V.M. DESHPANDE, J.

1. By the present appeal, the appellant is challenging judgment and order of conviction dated 23.5.2017 passed by learned Special Judge (POCSO Act) and Additional Sessions Judge, Nagpur in Special Criminal Case No. 85/2014.

2. By the impugned judgment and order of conviction, the appellant (hereinafter referred to as “the accused” for the sake of brevity) is convicted for offences punishable under Sections 323, 363 and 377 of the Indian Penal Code and under Section 4 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act” for the sake of brevity). Sentences awarded to the accused were of 6 months, 3 years and 5 years along with different fine amount on each count. Learned Judge of the Court below also directed that all the sentences to run concurrently.

3. I have heard learned counsel Shri L.B. Khergade for the accused and learned Additional Public Prosecutor Shri M.K. Pathan for the respondent/State. Both learned counsel took me through in detail notes of evidence of prosecution witnesses and other relevant documents available in paper-book as well as in record and proceedings.

4. According to learned counsel Shri L.B. Khergade for the accused, in absence of any positive medical evidence, the accused cannot be convicted for offence punishable under Section 377 of the Indian Penal Code, therefore, his conviction and sentence for offence punishable under Section 4 of the POCSO Act is untenable. He also submitted that independent witness Yadav, who made phone call to father of victim, is not examined by the prosecution. He submitted that said Yadav was not cited as a witness and that is fatal for the prosecution. He, therefore, submitted that the appeal is required to be allowed and the accused, who is in jail after the conviction, is required to be released forthwith.

5. Per contra, it is submission of learned Additional Public Prosecutor Shri M.K. Pathan for the respondent/State that evidence of two doctors i.e. Shri Sachin S/o Subhash Giri (PW-4) and Sandipkumar S/o Manohar Gajbhiye (PW-6) clearly establishes fact that to some extent there was penetration of the male organ of the accused in the anus of the victim and in view of fact that the victim is a child within the meaning of the POCSO Act, learned Judge of the Court below rightly convicted the accused for the offences punishable under Section 377 of the Indian Penal Code and under Section 4 of the POCSO Act and awarded minimum punishment as prescribed under Section 4 of the said Act. He also submitted that Exhibit 20, chemical analyzer's report in respect of mud particles, clearly clinches issue in favour of the prosecution. He supported reasoning as supplemented by learned Judge of the Court below and, therefore, submitted that the appeal be dismissed.

6. Abid Sheikh S/o Adil Sheikh (PW-2), father of the victim, lodged report with Jaripatka Police Station. His oral report is at Exhibit 29. On the basis of the said report, a crime was registered, as Crime No. 101/2014, for offences punishable under Sections 363, 377, and 506 of the Indian Penal Code and under Sections 7 and 8 of the POCSO Act. Printed First Information Report is at Exhibit 30. From evidence of Police Inspector Shri Budhan S/o Pandurang Sawant (PW-7), who conducted investigation, it is clear that first informant Abid Sheikh came to the police station for lodging the report and woman Police Sub Inspector Shrikhande reduced into writing his report as per his narration.

7. Learned counsel Shri L.B. Khergade for the accused submitted that in absence of examination of woman Police Sub Inspector Shrikhande, the prosecution has not proved the First Information Report. The said particular submission has to be rejected at the threshold itself since first informant Abid Sheikh (PW-2) specifically stated in his evidence that as per his say the report was reduced into writing and when the said report was brought to his notice, while he was in wit