ORDER :

(Naveen Srivastava, J.)

1. The present criminal appeal under Section 374 (2) of Cr.P.C. has been filed against the judgment and order dated 04.05.2016 passed by Special Judge (POCSO)/Additional Sessions Judge, Etawah in Sessions Trial/Special Case No. 26 of 2014 (State Vs. Sheetal) convicting the appellant Sheetal to ten year rigorous imprisonment under Section 376 (2) (Jha) I.P.C. with fine of Rs. 10,000/- Further, accused-appellant Sheetal has been convicted under Section 506 I.P.C. and sentenced to two years imprisonment. Accused-appellant also convicted under Section 4 POCSO Act and sentenced to seven years imprisonment with fine of Rs. 5,000/-.

2. In brief the prosecution case is as follows:-

On 25.06.2021, the victim/prosecutrix aged about 5 years, was playing outside of her house, at about 09:30 am accused induced her and committed rape on her in the field of Kushal Pal. The victim has reported the incident to one Man Singh. Man Singh and Robbin brought the victim to her house, where she narrated everything to her parents. Blood was also found on the underwear of the victim.

3. The matter was reported to the police and on the basis of written complaint of the informant Baburam (PW2), F.I.R. on 25.06.2014 at about 10:30 am was registered.

4. PW5 Chandraprakash Bhatt, Investigating officer took up the investigation, victim was sent for medical examination. On conclusion of the investigation, Police submitted the charge sheet against the accused under Sections 376 (2) (Jha), 506 I.P.C. and under Section 4 POCSO Act.

5. After framing of charge against accused under Sections 376 (2) (Jha), 506 I.P.C. & Section 4 POCSO Act, he was put for trial. Trial was concluded after recording the statements as many as seven witnesses.

6. PW1 is the victim herself.

7. PW2 is the informant and grand-father of the victim.

8. PW3 is the doctor who medically examined the victim on 25.06.2014 and furnished a report Ex. Ka2 and Ka3. PW4 is the Investigating Officer who submitted the charge sheet in this case, PW6 is the uncle of the victim and PW7 is the constable Moharrir who reduced the contents of the F.I.R. in G.D.

9. Accused-appellant in his statement recorded under Section 313 Cr.P.C. denied the occurrence and alleged false implication and in support thereof produced DW1 and DW2. They also denied the occurrence having been taken place.

10. Trial court after evaluating the evidence on record, convicted and sentenced the accused-appellant as above.

11. Heard Sri Vishwanath Vishwakarma, learned counsel for the appellant and Dr. S.B. Maurya assisted by Sri Ansuman Singh, learned A.G.A. for the State and perused the record.

12. Learned counsel for the appellant in support of appeal contended that there are contradictions in the statements of the victim, her grandfather (PW2) and PW6. It is also submitted that medical evidence on record does not corroborate the charges against the accused-appellant. He also contended that hymen of the prosecutrix was found to be intact and no live spermatozoa was found on the person of the victim, so it cannot be said that offence of rape was committed on her.

13. Learned counsel for the appellant canvassed that prosecution have failed to establish the necessary ingredients for the offence under the POCSO Act. The Special Court could not have relied on any presumption available under the provisions of POCSO Act especially ignoring the defence that accused-appellant has been falsely implicated in the present case because of certain property dispute.

14. Learned A.G.A. in