JUDGMENT :

N.K. CHANDRAVANSHI, J.

1. As we proceed to hear the matter finally with the consent of learned counsel for both the parties, IA No. 01/2023, application for suspension of sentence and grant of bail stands disposed of.

2. This criminal appeal filed by the appellant-accused under Section 374(2) of the Code of Criminal Procedure, is directed against the impugned judgment of conviction and order of sentence dated 21.3.2022 passed by learned Additional Sessions Judge, (1st Fast Track Special Court), (POCSO ACT), Raipur, Distt. Raipur (CG) in Special Criminal Case No. 35/2019, whereby the appellant-accused has been convicted under Sections 363 and 376AB of the Indian Penal Code and Section 06 of the Protection of Children from Sexual Offences Act, 2012 and sentenced in the following manner:

It is pertinent to mention here that the though the appellant has also been convicted under Section 06 of the POCSO Act, but since punishment under Section 376AB of the IPC is greater in degree, therefore, in view of provisions of Section 42 of the POCSO Act, the appellant has been convicted only for offence under Section 376AB IPC. Further all the sentences have been directed to run concurrently.

3. Brief facts of the case are that on 25.01.2019, complainant along with his family members had gone to attend a marriage ceremony at Maruti Mangalam Bhavan. Gudiyari, Raipur. At about 10.30 pm, complainant’s four year old daughter (victim) was found missing from the marriage ceremony place. During search, at about 11.20 pm one unknown person came in front of the main gate of the marriage venue in a white Activa, dropped the victim there and fled away from the spot. At that time witnesses Sanjay Sharma and Vikas Joshi were present there. On seeing her, it was found that clothes of the victim was torn, button were broken and there was mud and dirt in her clothes. On being asked, the victim told that the accused/appellant picked her from Maruti Mangalam Bhavan and took her to nearby ground, made her to lie down in front of a big tree, tore her clothes, sexually assaulted her by touching her private parts and also sucked her private parts. Since the victim was under shock, the matter could not be reported to the police. On 16.02.2019 in another marriage ceremony, the accused tried to abduct another small girl, but due to alertness of persons present there, the accused could not succeed. When the complainant came to know about this incident, he along with his other family friends checked the CCTV installed in the Maruti Mangalam Bhawan and on the basis of CCTV footage, they found the presence of the accused/present appellant there. Thereafter on the basis of written complaint of the complainant/father of the victim, FIR has been lodged against the appellant/accused at Police Station Gudiyari. During the course of investigation, spot map was prepared, victim/prosecutrix was medically examined by Dr. Snehlata Sahu (PW-3) who opined probability of sexual assault upon the victim vide (Ex-P/7), the accused was arrested, on the basis of his memorandum statement, two wheeler Activa, one undergarment(chaddi), one diaper were seized, track suit of the appellant was seized from him. After downloaded CCTV footage of Maruti Mangalam Bhawan on 16.02.2019 pendrive (Article- A/8) was seized from Manager Tulsiram Agrawal vide Ex-P/13. Clothes of the victim were also seized vide seizure memo Ex-P/5, test identification parade of the appellant was conducted vide Ex-P/10 and P/14. After completion of investigation, charge sheet was filed under Section 363, 376 and 354B of t