The credibility of a victim's testimony, the nature of the offense under POCSO Act, and the lack of injury in a medical examination do not necessarily affect the establishment of guilt.

JUDGMENT

1. The appellant has challenged his conviction and sentence recorded by the learned Special Judge under POCSO Act at Greater Mumbai on 20.11.2017 in POCSO Case No.94/2014. The appellant was convicted for commission of offence punishable under Section 354 of the Indian Penal Code read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'). He was sentenced to suffer RI for five years and to pay fine of Rs.5,000/- and in default to undergo RI for six months. He was granted benefit of set off under Section 428 of Cr.P.C.. The judgment mentions that the appellant was in custody from 13.12.2013 till 21.7.2014 and then was re-arrested on 26.7.2017 and was in custody till the date of the order.

2. Heard Shri Sushan Mhatre, learned counsel for the appellant and Shri Yogesh Dabke, learned APP for the State.

3. The prosecution case is that on 11.12.2013 at about 1.00 p.m., the appellant approached the victim who was about five years of age on that date. He touched and pinched her private parts and thus committed offence punishable under Section 8 of POCSO Act and under Section 354 of IPC. The FIR was lodged at the midnight. The appellant was apprehended by the people from the locality, was brought to the police station then he was arrested. The investigation was carried out and the charge-sheet was filed. During trial, the prosecution examined four witnesses : PW-1 was the victim herself, PW-2 was the victim's mother, PW-3 was the investigating officer and PW-4 was the Medical Officer.

4. PW-1 in her deposition has stated that she was studying in 4th standard. Her school timing was from 7.00 a.m. to 12.30 p.m. After returning from school she used to take lunch and thereafter used to go to Masjid for studying Arbi. She used to return home at around 4.30 p.m. Then she used to go out for playing with her friends and used to return home at 7.00 p.m. On the day of the incident she was playing outside her house with her friends. At that time, one uncle came near her and took her with him. He closed her eyes with his hands. He touched her private parts. He also pinched her private parts. She was having pain. She returned home and narrated the incident to her mother. Her mother took her to hospital. Then she was taken to the police station. The mother lodged her FIR. PW-1's statement was also recorded under Section 164 of Cr.P.C. by the learned Magistrate.

In the cross-examination, she deposed that her parents were keeping watch on her activities to protect her and that she was not kept alone by her mother. She did not know anything about the relations between her father and the appellant. She specifically denied the suggestion that she was deposing before the Court against the appellant at the instance of her mother. She also admitted that there was quarrel between the appellant and her father. However, she immediately clarified that the quarrel took place on account of the fact that the appellant had committed this offence. PW-1 then identified the appellant before the Court.

5. PW-2 is the mother of the victim. She had narrated the incident that on the date of the incident her daughter returned home crying. On enquiries she told her about the incident. PW-2 then saw her private part which was reddish in colour. In the evening she along with her daughter - the victim had gone to purchase vegetables, while they were returning they saw that the appellant was drinking alcohol. At that time the victim showed the appellant as the person who had committed that offence. PW-2's husband then with the help of neighbours enquired with the appellant. The people in the vicinity gathered there and assaulted the appellant for committing that act. The police then came there and took the appellant with them. PW-2 also went to the police station and lodged her FIR, which was produced on record at Exhibit-13. The victim was sent for medical examination.

In the cross-examination, hardly anything of consequence was