JUDGMENT : 1. In this appeal, the challenge is to the judgment and order, dated 16.06.2021, passed by the learned Additional Sessions Judge, Chandrapur, whereby the learned Sessions Judge convicted the accused/appellant for the offences punishable under Section 4 of the Protection of Children From Sexual Offences Act, 2012 (for short ‘the POCSO Act’) and Section 377 of the Indian Penal Code (for short ‘the IPC’) and sentenced the accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-and in default of payment of the fine to suffer simple imprisonment for one year for the offence punishable under Section 4 of the POCSO Act. No separate sentence has been awarded for the offence punishable under Section 377 of the IPC. 2. Background facts: The victim boy, aged about 16 years, is the informant in this case. The crime was registered, on the basis of his report, at city police station Chandrapur. The prosecution case, as can be seen from the report and other material on record, is that on 02.05.2019, the informant and his brother (PW-2) went to sleep in the gallery. The father of the informant was residing in the tenanted premises owned by the father of the accused on the first floor. The house of the accused is adjacent to the house of the informant. The wife of the accused had gone to her parents’ house. In the night, when the informant and his brother went to sleep, after about one and half hour, the accused came there and asked them as to why they are sleeping outside the house. The accused told them that there was a cooler facility in his house and therefore, they should come and sleep inside the house. The informant, along with his brother, went inside the house of the accused. They slept on one bed. After some time, the informant woke up after realizing that somebody was pushing him forcefully. He saw that he was lying in a prone condition on the mattress of the floor and his pant was removed up to his knee. He found the accused in a naked condition. It is stated that the informant saw that the accused slept on his body and was giving forceful jerks. He pushed the accused and woke up his brother. They ran outside the house of the accused and went to their house. He found the accused in a naked condition. It is stated that the informant saw that the accused slept on his body and was giving forceful jerks. He pushed the accused and woke up his brother. They ran outside the house of the accused and went to their house. They narrated the entire incident to their father. The father of the informant went to the house of the accused and questioned him about the wrongful act done by him. The accused raised a quarrel with him. Their neighbours came to the spot. The accused tried to run away from the spot. The neighbours caught hold the accused and assaulted him. The accused sustained injuries to his head. The informant, along with his father, went to the police station in the night and lodged the report. 3. On the basis of his report, the crime bearing No.369 of 2019 came to be registered against the accused. The investigation was carried out by PW-5. The investigating officer sent the informant for a medical examination. On the next day, she arrested the accused. She referred the accused for a medical examination. The clothes as well as blood samples of the informant and the accused were collected. The investigation revealed the involvement of the accused in the crime and therefore, the investigating officer filed the charge- sheet against the accused in the Court of law. 4. Learned Additional Sessions Judge framed the charge against the accused. The accused pleaded not guilty. The defence of the accused is of false implication on account of the demand of the arrears of rent by the accused from the father of the informant. The prosecution, in order to prove the charge against the accused, examined six witnesses. Learned Judge, on consideration of the evidence, convicted and sentenced the accused, as above. The appellant has come before this Court in appeal against the said judgment and order. 5. I have heard learned appointed Advocate Mr Rajnish Vyas for the appellant and learned APP Ms Mukta Kavimandan for the State. Perused the record and proceedings. 6. Learned Advocate for the appellant submitted that the prosecution has miserably failed to prove the birth date of the informant. The birth date of the informant was neither stated in the report lodged by the informant nor in their subsequent statements recorded during the course of the investigation. Perused the record and proceedings. 6. Learned Advocate for the appellant submitted that the prosecution has miserably failed to prove the birth date of the informant. The birth date of the informant was neither stated in the report lodged by the informant nor in their subsequent statements recorded during the course of the investigation. The father of the informant has not been examined as a witness to prove the birth date of the informant. Learned Advocate further submit that the evidence of PW-6, who has been examined to prove the birth certificate and the official record, would not be sufficient to prove the birth date of the informant beyond doubt. Learned Advocate took me through the evidence of PW-6 and the relevant documents produced by him to buttress his submission. In short, the learned Advocate submitted that on the date of the alleged crime, the informant was not a child as defined under the POCSO Act. 7. Learned APP submitted that the failure to mention the date, in the report as well as in the statements recorded by the police, by the informant and his brother would not be fatal to the case of the prosecution. Learned APP submitted that the investigating officer had collected the birth certificate of the informant during the course of the investigation and to prove the said birth certificate, PW-6 was summoned with the original official record, where the birth date of the informant had been recorded. In short, the learned APP submitted that the evidence adduced by the prosecution is sufficient to prove that on the date of the crime, the informant was below 16 years of age and as such, a child as defined under Section 2(1)(d) of the POCSO Act. 8. Learned Additional Sessions Judge has appreciated the oral and documentary evidence adduced by the prosecution to prove the age of the informant. Learned Judge has recorded the findings that the prosecution, on the basis of the said evidence, proved that on the date of the incident the informant was below 18 years of age. Before appreciating the documentary evidence and the evidence of PW-6, it would be appropriate, at this stage, to note that in the report as well as in the FIR the birth date of the informant was not stated. The informant stated his birth date for the first time before the Court. Before appreciating the documentary evidence and the evidence of PW-6, it would be appropriate, at this stage, to note that in the report as well as in the FIR the birth date of the informant was not stated. The informant stated his birth date for the first time before the Court. Similarly, the brother of the informant, PW-2 has not stated the birth date of the informant. In his cross-examination, PW-6 has categorically admitted that on the certificate at Exh. 62 there is no signature or thumb impression of the person who gave the information regarding birth date of the informant. The father of the informant has not been examined. The father of the informant would be the proper person to depose about the birth date of the informant. It is the case of the prosecution that initially the birth date was recorded on the basis of the hospital record in the Municipal Corporation, Chandrapur. PW-6 Prakash has been examined by the prosecution to prove the documents with regard to the birth date of the informant. 9. It would be appropriate to consider the evidence of PW-6. He has stated that he is working as the head of the Birth and Death Department of the Municipal Corporation, Chandrapur. He has stated that, as per the requisition of the investigating officer dated 24.06.2019, the birth certificate of Sufiyan Asif Sheikh was provided. Exh. 57 is the requisition letter received from the Police Station. He has stated that he accordingly issued the certificate with his covering letter to the investigating officer. The covering letter is at Exh. 58. At the time of his evidence, he has produced the original record. He has stated that the birth date of the informant is recorded at entry No. 9268 of the register and his birth date is 22.08.2006. He has further stated that the name of the informant is recorded as Sufiyan Khan and his father’s name is recorded as Asif Khan Abdul Khan and his mother’s name is recorded as Firoza Parveen. The said entry is at Exh. 62. He has stated that at the time of the investigation of the crime, the father of the informant realized that his surname was recorded as a ‘Khan’ and not as a ‘Sheikh’, which is his real surname. He, therefore, applied for correction. The correction was made and a fresh corrected certificate was issued. The said entry is at Exh. 62. He has stated that at the time of the investigation of the crime, the father of the informant realized that his surname was recorded as a ‘Khan’ and not as a ‘Sheikh’, which is his real surname. He, therefore, applied for correction. The correction was made and a fresh corrected certificate was issued. It is at Exh. 63. 10. The defence has seriously assailed this evidence. It is contended that this evidence is not sufficient to conclusively prove the birth date of the informant. PW-6 has admitted certain facts in his cross-examination. The facts admitted by him are very vital. He has stated that the birth register is maintained in two parts. One part remains with the Municipal Corporation and another part remains with the hospital. He has stated that there is no signature or thumb impression of the person who gave the information at Exh. 62. Similarly, there is no signature of the head of the department on this document. He has stated that the corrected certificate was issued without making corrections/amendment in the original record. He has categorically stated that the certificate Exh. 65 was issued without making corrections in original record. He has categorically stated that such corrections are made only after receipt of the order from the Court of Judicial Magistrate First Class. The order has not been placed on record. Exh. 63 appears to be an application made by the father of the informant to the Municipal Corporation, Chandrapur, on 14.05.2019. There is no seal of the Magistrate on this document. Similarly, there is no order on this application. Exh. 64/1 is the affidavit submitted before the Executive Magistrate. There is no stamp or signature of the Executive Magistrate on this document. The affidavit at Exh. 64/2 also does not bear the signature and stamp. Exh. 65 is the birth certificate after effecting the correction pursuant to the application dated 14.05.2019. Exh. 66 is the original certificate without correction. The father of the informant was the proper witness to depose about all these documents. In the original record of the Municipal Corporation, the surname of the informant was recorded as ‘Khan’ and not ‘Sheikh’. The corrected certificate has been issued without making a correction in the original record. Exh. 66 is the original certificate without correction. The father of the informant was the proper witness to depose about all these documents. In the original record of the Municipal Corporation, the surname of the informant was recorded as ‘Khan’ and not ‘Sheikh’. The corrected certificate has been issued without making a correction in the original record. It is therefore apparent that the corrected certificate has been issued without making the correction in the original entry and certifying the correction by the competent officer. In my view, therefore, the learned Judge was required to take all these facts and evidence into consideration. Learned Judge has failed to properly appreciate this issue. 11. As stated above, neither the informant nor his brother stated the birth date at the time of lodging the report. It was also not stated in the subsequent statements recorded by the police. The statements of the informant and his brother were recorded by the Magistrate under Section 164 of the Code of Criminal Procedure. These statements are part of the record. Neither the informant nor the brother of the informant stated the birth date of the informant while recording their statements by the Magistrate. Learned Judge, on the basis of the statements of the informant that he was studying in 7th standard, came to the conclusion that at the time of the incident, the informant was below 18 years of age. In my view, the evidence on record to prove the birth date of the informant is not sufficient. The police did not produce the school record. Similarly, the prosecution did not examine any witness from his school. Therefore, his statement that he was studying in 7th standard also appears to be without any corroborative material. In the facts and circumstances, I conclude that the evidence adduced by the prosecution is not sufficient to prove the exact birth date of the informant. The prosecution has failed to establish that the informant, on the date of the incident, was below 18 years of age. The informant, therefore, was not a child as defined under Section 2(1)(d) of the POCSO Act. 12. Learned Advocate for the appellant submitted that the evidence of the informant (PW-1) and his brother (PW-2) does not inspire confidence. The incident narrated by them is unbelievable. The informant, therefore, was not a child as defined under Section 2(1)(d) of the POCSO Act. 12. Learned Advocate for the appellant submitted that the evidence of the informant (PW-1) and his brother (PW-2) does not inspire confidence. The incident narrated by them is unbelievable. The admissions given by them, in the cross- examination, suggest that at the time of the report as well as at the time of the evidence, they were tutored. PW-1 in his evidence is silent about penetration. Learned Advocate submitted that the evidence of PW-1 and 2 is not sufficient to prove the charge under Section 377 of the IPC against the accused/appellant. As far as the evidence of the medical officer is concerned, the learned Advocate submitted that the doctor has not mentioned the age of the injury. Similarly, the doctor has not given a candid opinion of the unnatural sexual assault on the informant. Learned Advocate pointed out that the doctor has recorded the history of assault as stated by the police in the report. Learned Advocate submitted that if the incident, as stated, had occurred, then the informant would have sustained injuries to other parts of his body. On the basis of the anal tear at 12 o’clock position it was not possible for the medical officer to opine that the informant was subjected to unnatural sexual assault. Learned Advocate submitted that the time of the registration of the crime and the time of the medical examination of the informant creates doubt about the correct time of registration of the FIR. It is submitted that there are material inconsistencies, on this count, in the evidence of the medical officer and the investigating officer. It is submitted that the prosecution has miserably failed to prove the guilt of the accused. There is no independent witness. The interested evidence of the informant PW-1 and his brother PW-2 does not inspire confidence. The accused was examined by the doctor. It is pointed out that the examination report of the accused has not been proved. There is no evidence to establish that the accused was capable to perform the intercourse. 13. Learned APP submitted that the evidence of the victim and evidence of his brother on the occurrence of the incident is consistent. No admission or a material has been elicited in their cross-examination to create a doubt about their credibility. There is no evidence to establish that the accused was capable to perform the intercourse. 13. Learned APP submitted that the evidence of the victim and evidence of his brother on the occurrence of the incident is consistent. No admission or a material has been elicited in their cross-examination to create a doubt about their credibility. Their evidence is cogent, concrete and reliable. Learned APP submitted that on proper appreciation of the evidence the learned Judge has recorded cogent and concrete reasons to place reliance on their evidence to convict and sentence the accused. 14. I have carefully perused the evidence on record. I have also gone through the judgment and order passed by the learned Additional Sessions Judge. On perusal of the evidence on record, I am satisfied that the evidence of the informant PW-1 and his brother PW-2 is cogent, concrete and reliable. The incident of unnatural sexual assault on the informant has been proved on the basis of the said evidence. It is also evident that the evidence of PW-1 and 2 has been corroborated by the evidence of the medical officer PW-4. PW-1 has narrated the incident in great detail in his examination-in-chief. He has reiterated the facts stated by him in his report. It is undisputed that the father of the informant was a tenant of the accused. The tenanted premises are on the first floor. Similarly, the house of the accused is also on the front side of the house of the informant. The informant (PW-1) has stated that on 02.05.2019 he and his brother went to sleep in the gallery in front of their house. The accused came there at about 9:00 p.m. to 9:30 p.m. and told them to come and sleep with him inside the house. There was a cooler facility in the house of the accused. It was the summer season. The informant and his brother, as suggested by the accused, went inside the house and slept. The accused, after half an hour, told his brother that the informant was blocking the air of the cooler and on this pretext, prevailed upon the informant to come down from the cot and sleep on the mattress on the floor. The informant has stated that he followed the suggestion of the accused and went to sleep on the floor. He has stated that thereafter they went to sleep. The informant has stated that he followed the suggestion of the accused and went to sleep on the floor. He has stated that thereafter they went to sleep. He has stated that while asleep he realized that someone was giving forceful jerks to him from his backside. He woke up. He found that his pant was removed up to his knee level. The accused was in a naked condition. The accused slept on him and was giving jerks. He has stated that he pushed the accused and woke up his brother. He has further stated that his brother saw them. Thereafter, they went outside. They went to their house and narrated the incident to their father. Thereafter, their father went to the accused and made an inquiry with him about his wrong doings. The accused quarrelled with the father of the informant. 15. This witness was subjected to searching and gruelling cross-examination. I have minutely perused his cross- examination. The defence of the accused is that he had to recover Rs.10,000/- from the father of the informant. He demanded the money from the father of the informant and on that count, a quarrel took place between him and the father of the informant. It was further suggested that in order to avoid the payment of Rs.10,000/- they concocted a story and lodged the false report against him. The informant PW-1 has denied this suggestion. Perusal of his cross-examination would show that despite searching cross-examination, no admission of any significance to support the defence of the accused has been brought on record. On the basis of the cross-examination, his credibility has not been shaken in any manner. It is seen that while reporting the matter to the police in place of the accused, the name of the father of the accused was mentioned. The witness has clarified that while writing the report, the name of the father of the accused was typed because of mistake. The report is at Exh. 20. The report was promptly lodged in the night itself. Perusal of the report would show that the informant had narrated almost all the facts deposed by him before the Court. There is no material omission or inconsistency in his evidence. His evidence is consistent with the facts stated in the report at Exh. 20. The report is at Exh. 20. The report was promptly lodged in the night itself. Perusal of the report would show that the informant had narrated almost all the facts deposed by him before the Court. There is no material omission or inconsistency in his evidence. His evidence is consistent with the facts stated in the report at Exh. 20. PW-1 has stated that from the police station he was sent to the hospital for medical examination. He has stated that he was examined by the doctor. He has further stated that he narrated the history of the assault to the doctor. The medical officer has been examined to prove this fact. As far as the evidence of PW-1 is concerned, on its minute scrutiny, I do not see any reason to discard and disbelieve the same. The informant had no reason to falsely implicate the accused. The injury to the anus of the informant is the most important circumstance to corroborate his version. The informant has stated that, on account of the unnatural sexual assault with him by the accused, he was having pain while walking. The doctor has recorded this fact in his report. 16. PW-2 is the brother of the informant. He has deposed about the incident. It is to be noted that the actual incident of the unnatural sexual assault on the informant was not seen by him. He has stated that he was woken up by the informant. He has stated that at that time he saw that the informant was in a frightened condition. He caught hold of his pant in one hand. He has stated that the accused had committed a wrong with him. He has stated that thereafter they went to their house and narrated the incident to their father. He has stated that thereafter they went to the police station and reported the matter to the police. The evidence of PW-2 is consistent. No material has been elicited in his cross- examination to demolish his testimony. In his cross- examination, he has reiterated certain relevant facts as to the occurrence of the incident. He has denied the suggestions put to him on behalf of the accused consistent with the defence of the accused. In his evidence, he has narrated the events occurred prior to the actual occurrence of the incident in the night. PW-2 is the elder brother of the informant. He has denied the suggestions put to him on behalf of the accused consistent with the defence of the accused. In his evidence, he has narrated the events occurred prior to the actual occurrence of the incident in the night. PW-2 is the elder brother of the informant. It is seen that his presence on the spot with his brother has not been challenged at all. I do not see any reason to discard and disbelieve his evidence. PW-2 had no reason to falsely implicate the accused. The account of the incident narrated by him is consistent with the testimony of the informant. 17. In this background, it is necessary to appreciate the evidence of the medical officer PW-4. PW-4 has stated that on 03.05.2019 he was working as a medical officer with the Government Medical College and Hospital, Chandrapur. He has further stated that, as per the requisition received from the police station Chandrapur, he had examined the informant. The requisition is at Exh. 36. He has stated that the informant was brought by Mr Limbaji, Bakal No. 1100. He has stated that the informant narrated the history of assault. The informant narrated about the unnatural sexual assault on him. He has stated that he examined the informant and found anal tear at the 12 o’clock position. He has stated that on the basis of this injury, he opined that the possibility of the sexual assault was not ruled out. The medical certificate is at Exh. 37. He has stated that he had answered the queries raised by the police. He has specifically answered that the possibility of unnatural sexual assault was not ruled out. He had collected the blood samples and other samples of the informant. In his cross-examination, he has stated that he had examined the informant between 5:30 a.m. and 6:30 a.m. He has stated that except for the injury mentioned in the certificate, he did not find any other injury on the person of the informant. In his cross-examination, he has categorically stated that the 12 o’clock position means the injury in a straight line. He has stated that such type of injury could be possible in the case of the person having piles problem. He has stated that if there is an act of penetrative sexual assault through anal, then there is sign of tenderness and dilation. He has stated that such type of injury could be possible in the case of the person having piles problem. He has stated that if there is an act of penetrative sexual assault through anal, then there is sign of tenderness and dilation. He has stated that he mentioned the sign of a pain, while examining the informant, in his report. Perusal of the evidence of the doctor (PW-4) would show that there was injury to the anal of the informant. The anal tear was at 12 o’clock position. The informant had pain at the time of the examination. This fact would show that the injury was fresh. Perusal of the report would show that the medical officer recorded that the informant had pain during walking and defecation. 18. Learned Advocate for the accused/appellant submitted that the opinion given by the medical officer is not cogent and concrete opinion. It is pointed out that as per the opinion i.e. Clause No. 11, the medical officer was required to tick the relevant columns from (a) to (d). It is pointed out that the medical officer has added column (e) to give his opinion. It is pointed out that in the case of a carnal intercourse, the opinion must fit in any of the clauses from (a) to (d). In my view, this submission cannot be accepted. The medical officer, on the basis of the injury noticed by him, opined that the possibility of sexual act was not ruled out. In my view, this is a positive opinion. It was not a guarded opinion. The doctor had collected the samples. It is true that the report of the analysis of the samples does not support the case of the prosecution. 19. Learned Judge, on minute scrutiny of the evidence, found the said evidence worth credible. On re-appreciation of the evidence, I do not see any reason to discard and disbelieve the evidence. The possibility of false implication, as suggested by the accused, has been completely ruled out. The account of the incident narrated by the informant cannot be disbelieved. The evidence of the PW-1/informant has not been shaken. The evidence of his brother/PW-2 is also consistent. Their evidence, on minute scrutiny, is found to be credible and trustworthy. The conduct of PW-1 and 2 is consistent with the occurrence of the incident narrated by them. The account of the incident narrated by the informant cannot be disbelieved. The evidence of the PW-1/informant has not been shaken. The evidence of his brother/PW-2 is also consistent. Their evidence, on minute scrutiny, is found to be credible and trustworthy. The conduct of PW-1 and 2 is consistent with the occurrence of the incident narrated by them. In the night itself, they went to their father and informed him about the incident. The father has not been examined. However, they have stated that when they informed their father about the incident, the father went to the house of the accused and questioned him. They have stated that the accused quarrelled with their father. The father took them to the police station. The report was lodged. The prompt lodging of the report of the incident in the night itself is the most important circumstance to reflect upon the credibility of the evidence of the informant and his brother. The defence of the accused is not probable. The accused, as can be seen from the evidence, took the advantage of the situation. PW-1 and 2 have stated that his wife was not present in the house. She had gone to her parents house. In the facts and circumstances, I do not see any reason to discard and disbelieve the evidence of the prosecution. 20. The prosecution has failed to prove beyond doubt the age of the informant. The proof of the age of the informant is sine-quo-non for attracting the offence under the POCSO Act. Since the prosecution has filed to prove the age of the informant, the accused cannot be held guilty of the offence punishable under Section 4 of the POCSO Act. The accused, is therefore entitled for acquittal under Section 4 of the POCSO Act. The imprisonment of 7 years has been awarded under Section 4 of the POCSO Act. Section 4 provided a minimum sentence of seven years. The learned Judge, therefore, awarded a sentence of seven years. No separate sentence was awarded under Section 377 of the IPC. 21. In this appeal, the evidence on record is sufficient to prove the charge under Section 377 of the IPC. The conviction of the accused under Section 377 of the IPC cannot be interfered with. Learned Advocate for the appellant submitted that he has already undergone five years and three months of imprisonment. 21. In this appeal, the evidence on record is sufficient to prove the charge under Section 377 of the IPC. The conviction of the accused under Section 377 of the IPC cannot be interfered with. Learned Advocate for the appellant submitted that he has already undergone five years and three months of imprisonment. Learned Advocate submitted that under Section 377, the Court has discretion while awarding the sentence. Learned Advocate submitted that the accused is 45 years old. He has a family to look after. It is submitted that his parents are old. Learned Advocate, therefore, submitted that the substantive sentence already undergone by the accused would serve the purpose. It is submitted that the accused by this time might have repented over his mistake. Learned APP submitted that considering the gravity of the crime, the sentence awarded by the learned Judge is just, proper and reasonable. 22. I have given thoughtful consideration to submissions made by learned Advocates for the parties. In my view, there is substance in the submissions advanced by the learned Advocate for the appellant. In the facts and circumstances, the sentence already undergone by the accused would be the appropriate sentence for the offence under Section 377 of the IPC. Learned Additional Sessions Judge has sentenced the accused to pay a fine of Rs.5,000/- and in default of payment of fine directed him to suffer imprisonment for one year. In my view, as far as the sentence of fine is concerned, it does not warrant any interference. However, the sentence in default needs modification. In the facts and circumstances, the appellant in default of payment of a fine shall undergo simple imprisonment for one month. 23. Before parting with the matter, it is necessary to place on record the appreciation for the able assistance rendered by the learned appointed Advocate Mr. Rajnish Vyas. Learned appointed Advocate Mr Rajnish Vyas within a short time prepared in the matter and extended the able assistance to the Court. The Court appreciates his assistance. Learned appointed Advocate Mr Rajnish Vyas be paid, his professions fees, as per rules. 24. Accordingly, the criminal appeal is partly allowed. 25. The judgment and order of conviction and sentence of the appellant/accused dated 16.06.2021 for the offence punishable under Section 4 of the Protection of Children From Sexual Offices Act, 2012 is set aside. 26. Learned appointed Advocate Mr Rajnish Vyas be paid, his professions fees, as per rules. 24. Accordingly, the criminal appeal is partly allowed. 25. The judgment and order of conviction and sentence of the appellant/accused dated 16.06.2021 for the offence punishable under Section 4 of the Protection of Children From Sexual Offices Act, 2012 is set aside. 26. The appellant/accused is acquitted of the offence under Section 4 of the Protection of Children From Sexual Offices Act, 2012. 27. The judgment and order of conviction of the appellant/accused for the offence punishable under Section 377 of the Indian Penal Code is maintained. 28. The appellant- Firoz Khan Habib Khan Pathan is directed to undergo imprisonment which he has already suffered. 29. The sentence in default of payment of fine is modified. The accused is directed to pay fine of Rs.5,000/- and in default of payment of fine to suffer simple imprisonment for one month. 30. The criminal appeal stands disposed of, accordingly. Pending applications, if any, stand disposed of.