JUDGMENT :

Revati Mohite Dere, J.

1. The appellant vide Judgment and Order dated 6th June, 2012, passed by learned Additional Sessions Judge-4, Kolhapur in Sessions Case No.142 of 2010, has been convicted and sentenced as under:-

-for the offence punishable under Sections 511 r/w 376 of the Indian Penal Code to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 4,000/-, in default, to suffer rigorous imprisonment for 1 month.

-Out of the fine amount so deposited, the learned Additional Sessions Judge-4, Kolhapur, directed that an amount of Rs. 3,000/- be paid to the complainant for the loss suffered to her and to the minor victim girl, under Section 357(1) of the Code of Criminal Procedure.

2. The prosecution case in brief is as follows:-

The complainant (PW1) is the mother of the victim girl, who was about 4 1/2 years at the time of the incident. The appellant is the cousin brother-in-law of the complainant (PW1), residing in the house adjacent to the complainant's house. According to the complainant (PW1), the incident took place on 7th May, 2010 at about 6.15 to 6.30 p.m. She has stated that she called out to her daughter (victim girl) and as she did not come, she went to the house of the appellant and found her daughter in the appellant's house. According to the complainant (PW1), her daughter came out of appellant's house, by putting on her nicker. She has stated that when she questioned her daughter, she disclosed that the appellant had removed her nicker and was doing something to her. According to the complainant (PW1), she removed her daughter's nicker and saw semen stains on her daughter's nicker and accordingly informed her brother-in-law (PW5)-Dnyandev Salokhe. Thereafter, the appellant's mother was called and was informed about the incident. According to the prosecution, when the complainant (PW1) told the appellant's mother about the nicker, the appellant's mother took the nicker with her. The complainant (PW1) has stated that her daughter had trouble urinating, pursuant to which, she took her to Dr. Pruthwiraj Dashavant (PW2) who told her that there was swelling on her daughter's private part. Dr. Dashavant is also stated to have told her to lodge a complaint with the police station, pursuant to which, she lodged a police complaint/FIR, with the Karveer Police Station, Kolhapur. Thereafter, the complainant's daughter was referred for medical examination to C.P.R. Hospital, Kolhapur. Thereafter, the appellant was arrested. After investigation, charge-sheet was filed as against the appellant for the alleged offence punishable under Sections 376 r/w 511 of the Indian Penal Code in the Court of the learned Judicial Magistrate First Class, Kolhapur. As the offence punishable was triable by the Court of Sessions, the case was committed to the Court of Sessions for trial.

Charge was framed, as against the appellant for the offence punishable under Sections 376 and 511 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried.

The prosecution in support of his case examined 9 witnesses. PW1-complainant and mother of the victim girl aged 4 1/2 years; PW2-Dr. Pruthwiraj Dashavant, where the complainant had taken the victim girl as she had pain in her private part; PW3-Anjum Mahammad Shaikh, panch to the spot panchanama (hostile); PW4-Madhukar Kamble, also panch to the spot panchanama (hostile); PW5-Dnyandev Salokhe, brother-in-law of the complainant and uncle of the victim girl, who was present in the complainant's house at the relevant time; PW6-Subhash Patil, Police Patil, who is stated to have advised the complainant and her husband to lodge a police complaint; PW7-Naseerkhan Pathan, Police Head Constable, attached to Karveer Police Station, who registered an FIR and arrested the appellant; PW8-P.S.I.-Ashok Jain, who was present at Karveer Police Station and who sent the victim girl for medical examination to C.P.R. Hospital, Kolhapur along with a lady constable and PW9-Dr. Amol A