The central legal point established is the requirement for proper identification of the accused, the need for conclusive medical evidence in sexual assault cases, and the impact of discrepancies in the victim's statements on the case.

JUDGMENT

1. By this Appeal, the Appellant-Accused is challenging the judgment and order dtd. 23/12/2019, passed by the learned Special Judge at Pune in Special POCSO Case No.17 of 2017. By the impugned judgment the learned Special Court has convicted the Appellant for the offence punishable under Sec. 5(m) read with Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') read with Sec. 376(2)(i) of the Indian Penal Code (IPC for short).

2. The Appellant has been sentenced to suffer rigorous imprisonment for 10 years with fine. The learned Special Judge however has acquitted the Appellant from the offence punishable under Sec. 323 of Indian Penal Code.

3. The prosecution case may be briefly stated thus :-

The first informant, who is the mother of the victim girl was working in Central Park Hotel at Pune. Her husband is doing the work of collecting garbage. On 7/11/2016, when the informant came back from her work at 7.00 p.m., she found that the victim, who is her minor daughter aged about 6 years, was having fever. Her elder daughter brought medicines from a medical shop, which was administered to the victim. According to the informant, on account of the fact that the victim was suffering from fever, she chose not to bathe her. However, on 10/11/2016 at 8.00 a.m. when she was trying to bathe the victim, she noticed that there was redness and blood on her private parts with dry blood stains on the thighs. On inquiry, victim started crying. The victim informed that on the previous Monday when she was playing outside her house, the neighbourer (who she calls Dada), who according to the prosecution, is the Appellant/Accused, took her in his house at about 9.00 hrs to 10.30 hrs. and closed the door. It is the material case that the Appellant lifted her gown and inserted his hand in her knicker and inserted his finger in her vagina. Victim experienced pain and she shouted. The Appellant hit her on her back. She started crying, when he opened the door and let her go. He threatened her not to disclose the incident to anyone.

4. The informant narrated the incident to her husband, after which the FIR (Exhibit-17) came to be registered on 10/11/2016.

5. During the course of the investigation, the statements of the witnesses and the victim (PW-3) were recorded. The victim was sent for medical examination and after completion of the investigation, a charge-sheet is filed.

6. The learned Special Judge framed charge against the Appellant for the aforesaid offences, to which the appellant pleaded not guilty and claimed to be tried. The defence of the Appellant is of total denial and false implication.

7. At the trial, the prosecution examined in all five witnesses, namely the mother and the father of the victim as PW-1 and PW-2. The victim is examined as PW-3. Medical Officer Dr. Nisha Watti as PW-4 and the Investigating Officer Mr.Krishna Indalkar as PW-5.

8. The Appellant did not lead any evidence in defence.

9. According to the Appellant, there was a quarrel between his mother and family members of the victim, which is the reason for his false implication.

10. The learned Special Judge has found the Appellant guilty. Hence this Appeal.

11. I have heard the learned counsel for the Appellant and the learned APP. With the assistance of the learned counsel for the parties, I have gone through the record.

12. It is submitted by the learned Counsel for the Appellant that the Special Court has framed charge under Sec. 3 and 4 of the POCSO Act read with Sec. 376 (2)(i) of IPC. However, the Appellant has been convicted under Sec. 5(m) read with Sec. 6 of the POCSO Act which is a graver offence than the offence under sec. 3 read with sec. 4 of the POCSO Act. It is submitted that thus the conviction of the Appellant for the offence under Sec. 5(m) read with Sec. 6 is not sustainable, particularly, when sec. 376(2) (i) was omitted in the year 2018. Reliance is placed on the decision of this court in Abdul Rajak Chapparban vs. S