JUDGMENT :

V.M. Deshpande, J.

By the present appeal, the appellant (hereinafter referred to as, "the accused" for the sake of brevity) is challenging judgment and order of conviction dated 4.12.2018 passed by learned Special Judge under Protection of Children from Sexual Offences Act, 2012 in Special Child Criminal Case No.45/2013.

2. By the impugned judgment and order of conviction, the appellant is found to be guilty for offence punishable under Section 376(1)(i) of the Indian Penal Code and for offence under Section 5(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act") and is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 3 months. Learned Judge below observed that the accused is entitled for setoff under Section 428 of the Code of Criminal Procedure since he is in jail.

3. Heard learned counsel Shri S.K.Sable appointed through the High Court Legal Services Sub Committee at Nagpur to represent the appellant and learned Additional Public Prosecutor Shri N.R.Rode for the respondent/State. Both learned counsel took me through record and proceedings and notes of evidence of the case in detail.

4. Criminal law was set into motion by Sharda (PW3). She is mother of victim (PW1). Sharda lodged her oral report with Lakadganj Police Station, Nagpur on 5.3.2013. The oral report is at Exhibit 77. Crime was registered against unknown person vide Crime No.69/2013 for offences punishable under Section 376(1) (2)h) of the Indian Penal Code and under Sections 5(m)(u) and 6 of the POCSO Act. Printed First Information Report is at Exhibit 78.

5. As per oral report (Exhibit 77), husband of first informant Sharda (PW3) is a labour and having two daughters including victim (PW1) and a son. The victim is her elder daughter and taking education at "Vinayakrao Deshmukh Highschool/Jr.College, Shantinagar, Nagpur" in 5th Standard. She used to go to the school at 7:00 in the morning and used to return by 12:30 in the noon. It is stated in the report that on 5.3.2013 at 7:00 in the morning as usual the victim went to the school and Sharda was performing her household duties. At around 8:00 a.m., one Bhidekar Sir came and informed Sharda that one boy assaulted her daughter and, therefore, she should send her father in the school. Therefore, Sharda sent her husband to the school. After some time, her husband made a phone call and called her to the school. Therefore, Sharda immediately rushed to the school. She found the victim was standing near a lady teacher in a disturbed condition. Therefore, as per the report, Sharda made enquiries with her. Upon that, it was disclosed by the victim that at 6:40 a.m. the victim went to the school. At that time, nobody was there in the school and, therefore, she was sitting alone on a chair kept outside classroom. That time, one boy wearing chocolate colour T-Shirt and night pant having fair complexion and covering his face with mask came and asked her name. Upon that, the victim disclosed her and her mother's name. As per the report, thereafter, the boy said, ^^'kkjnk dh yMdh bruh cMh gks x;kh D;k^^ and, thereafter, he asked the victim to follow him. When it was objected by her, she was dragged to a nearby place. Therefore, the victim started shouting. To silence her voice, according to the report, he removed his handkerchief which was on his face and, thereafter, with the said the victim's mouth was gagged and he then removed clothes of the victim. Firstly, he inserted his finger in her private part due to which there was pain in her private part. It is also stated that in the meanwhile he heard noise of vehicle and, therefore, the boy ran away from the spot. It is stated in the report that, thereafter, the victim somehow came to the school and narrated the incident to Shri Bhidekar, a teacher, who, thereafter, took her to class.

With th