JUDGMENT

Singh, J:- 1. The appellant has preferred this appeal under section 374 (2) of Cr.P.C. being aggrieved by the judgment dated 9.3.2015, passed by the Court of 5th Additional Sessions Judge, Gwalior, District Gwalior in Sessions Trial No.443/2014, whereby the appellant has been convicted for the offences punishable under section 5 r/w 6 of POCSO Act, 2012 and under section 376(2)(i) of IPC and in view of the provisions of section 42 of the POCSO Act, 2012, sentenced him under section 376(2)(i) of IPC as under:

2. The prosecution case in brief is that the complainant and appellant both are resident of Indra Colony, Gwalior and are neighbours. On 3.5.2014 at about 11:30 hours, when complainant's minor daughter prosecutrix, aged about 5 years, was playing with her friends Nisha and Akash in front of her house, appellant on the pretext of giving Chocolate, called her in his room, put off her clothes as well as his own clothes and gave his private part (Penis) in her hands and thereafter, inserted the same in her mouth. The prosecutrix felt like vomiting, then appellant put on her clothes, gave her an amount of Rs.2/-, saying not to tell the incident to anyone. The complainant after seeing her daughterprosecutrix scared, asked her the reason about the same, then on 6.5.2014, she told the complainant and her husband about the incident. Thereafter, on the same day at about 13:10 hours, complainant made an oral complaint to the police, on the basis of which, FIR (Ex. P/1) was lodged against the appellant at Police Station Bahodapur, Gwalior. On the same day, SI Anju Beg recorded the statements of the prosecutrix and her mother complianant. I/O ASI Dev Narayan Mishra went to the place of occurrence, prepared spot map (Ex. P/2), recorded the statements of Nisha and Akash alongwith other prosecution witnesses and arrested the appellant vide arrest memo (Ex. P/3) and sent him to Civil Hospital, Gwalior for medical examination. He get recorded the statements of the prosecutrix u/S 164 of Cr.P.C. and also get conducted her ossification test for determination of her age. After completion of investigation filed the chargesheet before the Court of JMFC Gwalior, who committed the case to the Court of Sessions Judge Gwalior, from where the case was made over to the the Court of 5th Additional Sessions Judge, Gwalior, District Gwalior for its trial.

3. Learned trial Court after considering the material prima facie available on record framed the charges section 5 r/w section 6, section 9 r/w section 10 of POCSO Act and under sections 376(2)(i) and 354-A of IPC against the appellant. The appellant abjured his guilt and pleaded not guilty.

4. Learned trial Court after appreciating the oral as well as documentary evidence available on record, convicted the appellant for the offences punishable under section 5 r/w section 6 of POCSO Act and under section 376(2)(i) of IPC and in view of the provisions of section 42 of POCSO Act, sentenced him as stated in para 1 of this judgment.

5. Being aggrieved by the said judgment of conviction and order of sentence, the appellant has preferred this appeal for setting aside the impugned judgment and discharging him from the aforesaid charges framed against him.

6. It is submitted by learned counsel for the appellant that the learned trial Court has committed an error while appreciating the evidence produced on record. Complainant (PW-1) admitted in her cross-examination that her daughter prosecutrix told her about the incident on the date of incident itself even then, the FIR was lodged after about three days of the incident without any satisfactory reason. The prosecutrix was found incapable to get her statements recorded and admittedly, complainant's sta