The consistent and corroborated testimony of witnesses, supported by medical evidence, is crucial in establishing guilt in sexual offence cases, and contradictory or inconsistent defenses can weaken the accused's position.

JUDGMENT :

Revati Mohite Dere, J.

1. By this appeal, the appellant has impugned the judgment and order dated 16/12/2016 passed by the Learned District Judge - 08 and Special Judge (POCSO Act), Thane, convicting and sentencing him as under:

for the offence punishable under Section 376 (2)(f)(i) of the Indian Penal Code, to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-, in default of payment of fine, to undergo further rigorous imprisonment for 6 months;

for the offence punishable under Section 3(b) read with Section 4 of the Protection of Children From Sexual Offences Act, 2012, to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 500/-, in default of payment of fine, to undergo further simple imprisonment for 10 days;

for the offence punishable under Section 5(m) read with Section 6 of the Protection of Children From Sexual Offences Act, 2012, to undergo rigorous imprisonment for 10 years and pay a fine of Rs. 500/-, in default of payment of fine, to undergo further simple imprisonment for 10 days;

for the offence punishable under Section 342 of the Indian Penal Code, to pay a fine of Rs. 500/-, in default of payment of fine, to undergo further simple imprisonment of 10 days;

for the offence punishable under Section 361 of the Indian Penal Code, to suffer rigorous imprisonment for 6 months and to pay a fine of Rs. 500/-, in default of payment of fine, to undergo further simple imprisonment of 10 days.

All the aforesaid sentences were directed to run concurrently.

The appellant was however, acquitted of the offences punishable under Sections 354, 377, 511 and 172 of the Indian Penal Code and under Section 5(i) of the Protection of Children From Sexual Offences Act, 2012.

2. The prosecution case in short is as under;

On 04/12/2012, the victim girl aged 3½ years (hereinafter referred to as 'X') and her cousin (PW-5) aged 5 years, had gone to play on the playground adjacent to their building. It is the prosecution case that at around 7.00 p.m., 'X' and her cousin (PW-5) had gone to the house of the appellant for playing. The appellant's sister-in-law - Anu Madhvi was an acquaintance of the complainant ('X's mother). At around 8.30 p.m., the appellant is alleged to have come with 'X' and PW-5. The appellant is stated to have brought an ice-cream pack, asking it to be distributed to the girls. In the night, at around 10.00 - 10.30 p.m., 'X' complained of pain near her private part and started weeping. When the complainant asked 'X' as to what had happened, 'X' disclosed that the appellant had removed her nicker and after placing her on the bed had inserted his finger in her private part; and that as she started crying, the appellant brought her back home. When the complainant asked PW-5, aged 5 years about the same, PW-5 disclosed that the appellant had taken 'X' to his bedroom and closed the door. According to PW-5, when she opened the door, she noticed that 'X' was on the bed and the accused was putting on her nicker. Pursuant thereto, 'X's mother lodged a complaint/FIR as against the appellant with the Rabale Police Station, Thane alleging offences punishable under Sections 342, 361, 376, 377, 511, 354 and 172 of the Indian Penal Code and Sections 3(b), 5(i) and 5(m) of the Protection of Children From Sexual Offences Act, 2012. After investigation, chargesheet was filed as against the appellant in the Special Court.

3. The appellant pleaded not guilty to the charges and claimed to be tried.

4. The prosecution, in support of its case, examined seven witnesses i.e. PW-1 - 'X's mother and complainant; PW-2 - Iiyas Ahjaj Shaikh (panch to the spot panchanama); PW-3 - Mrs. Geetanjali Vijay Shinde (Special Executive Officer), who recorded the statement of 'X' aged 3½ years and of PW-5, aged 5 years; PW-4 - Dr. Sumedha Modi Gupta (the Medical Officer at Navi Mumbai Municipal Corporation Hospital, Vashi); PW-5 - 'X's cousin sister, aged 5 years; PW-6 - Kishor Bhikan Bhoyee (Police constable attached