judge has not properly appreciated the same. It is pointed out that the appellant has been in jail since the date of his arrest. He was doing work for his livelihood and helping his family. Learned Advocate submitted that a prayer for leniency was made before the learned Judge. It is pointed out that the learned Judge has not properly appreciated the same. It is pointed out that the appellant has been in jail since the date of his arrest. It is submitted that as on date, he is 23 years old. He has undergone imprisonment for five years and five months. In the submission of the learned Advocate the sentence undergone by him, in the facts and circumstances, would be sufficient punishment. It is pointed out that the minimum sentence provided under Section 9 of the POCSO Act is five years and it may extend up to seven years. It is submitted that lenient view may be taken and sentence already undergone by him be awarded. Learned APP submitted that, considering the fact that the victim girl was 3 years old on the date of the crime and the brutality displayed by the accused, he does not deserve leniency. 22. I have given a thoughtful consideration to the rival submissions. The accused has undergone imprisonment for five years and five months. The minimum sentence provided for the offence under Section 9 of the POCSO Act is five years. It may extend up to seven years. Learned Judge has awarded the maximum sentence prescribed under Section 9. The accused, on the date of the offence, was doing the work for his livelihood. He is unmarried. On the date of the incident, he was 18 years old. The punishment undergone by him is five years and five months. The fine imposed by the trial Court is Rs.10,000/- and in default, he is directed to undergo simple imprisonment for one month. In my view, considering the facts and circumstances and particularly the age of the accused, it would be just and proper to sentence him to undergo the imprisonment which he has already undergone. As far as the fine and default sentence is concerned, no interference is warranted. Accordingly, the criminal appeal is party allowed. 23. In my view, considering the facts and circumstances and particularly the age of the accused, it would be just and proper to sentence him to undergo the imprisonment which he has already undergone. As far as the fine and default sentence is concerned, no interference is warranted. Accordingly, the criminal appeal is party allowed. 23. The conviction of the accused vide judgment and order dated 25.10.2021 for the offence punishable under Section 354(B) of the Indian Penal Code and for the offence under Section 7 punishable under Section 8 and under Section 9 punishable under Section 10 of the Protection of Children From Sexual Offices Act, 2012 is maintained. However, the substantive sentence is modified. 24. The appellant- Sameer Shah Salim Shah is directed to undergo imprisonment which he has already undergone i.e. five years and five months. 25. The sentence of fine is maintained. 26. The criminal appeal stands disposed of, accordingly. Pending applications, if any, also stand disposed of.