JUDGMENT : (N.B. Suryawanshi, J.) : Appellant/accused is convicted in Sessions Trial No.70.2017 by learned Special Court, Akola under Section 376[2][f] of the Indian Penal Code and under Section 5 punishable under Section 6 of the Protection of Children from Sexual Offences Act (POCSO), and is sentenced to suffer imprisonment for life and to pay fine of Rs.10,000/-, and under Sections 504 and 506 of the Indian Penal Code and sentenced to suffer imprisonment for two years on each count and to pay fine of Rs.2000/-. By this appeal, he challenges his conviction. 2. Prosecution case in short is that, on 10.01.2017, informant – mother of the victim lodged report with Borgaon Manju Police Station alleging that on 09.01.2017 her victim daughter went to Anganwadi and returned from there between 2 to 2.30 p.m. She went out for playing and returned at 3 p.m. At that time she was having a pouch of borkut and 2 coins of Rs.2/- each. Informant enquired with the victim on which she told that . Informant thought that the amount might have been given by her father-in-law. At 5 p.m. in the evening, while the informant was sitting infront of her house, victim came there and sat on her lap and was shacking her waist. On that informant asked her as to why she and asked him as to why he has given Rs.5/- to victim and what has he done with her. The accused abused her and threatened to kill her, if she disclose anything to any one. She therefore returned to her house. In the night she did not disclose anything to her husband, thinking that he will quarrel. In the morning, informant narrated the incident to her husband. Her husband told the community people of the accused to give understanding to him and left for his work. The informant however went to the police station and lodged police report (Exh.18), which was registered at Crime No.7/2017 dated 10.01.2017 for offence under Sections 376[2][f], 504, 506 of the Indian Penal Code and Sections 5 and 6 of the Protection of Children from Sexual Offences Act. (‘POCSO Act’ for short) On completion of investigation, charge sheet came to be filed. Accused was charged under Section 376[2][f], 504, 506 of the Indian Penal Code and under Section 5, punishable under Section 6 of the POCSO Act. Accused denied the charge. (‘POCSO Act’ for short) On completion of investigation, charge sheet came to be filed. Accused was charged under Section 376[2][f], 504, 506 of the Indian Penal Code and under Section 5, punishable under Section 6 of the POCSO Act. Accused denied the charge. In support of its case, prosecution examined 9 witnesses. The defence of accused was of false implication and that he was implicated in the present crime at the instance of Prashant Nage (P.W.3) due to political rivalry. In support of his defence, appellant has examined 2 witnesses. The trial Court has convicted the appellant/accused as aforesaid, hence, this appeal. 3. Heard learned Counsel for the appellant/accused and learned A.P.P. for respondent – State. Learned Counsel for appellant has assailed the impugned judgment of conviction by submitting that there is delay in lodging first information report and also in conducting medical examination of the victim. According to him, due to village politics, at the instance of P.W.3, accused is falsely implicated in the present crime. He submits that if at all the incident had really taken place, father of the victim P.W.4 would not have taken it lightly, as it is clear from his evidence that he just told his wife i.e. mother of victim, that he will tell the community people of the accused to give him understanding and left for work. If at all the incident as alleged by the prosecution has really taken place, his reaction would not have been such. He submits that the medical evidence does not support prosecution case. No medical examination of accused was done to ascertain whether he was capable of committing alleged offence. He submits that the accused was 75 years of age at the time of alleged incident, therefore, he was not capable of doing the alleged act, as such he is entitled for benefit of doubt. He further submits that the trial Court has not properly appreciated the evidence and erroneously convicted appellant/ accused, hence, the impugned judgment is liable to be quashed and set aside, and appellant/accused is entitled for acquittal. 4. Per contra, learned Additional Public Prosecutor supported the judgment and order of conviction. He submits that the fact that victim is minor is not disputed by the defence. According to him there is sufficient medical evidence on record to prove that incident as alleged by the prosecution has taken place. 4. Per contra, learned Additional Public Prosecutor supported the judgment and order of conviction. He submits that the fact that victim is minor is not disputed by the defence. According to him there is sufficient medical evidence on record to prove that incident as alleged by the prosecution has taken place. The scientific evidence in the form of DNA report is also placed on record. Evidence of victim, her mother and father is cogent and reliable, therefore, conviction recorded by the trial Court is proper. He submits that there is no merit in the appeal and the same is liable to be dismissed. 5. With the assistance of learned Counsel for the appellant/accused and learned A.P.P. we have perused the record. 6. Prosecution has proved the incident by examining the victim (P.W.2). At the time of incident, she was 5 years old. She deposed before the Court that at the time of incident she was going to Anganwadi. While she was playing on platform of her sister, at that 7. In cross-examination, she has stated that whatever her parents asked her to speak only that much she is required to speak. She came there along with her mother. Prashant Nage is her paternal uncle. He had also come to police station. Many people of village had come there. She denied that report was lodged by her paternal uncle. She further stated that details were narrated by her paternal uncle and her mother signed it. She denied that in the Court she was tutored by her mother and government pleader. She admitted that she met government pleader and he told her to depose. She denied that her uncle Prashant Nage always visits her house. She did not know that everybody listens to him. 8. Mother of the victim is examined as P.W.1. She has lodged the report (Exh.18) and first information report (Exh.19) is registered on the basis of the same. She deposed that incident took place in the month of January, 2017. Her victim daughter was studying in Anganwadi. She used to go to School at 11 a.m. in the morning and return at 2 p.m. in the afternoon. On 09.01.2017, she returned from school at 2 p.m. Her husband had gone for work on vehicle. Her son had gone to school and she was alone in the house. Her victim daughter was studying in Anganwadi. She used to go to School at 11 a.m. in the morning and return at 2 p.m. in the afternoon. On 09.01.2017, she returned from school at 2 p.m. Her husband had gone for work on vehicle. Her son had gone to school and she was alone in the house. After returning, victim kept her bag and went out for playing with girls. She came back home in between 2.30 to 3 p.m. At that time, she was having one packet of borkut and two coins. When she enquired with her as to who had given her money, she told that ‘abajine dile’. She thought that it was given by her father-in-law. Thereafter again victim went out for playing. She sat outside the house. At about 5 p.m. victim came home and sat on her lap and started shaking her waist, when she asked victim as to why she was shacking her waist, she told that “Shaharukhche abajine asech kele”. She also told that Shaharukh’s grandfather removed her slack and his payjama and put the tail in her urine place. She told that her urine place was paining, and when informant checked, it was red in colour, she got frightened. Victim told her that Shaharuk’s grandfather gave Rs.5/- and she took packet of borkut of Re.1/- and she was having 2 coins of Rs.2/- each. Immediately she took victim to the house of Shaharukh’s grandfather and asked him as to why he had given Rs.5/- to the victim and what did he do with the victim. Victim started crying after seeing him. He threatened her by saying that he would kill her and also told her to do what ever she wanted to do. She came back home. Her husband came at night at about 9 p.m. she did not narrate anything to her husband at night as he was in the habit of consuming liquor and then he would quarrel with Shaharukh’s grandfather. In the morning at about 7 a.m. she narrated the incident to her husband. Her husband P.W.4, narrated the incident to the people of Shaharukh’s grandfather’s community and asked them to give understanding to him. Thereafter he went for the work. She thought that the incident which had taken place with the victim should not happen with any body else. In the morning at about 7 a.m. she narrated the incident to her husband. Her husband P.W.4, narrated the incident to the people of Shaharukh’s grandfather’s community and asked them to give understanding to him. Thereafter he went for the work. She thought that the incident which had taken place with the victim should not happen with any body else. She then narrated the incident to her community people in the village and decided to lodge report. Accordingly she went and lodged report. 9. In cross-examination she deposed that victim used to call ‘abaji’ to anyone. Even victim use to call her father-in-law as ‘abaji’. Omission that on seeing accused victim started crying was brought on record in her cross-examination. 10. Victim’s father is examined as P.W.4. He has corroborated the testimony of victim and her mother. 11. Prosecution by examining P.W.5 Dr.Prachi Koranne, Medical Officer has proved medical report of victim at Exh.28. Medical Officer has deposed that on 10.01.2017 she examined the victim and issued medical certificate Exh.28. Victim complained of pain at her private part. On examining the private part, she noticed redness over the inner aspect of labia minora on both sides. In cross, she has stated that history was narrated by mother of victim. 12. P.W.8 – Vinod Vasu, Village Development Officer has proved birth certificate (Exh.36) of victim. 13. By examining P.W. 3- Prashant Nage, panchnama of seizure of clothes of victim (Exh.20) was proved. Panchnama of seizure of clothes of accused was proved in the evidence of P.W.7 –Rajique Patel. 14. Chemical Analyzer’s report in respect of clothes of victim and accused shows that there was semen stain on school skirt (ex.4) of the victim. So also human blood stain was detected on her nicker (ex.6). 15. D.N.A. report (Exh.47) from Regional Forensic Science Laboratory is proved on record in the evidence of P.W.9 – Investigating Officer, PSI Yuvraj Uike. It is mentioned in opinion column No.1 as - “Mixed DNA profile obtained from semen detected on ex.4 School Skirt in BAM178/17 contains DNA profile of Abdul Lalmiya Deshmukh in BAM179/17 and female DNA profile obtained from Ex.3 Vuval Swab of Arpita Satish Bore in BAM1870/17” 16. It is clear from the evidence brought on record by the prosecution that the incident is proved by prosecution by examining victim – P.W.2, her mother – P.W.1 and her father – P.W.4. It is clear from the evidence brought on record by the prosecution that the incident is proved by prosecution by examining victim – P.W.2, her mother – P.W.1 and her father – P.W.4. Their evidence is consistent and corroborates each other and nothing favourable to the defence can be brought on record in their cross examination. Medical evidence further supports prosecution case as the Medical Officer (P.W.5) on examination of private part of victim has found redness over inner aspect of labia minora on both side. Victim was examined on the next day of the incident, therefore, there is no merit in the submission of the accused that there is delay in conducting medical examination of the victim. The argument of the defence that the first information report was lodged belatedly is also liable to be rejected as the explanation is given by P.W.1 in her deposition that she felt that what ever was suffered by her daughter – victim, should not be suffered by others and therefore, she decided to lodge first information report against the accused. There is no such enormous delay to disbelieve her version. The accused is identified by the victim in the Court also and there was no reason for the prosecution witness to falsely implicate the accused. Therefore, there is no merit in the submission of the defence that he was falsely implicated on the basis of mistaken identity. 17. The defence has examined two witnesses. D.W.1 Tahirabi is wife of accused. It is tried to be brought on record that accused has difficulty in vision and he is often sick and has giddiness. Since last 10-12 years they had no physical relations as husband and wife. At the time of urination and passing of stool, she has to sit in front of him. She denied that on the date of incident she had gone to watch T.V. at her neighborhood. Mohd.Sabir Abdul Aziz (D.W.2) is son of the accused, he has stated that name of his son is Mohd. Sharik and he is known by that name. 18. From the evidence brought on record, prosecution has proved that accused has committed aggravated penetrative sexual assault on the victim. The trial Court has properly appreciated the evidence and has rightly convicted the appellant/accused. We find no merit in the appeal, the same is therefore, dismissed. 19. Sharik and he is known by that name. 18. From the evidence brought on record, prosecution has proved that accused has committed aggravated penetrative sexual assault on the victim. The trial Court has properly appreciated the evidence and has rightly convicted the appellant/accused. We find no merit in the appeal, the same is therefore, dismissed. 19. Professional fees of the learned Counsel appointed for the appellant/accused be paid as per Rules, within a period of 4 weeks from the date of uploading of this order.