Sonia Gokani, J.

This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'the Code'), arising from the judgment and order of conviction passed by the learned Special Judge (POCSO), City Civil & Sessions Court No. 20 ('trial Court', for short), Dated: 09.08.2017, in Special (POCSO) Case No. 61 of 2014.

2. The brief facts leading to the present appeal are as follows:

It is the case of the prosecution that on 04.06.2014, at around 03:30 a.m., wile the prosecutrix was sleeping with her parents, she suddenly woke up and shouted and her parents found her in disturbed condition crying. They also found the accused, who had pressed her breast and also had touched her private part. He was caught immediately and police was called and he was taken to Kagdapith Police Station, where, an FIR came to be lodged by he mother of prosecutrix, namely Nirmalaben W/o. Dharmendrabhai Leuva, being I-C.R. No. 86 of 2014.

On completion of the due investigation, charge-sheet came to be filed for the offence punishable under Section 354A of the Indian Penal Code, 1860, so also under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (in brief, 'POCSO Act'). The appellant did not plead guilty and desired to engage a private lawyer to represent him. However, later on, he was provided legal aid, on being requested.

2.1 The prosecution examined five witnesses in support of its case, including the prosecutrix and some of the documentary evidences were also duly brought on record. Thereafter, the further statement of the accused came to be recorded in detail, where, he denied all the charges emphatically and the offence that has been lodged against him. According to him, he is innocent and has not committed any offence since there was a dispute of thoroughfare, he had been falsely involved.

2.2 The trial Court after availing opportunity to both the sides, delivered the judgment and order, as mentioned in Paragraph-1 herein above, after perusing the entire material on record and thereby, held the accused guilty of the charges framed against him, which has led the appellant to approach this Court by way of present appeal.

3. It is the say of the learned Advocate, Mr. Barod, appearing in legal-aid for the appellant-convict that the trial Court has committed a serious error in not appreciating the evidence on record, as per the well settled principles of criminal jurisprudence. The court also has not regarded the fact that only on legally reliable and un-impeachable evidence, the prosecution can succeed in proving the guilt of a person. The place of recovery and discovery panchnama also have not been proved, according to the appellant. It is, further, his say that there was no evidence of the molestation of the child and the ingredients of Section 354A of the IPC are also not successfully and satisfactorily proved. It is, further, urged that the punishment imposed by the trial Court is too harsh and disproportionate and the Court needs to strike a balance even if it finds the guilt of the appellant to have been proved.

3.1 During the course of argument, learned Advocate, Mr. Barod, kept the first informant present before this Court, who submitted that at the request of the mother of the appellant, who is a widow and has nobody else in the family to look after her, a request was made to reduce the sentence, if, this Court, otherwise, deems it fit.

4. Learned Advocate, Mr. P.V. Patadia, appearing for Respondent No.2-first informant urged that leniency can be shown in the instant case in awarding punishment as stated by the complainant. He, further, urged that the age of the prosecutrix also has been duly proved by the prosecution and she clearly falls within the definition of 'Child', as given under the POCSO Act, as her date of birth is 14.03.1998 and therefore, at the time of incident, she was about 16 years of age. It is not the case of defence that it was an act of consent and such kind of behaviour would p