JUDGMENT :

Tirthankar Ghosh, J.

1. The present appeal has been preferred against the judgment and order of conviction and sentence dated 10.12.2019 passed by the learned Additional Sessions Judge-cum-Special Judge under POCSO Act, 2012, First Court, Sealdah, South 24 Parganas in connection with Special Case No.4(11) of 2019 wherein the learned trial court was pleased to convict the appellant under Section 10 of the POCSO Act and sentenced him to suffer imprisonment for five years and to pay fine of Rs.50,000/-, in default rigorous imprisonment for six months more.

2. Ultadanga Women Police Station Case No.12 dated 15.10.2019 was registered for investigation under Sections 8 and 12 of the POCSO Act, 2012. The fact of the case as is reflected from the formal FIR which was registered on the basis of complaint of ‘Y’ father of the victim girl aged about 7 years were to the effect that on 15.10.2019 at about 3.30 hrs. on the bank of canal near Jhupri, 14, Canal West Road, Kol-09 P.S. Narkeldanga the accused Mustakin with sexual intent touched the vagina of the minor girl ‘X’ and made the child exhibit his private parts.

3. On the basis of the aforesaid complaint, investigation commenced and on conclusion of investigation charge-sheet was submitted before the jurisdictional special court under Section 8/12 of the POCSO Act. Learned trial court after supply of the papers on which the prosecution intended to rely framed charges as follows:

“Firstly, That you on 15.10.2019 at about 3.30 hours near a khaldhar under Ultadanga PS committed aggravated sexual assault upon the minor victim and thereby committed an offence punishable u/sec.10 of POCSO Act and within the cognizance of this Court.”

4. The said charge was read over to the appellant to which he pleaded not guilty and claimed to be tried.

5. The prosecution in order to prove its case relied upon nine witnesses which included PW 1 Dr. Ankita Upadhay; PW 2 ‘X’ victim girl; PW 3 ‘Y’ father of the victim girl; PW 4 Suraj @ Kurban, a neighbour; PW 5 Amina Bibi, a neighbour; PW 6 Sekhar Roy, A.S.I. of Police,DD Lalbazar photography section; PW 7 Keya Sarkar, lady constable who took the victim to the Judicial Magistrate; PW 8 Riya Roy, lady constable who took the victim to R.G. Kar Hospital for treatment; PW 8 Ratna Sarkar, Investigating Officer of the case.

6. The prosecution in support of its case relied upon number of documents which will be dealt with in course of the discussion relating to the evidence which surfaced in course of the trial.

7. PW 1 is Dr. Ankita Upadhay who was attached to R.G. Kar Medical College and Hospital. In her deposition, she stated that she examined ‘X’ aged about 7 years who was produced before her by the Investigating Officer, namely, Ratna Sarkar. The history in the report reflected that on 15.10.2019 at about 3.30 hours accused Md. Mustakin with sexual intent touched the vagina of child and made her exhibit his private parts on the bank of canal near their residence. She further deposed that on examination she did not find any visible external injury, bite mark, no bleeding or any discharge from private parts, hymen was intact. She identified the medical report which was prepared and signed by her.

8. PW 2 is the victim girl ‘X’, she deposed that when she was sleeping outside her house when Mustakin gagged her face and took her near the Khaldhar under a tree and removed her pant but did nothing. The person named Suraj saved her and took her to their house, she informed the incident to her father who lodged the case. She was subsequently taken to doctor or to the hospital. She identified the accused Mustakin in court.

9. PW 3 ‘Y’ is the father of the victim girl who deposed that her daughter ‘X’ is aged about 7 years. On 15.10.2019 the incident took place at 03.00 a.m. in front of the Gate of Gas company within the jurisdiction of Narkeldanga Police Station. At the relevant time he was sleeping at his home and his daughter was also sleeping with her, when she had