The court upheld the conviction based on the victim's credible testimony and medical evidence, affirming that under the POCSO Act, the burden shifts to the accused to rebut presumption of guilt.

JUDGMENT :

R.M. JOSHI, J.

1. This appeal takes exception to the judgment and order dated 4th May 2023 passed in POCSO Special Case No.872 of 2020 convicting the appellant/accused for the offences punishable under Sections 376 and 354-A of the Indian Penal Code 1860 (for short " IPC ") and Sections 6 , 10 and 12 of Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act") and sentenced him to suffer rigorous imprisonment of 20 years with fine.

2. It is the case of prosecution that the victim aged 5 years is neighbour of the accused. When the victim went to the house of the accused to play with his daughter, on 3^rd August 2020, she told her mother/informant about accused having touched her chest, cheeks and lips and also kissed her on her lips. The informant disclosed this fact to the mother of the accused and asked her to give understanding to the accused. On 17^th August 2020, the victim disclosed to her paternal uncle that the accused touched her inappropriately and also put his finger in her private part. Once again, the said fact was disclosed to the mother of the accused. On having received such information from the victim, the informant lodged report on 18^th August 2020 and crime to be registered vide C.R.No.438 of 2020 against the accused.

3. During the course of investigation, the victim was sent for medical examination, so also her statement was recorded by the Magistrate under Section 164 of the Cr.PC. Statements of other witnesses were recorded by police. Seized muddemal was sent to CA for chemical examination. On completion of investigation, charge-sheet was filed before the competent Court.

4. Learned Trial Court framed charge against the accused and since he abjured the charge, prosecution examined nine witnesses :

PW1 Victim

PW2 Mother of victim/informant

PW3 Allauddin Gani Mohd Shaikh

PW4 Shekhar Narsaya Bitala

PW5 Paternal Uncle of the victim

PW6 API Amol Talekar

PW7 WAPI Geeta Solanki IO

PW8 Dr. Abhilasha Ganveer MO

PW9 Ghanshyam Patil

5. The incriminating circumstances brought on record by the prosecution were put to the accused in his statement under Section 313 of the Cr.PC.. The accused did not lead any evidence. Learned Trial Court found the evidence on record conclusive to prove the guilt of the accused and hence recorded judgment of conviction against him.

6. Learned counsel for the appellant/accused submits that the Trial Court has failed to take into consideration the overall circumstances, in which, the offence in question came to be recorded against the accused. It is his submission that there is admission given by the informant as well as the uncle of the victim indicating that the complaint was lodged by the mother of the accused first in time and in response thereto, after police came, the FIR was lodged by the informant in order to falsely implicate the accused in this crime. It is further argued that the evidence of victim as well as mother and uncle of the victim is not sufficient to prove the guilt of the accused for the reason that there are material inconsistencies in respect of the alleged dates of incident and the acts committed by the accused. It is submitted that though it is claimed that the incident which occurred on 3^rd August 2020 involves molestation of the victim, firstly, there is no complaint in this regard immediately and, secondly, the evidence of the victim is inconsistent with the same. It is argued that in the statement under Section 164 of the Cr.P.C., PW1 only states about the incident of finger penetration to have occurred along with molesta