JUDGMENT : H.P.SANDESH, J. This appeal is filed challenging the judgment of conviction and sentence passed in S.C.No.142/2017 by the II Additional District and Sessions (Special) Judge, Dakshina Kannada, Mangalore. 2. Heard the learned counsel appearing for the respective parties. 3. The factual matrix of the case of the prosecution that the parents of the victim boy are employed in the Bank. On 13.06.2016, both of them had gone to attend their respective work. On that day, their children and their mother were in the house. In the noon, son of the complainant aged about 11 years made a telephone call to the complainant and asked him to come home immediately. Accordingly, when the complainant came home and enquired the victim, he discloses that on that day at about 12.20 p.m., accused, who is a scrap collector had come to their house and asked family members whether they had any scrap materials. At that time, grandmother of the victim boy told that there was no scrap material in their house. Inspite of that, accused asked the victim boy to come to the back of the house on the pretext of searching for scrap materials. When the victim boy went behind the house, accused held him firmly and gave a kiss on his cheek. Thereafter, by using force, he removed the shorts and made him not to move and penetrated his penis to the anus of the victim boy. Victim boy shouted and accused put his hand on his mouth and also threatened him. Again victim boy shouted loudly and thereafter accused ran away from that place. 4. Based on these allegations, a complaint came to be lodged against the accused and the police have registered the case invoking Section 377 of IPC and Sections 3(a), 4, 8 and 12 of POCSO Act against the accused and investigated the matter and filed the charge- sheet. Accused was secured and he did not plead guilty and claims for trial. In order to prove the case of the prosecution, prosecution mainly relied upon the evidence of PW1 to PW10 and got marked the documents at Ex.P1 to P10 and material objects as MO1 to MO10. The accused subjected for 313 statement and he did not choose to lead any evidence. In order to prove the case of the prosecution, prosecution mainly relied upon the evidence of PW1 to PW10 and got marked the documents at Ex.P1 to P10 and material objects as MO1 to MO10. The accused subjected for 313 statement and he did not choose to lead any evidence. The Trial Court having considered both oral and documentary evidence placed on record particularly, the evidence of PW1 to PW3 wherein they deposed that on the date of incident, accused has come to the complainant’s house for collecting scrap materials and thereafter, in the pretext of searching for scrap materials, accused took the victim to the backyard of the house and committed unnatural offence on the minor victim boy. The evidence of neighbourer i.e., PW3 also discloses that on the date of incident, accused came to his house first asking for scrap material and thereafter PW3 had seen the accused going to the house of complainant. Evidence of PW3 further discloses that after half an hour, he heard screaming sound of PW1 and immediately, PW3 had gone to the house of PW1 and had seen the accused running from the spot and PW1 was weeping. When enquired, PW1 narrated the incident and PW3 suggested him to inform his father over phone. Accordingly, intimation was given to the father of the victim at about 12.30 p.m. stating the incident and immediately, PW2 came to home and enquired with victim and thereafter immediately lodged the complaint. The Trial Court also considered the evidence of doctor who has been examined as PW4 who deposed that after the incident, immediately, the boy was taken to the hospital and his opinion is that anal intercourse could have occurred because of mucosal tear of anterior wall and because of tenderness near the anal region and also taken note of the material on record and comes to the conclusion that the prosecution has proved the case and hence, the Trial Court convicted the accused for the offence punishable under Sections 447 and 377 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and sentenced for rigorous imprisonment for a period of ten years with fine of Rs.5,000/-. Being aggrieved by the judgment of conviction and sentence, the present appeal is filed before this Court. 5. Being aggrieved by the judgment of conviction and sentence, the present appeal is filed before this Court. 5. The learned counsel for the appellant would vehemently contend that the material on record does not disclose any material with regard to committing of the offence punishable under Section 6 of the POCSO Act. The counsel also brought to notice of this Court Section 5 of the POCSO Act regarding aggravated penetrative sexual assault and also read the said section in entirety and also brought to notice of this Court to Section 7 of POCSO Act wherein it is held that sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. Hence, the counsel submits that it attracts Section 8 of POCSO Act not Section 6 of the said Act. The counsel also would vehemently contend that the accused has already served five years, six months and fourteen days and the Trial Court comes to the conclusion that that it is an offence under Section 7 of the POCSO Act and punishment provide under Section 8 of the POCSO Act wherein it is held that whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Hence, the learned counsel prayed this Court to set off against the appellant since he underwent punishment more than five years. 6. Per contra, the learned counsel appearing for the State would vehemently contend that the accused not disputes the fact that the victim had sustained the injury and the same is evident from the evidence of doctor. The counsel further submits that PW2 is the father of the victim boy and he came to know about the incident belatedly and he took the victim boy to the hospital immediately i.e., on the very same day in the evening. The counsel also would contend that PW4 who is a doctor deposed that there was a mucosal tear measuring 0.5 c.m. bleeding was seen on examination. The counsel also would contend that PW4 who is a doctor deposed that there was a mucosal tear measuring 0.5 c.m. bleeding was seen on examination. The counsel also submits that the incident was taken place at about 1.00 p.m. and immediately, PW2 was called by the neighbourer PW3 and PW3 also seen going the accused inside the house of PW1 after visiting his house and he also heard the screaming sound and also found that the accused was running from the backyard of the house of PW1. The counsel also would vehemently contend that the Trial Court taken note of the evidence of PW1 to PW3 as well as PW4 and it is not disputed fact that the victim had a mucosal tear measuring 0.5 c.m. and date of incident also not disputed and apart from that the evidence of PW4 is very clear that the causes for mucosal tear are hard stools, any foreign body insertion to the anal region, piles and fistula and also not mentioned the age of the tear in Ex.P4 and nothing is elicited in the cross-examination of PW4 and evidence is also clear that mucosal tear heal within two to eight days and in case of major mucosal tear, it takes nearly two weeks to heal. The counsel would vehemently contend that the Trial Court rightly taken note of the evidence of PW1 to PW3 as well as medical evidence of PW4. Under such circumstances, the very contention that it attracts Section 7 at the most and not Section 5 and also penal provision not attracts Section 6 and at the most it attracts Section 8 cannot be accepted and there was no delay in lodging the complaint and the said fact also taken note of by the Trial Court and hence, it does not requires any interference by this Court. 7. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, the point that would arise for the consideration of this Court is: 1. Whether the Trial Court committed an error in convicting and sentencing the accused and whether it requires interference of this Court exercising the appellate jurisdiction? 2. What order? Point No.1: 8. Heard the learned counsel appearing for the respective parties and also perused the material on record. Whether the Trial Court committed an error in convicting and sentencing the accused and whether it requires interference of this Court exercising the appellate jurisdiction? 2. What order? Point No.1: 8. Heard the learned counsel appearing for the respective parties and also perused the material on record. The charges leveled against the accused are Section 477 and 377 of IPC and Section 6 of the POCSO Act. Considering Section 5 and Section 7, whether it attract Section 6 or Section 8 as contended by the counsel for the appellant and invoking of penal provisions by the prosecution, this Court has to reanalyse the material on record. 9. The evidence of PW1 is that at about 12.00 p.m., he was with his grandmother and accused, who is a scrap collector had come to their house and asked family members whether they had any scrap materials. At that time, grandmother of the victim boy told that there was no scrap material in their house. Inspite of that, accused asked the victim boy to come to the back of the house on the pretext of searching for scrap materials. The act of the accused was narrated in paragraph 3 of his evidence and immediately, he brought to the notice of this incident to the grandmother and the grandmother told him to inform to his father and accordingly, the intimation was given to his father and father also came and gave complaint and case was registered and spot mahazar was conducted. It is his evidence that he was examined before the Magistrate under Section 164 of Cr.P.C and he also identified his signature. This witness was subjected to the cross-examination wherein it is elicited that on that day, he was wearing T-shirt, shots and same was given to the police at the time of mahazar and also deposed that incident was taken place within 15 minutes of reply given to the grandmother and he also went along with the father to the police station. He identified his signature in the mahazar. A suggestion was made that no incident was taken place and complaint was given at the instance of the father and the villagers and the said suggestion was denied. 10. The other witness is PW2 who is a father of the victim boy. He identified his signature in the mahazar. A suggestion was made that no incident was taken place and complaint was given at the instance of the father and the villagers and the said suggestion was denied. 10. The other witness is PW2 who is a father of the victim boy. He deposed that after coming to know about the incident, he gave the complaint and also identifies his signature in Ex.P3 and he deposed that his son revealed the act of accused and when the complaint was given, on the same day, the police conducted the spot mahazar. In the cross-examination of this witness, he deposed that after receiving the information, he rushed to the house and also admits that when he came to the house, no persons were near the house and he gave the complaint between 1.30 to 2.00 p.m. and accused was brought to the police station on the very same day at about 3.00 p.m. and police also came to the spot at 4.00 p.m. and he cannot tell that who accompanied with the police. A suggestion was made that police have not conducted any mahazar and also he has not signed any mahazar and the same was denied. 11. The other witness is PW3 who is a neighbour. PW3 in his evidence he says that accused first came to his house asking scrap material and thereafter he went to the house of PW1 and he went behind the house and thereafter he went inside the house and as soon as he heard the screaming sound, he rushed to the spot wherein he saw running the accused from the spot and he witnessed the same and on enquiry, PW1 revealed the act of the accused. This witness also subjected to the cross- examination wherein he admits that he did not witness the incident but he had witnessed that accused running from the house of PW1 and also admits that he has not given any intimation to the police. 12. This witness also subjected to the cross- examination wherein he admits that he did not witness the incident but he had witnessed that accused running from the house of PW1 and also admits that he has not given any intimation to the police. 12. The other witness is PW4 who is a doctor.Doctor says that he had examined the victim boy at 4.10 p.m. on 13.06.2016 and radiology examination showed the victim to be aged between 11 to 12 years and on examination, there were not external injuries on the victim but on anal examination, the victim had a mucosal tear measuring 0.5 c.m., bleeding was seen but no seminal stains were detected near the anal region. Biological evidences were collected from the body of the victim for scientific examination and the clothes were preserved for scientific examination and the doctor opined that anal intercourse could have occurred because of mucosal tear of anterior wall and because of tenderness near the anal region. This witness was subjected to the cross- examination wherein he did not dispute the nature of injury and the answer elicited that the causes for mucosal tear are hard stools, any foreign body insertion to the anal region, piles and fistula and also deposed that he has not mentioned the age of the tear in Ex.P4. Usually, mucosal tear will heal within two to eight days, in case of major mucosal tear, it takes nearly two weeks to heal. In the cross-examination, it is admitted that he has not suggested for colonscopy to the victim and voluntarily stated that she had taken opinion from the general surgeon and not mentioned in Ex.P4 about taking the opinion of the general surgeon. 13. The other witness is PW6 who is a Scientific Officer of RFSL. In the chief examination, he says that presence of blood stains was detected in article No.B3 and C2 and the presence of blood stains were not detected in other articles and the presence of seminal stains were not detected in any of the articles and says that article B3 and C2 were stained with human blood but blood group could not be determined as blood sample was disintegrated and he gave report as per Ex.P6 and serology report as Ex.P7. 14. 14. Having considered both oral and documentary evidence placed on record, it discloses that the prosecution mainly relies upon the evidence of PW3 who is a neighbourer. Though PW3 is says that he has not witnessed the incident but he witnessed that accused running from the backyard of the house of PW1. Apart from that PW2 who is a father deposed that after getting the information, he rushed to the house and took the victim to the hospital and gave the complaint on the same day. The material witness is PW4 who is a doctor and he deposed that he examined the victim at 4.10 p.m. In between three hours of incident, the father was called over phone and thereafter father came and taken the boy to the hospital and provided the medical treatment and complaint was lodged and case was registered. The evidence of PW4 is very clear that on examination, found mucosal tear measuring 0.5 c.m. with bleeding and biological evidences were collected from the body of the victim for scientific examination and clothes were preserved for scientific examination and the opinion of the doctor that anal intercourse could have occurred because of mucosal tear of anterior wall and because of tenderness near the anal region. The age of the victim is 11 years and PW1 who is he victim also narrated the incident to the grandmother and the grandmother in turn informed to the father of the victim and the evidence of P.W.3 is also very clear witnessing the fact that the accused first went to the house of P.W.3 and thereafter went towards the house of the victim and P.W.3 also heard the screaming sound and when P.W.3 came out from his house, he noticed that accused was running from the backyard of the house of P.W.1 and medical evidence also clearly discloses that the victim was subjected to penetrative sexual Act. 15. 15. Though counsel appearing for the appellant relied upon the judgment of the Himachal Pradesh High Court , Shimla and brought to notice of this Court paragraph No.23 wherein discussion was made with regard to the appreciate the point that nature of injuries is concerned, however in the paragraph No.24 the Himachal Pradesh Court taken note of medical jurisprudence and held that it would be evident that in the instant case, the anal herpes of the victim was healthy and no fresh or recent injuries are noticed suggesting false suit in the prosecution case and having taken note of the same comes to such a conclusion, but in the case on hand material clearly discloses that immediately after the incident was taken place, injured was taken to the hospital and also subjected to medical examination and certificate also clearly discloses the same and nothing is suggested in evidence of P.W.1 to P.W.3 and any animosity between the accused and also the P.W.1 to P.W. 3 and also the false implication of the accused. Apart from that medical evidence corroborates the case of the prosecution and the very contention of the counsel appearing for the appellant that at the most it attracts the section 7 and penal provision of Section 8 cannot be accepted since P.W.1 categorically spoken about the manner in which the accused subjected him for penetrative sexual act and also there was a tear of mucosal as deposed by P.W.4 and the evidence available on record not suggests the ingredients of Section 7 as contended by the appellant’s counsel and the material available on record only suggests the evidence and ingredients of Section 5 of the POCSO Act and when such being the case, the very contention of the counsel appearing for the appellant that already he has undergone sentence for more than 5 years cannot be a ground to give any set-off invoking Section 8 instead of Section 6. Hence, I do not find any ground in the appeal to comes to such a conclusion of contention of the appellant’s counsel that it attracts at the most Section 7 and 8 cannot be accepted and hence, there are no grounds to interfere with the findings of the Trial Court. Point No.2: 16. In view of the discussions made above, I pass the following: ORDER The Appeal is dismissed.