JUDGMENT

A.M. Badar, J. (Oral) - By this appeal, the appellant/accused is challenging the judgment and order dated 21st August 2014 passed by the learned Additional Sessions Judge, Nashik in Sessions Case No.61 of 2014 thereby convicting the appellant/accused of the offences punishable under Section 376 of the Indian Penal Code as well as under section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ''POCSO Act'' for the sake of brevity) and sentencing him to suffer rigorous imprisonment for ten years apart from payment of fine of Rs. 10,000/and in default of payment of fine to undergo further rigorous imprisonment for two years.

2. Brief facts leading to the prosecution of the appellant/accused can be summarized thus :

(a) The appellant/accused is biological father of the victim girl, who is examined as P.W.No.2 during the course of trial. According to the prosecution case, she was studying in 5th Std. and her date of birth is 10/04/2003. At the time of the incident, she was residing along with her parents and brother at Ghoti in Igatpuri Taluka of Nashik District.

(b) On 29/11/2013, she was sleeping along with her mother in the kitchen and the appellant/accused was sleeping in the another room. At about 5.30 a.m. of that day, her mother woke up. She asked the victim/P.W.No.2 to sleep in the front room of the house and went for fetching the water. She returned after 15 to 20 minutes thereafter. At that time, her daughter viz. P.W.No.2 disclosed her that her father i.e. appellant/accused had committed forcible sexual intercourse with her. P.W.No.1 Mandabai, who happens to be mother of the victim girl/P.W.No.2, insisted for lodging the report with police. However, her daughter P.W.No.2 become frightened. The appellant/accused used to beat her as well as her daughter P.W.No.2, who happens to be the victim child. Therefore, P.W.No.1 Mandabai did not dare to lodge report against the appellant/accused. Ultimately, on 03/12/2013, she gathered courage to lodge the report and accordingly did so. On the basis of her report (Exhibit 12), Police Station, Ghoti registered Crime No.165 of 2013 for offences punishable under Sections 376 (2)(f), 323, 504 and 506 of the Indian Penal Code as well as under Section 4 of the POCSO against the appellant/accused.

(c) Routine investigation followed and ultimately, the appellant/accused came to be chargesheeted. The learned trial Court framed charge for offences punishable under Sections 376(2)(f), 323, 504 and 506 of the Indian Penal Code as well as under Section 4 of the POCSO against the appellant/accused.

(d) In support of its case, the prosecution has examined in all six witnesses. First Informant/mother Mandabai is examined as P.W.No.1 whereas her daughter, who is victim of the crime in question is examined as P.W.No.2. Panch witness Dashrathsingh is examined as P.W.No.3. Village Development Officer Hari Kalu Suryavanshi is examined as P.W.No.4 for proving date of birth of the victim child. Dr.Suresh Gholap, who had medically examined the victim child is examined as P.W.No.5. Investigating Officer Bhaskar Jadhav is examined as P.W.No.6. Reliance is also placed on documentary evidence of the prosecution. Defence of the appellant/accused was that of total denial. After hearing the parties, the learned trial Court was pleased to convict the appellant/accused of the offences punishable under Sections 376 of the Indian Penal Code as well as under Section 4 of the POCSO and he is sentenced accordingly as indicated in the opening paragraph of this Judgment.

3. I heard Ms.Farhana Shah, the learned appointed Advocate appearing for the appellant/accused. She vehemently argued that medical evidence is not supporting the case of prosecution so also the forensic evidence. The hymen of the victim girl was seen to be intact and the report of her medical examination goes to show that even her vagina was not admitting single finger. Therefore, evidence of the P.W.No.2/v