ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

1. Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence dated 23.02.2018 passed by the learned Special Judge and Additional Sessions Judge, Bharuch in Special POCSO Case No. 01 of 2014 under the Protection of Children from Sexual Offences Act (POCSO Act), the appellant- accused has been convicted of offences punishable under Sections 363, 366, 376 of the Indian Penal Code, 1860 (IPC), and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The learned Sessions Court sentenced the appellant- accused to undergo imprisonment for life and fine of Rs. 10,000/- with default stipulation under Section 6 of the POCSO Act, along with separate sentences of rigorous imprisonment for three years each and fine of Rs. 2,000/- under Sections 363 and 366 of the IPC with default stipulations. All sentences were ordered to run concurrently. Consequently, the appellant-accused has preferred the present Criminal Appeal under Section 374 of the Code of Criminal Procedure, 1973 (CrPC), challenging the said conviction and sentence.

2. The brief facts that have given rise to the filing of the present appeal are comprehensively set out as follows:

2.1. The victim, who was a minor girl aged approximately 5 years and 4 months, residing with her parents in village Singpur, Taluka Ankleshwar, District Bharuch, made serious allegations against the appellant-accused. According to the complaint lodged by her mother Minakshiben, on 27.03.2014 during morning hours approximately between 8:00 a.m. to 9:00 a.m., while the complainant and her husband had gone to the farm to cut fodder, the accused who had come to construct stairs at the adjacent house of the victim's grandfather enticed the minor girl by offering to show her games on a mobile phone. He lifted her and took her to the terrace of the grandfather's house, took advantage of her being alone, removed her capri, inserted his saliva mixed finger into her private part, kissed her on the lips, and thereafter inserted his penis into her vagina and moved her up and down twice, thereby committing penetrative sexual assault. It was further alleged that even when the grandmother shouted, he did not leave her, and only when the grandfather shouted loudly, he released her and threatened her not to tell anyone. The incident allegedly occurred twice at that time. After the traumatic incident, the victim returned home, and the next morning 28.03.2014 disclosed the entire incident to her mother while she was being called near the house. The mother, after verifying details from her father-in-law and Naranbhai from whom the labourers had come, lodged a complaint at Ankleshwar Rural Police Station, which was registered as the relevant FIR.

2.2. Following the registration of the FIR, a comprehensive investigation ensued under the supervision of the investigating authorities. The investigation included recording detailed statements of the victim, her mother, her grandfather, and other relevant witnesses; preparation of panchnamas of the crime scene terrace of grandfather's house and seizure of material evidence including the clothes worn by the victim at the time of the incident white frock and black red capri and the mobile phone shown by the accused; conducting medical examination of the victim at Bharuch Civil Hospital and thereafter at SSG Hospital, Vadodara revealing redness on labia majora, swelling, and signs consistent with sexual assault, medical examination of the accused found capable of sexual intercourse, effecting the arrest of the accused, and forwarding collected samples to the FSL, Surat for detailed scientific analysis and examination. Upon finding sufficient prima facie evidence against the accused during the course of investigation, a chargesheet was duly filed against him under the aforementioned sections of law. Since the case was triable by the Special