Criminal Appeal No. 709 of 2022 · Bombaybench High Court
Case Details
2024:BHC-AUG:9916 {1} CRI APPEAL 709 OF 2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 709 OF 2022.Amol @ Ratnakar S/o. Baburao PrayagAge: 50 years, Occupation : Labourer,Working in Sugare Provisions Store / Sugare Kirana Stores,Resident of Somwanshi Nagar,Near Hanuman Mandir, Ambajogai Road,Latur. Tal & Dist.Latur,Maharashtra 431 512.Aadhaar No.7220 1550 7868(Presently lodged at Harsool Central Jail, A’bad)..Appellant(Ori. Accused) Versus1)The State of MaharashtraThrough : the Police Inspector,Investigating Officer, M.I.D.C. Police Station,Tal. & District : Latur.(C.R.No.33/2017, M.I.D.C. Police Station, Dist.Latur)2)XYZ ..Respondents…..Advocate for Appellant : Mr. Abhaykumar Dilip OstwalAPP for Respondent no.1 : Mr.S.M.Ganachari Advocate for Respondent no.2 : Mr.Vinod D. Godbharle ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 30 APRIL, 2024 PRONOUNCED ON : 08 MAY, 2024 JUDGMENT :- 1. Aggrieved by the judgment and order passed by the learned {2} CRI APPEAL 709 OF 2022Extra Joint District Judge and Additional Sessions Judge Latur, inSpecial Case (POCSO) No.11 of 2017 dated 05-08-2022, therebyconvicting appellant herein for offence under Sections 376 (i) and (j)of the Indian Penal Code (IPC) read with Sections 4 and 6 of theProtection of Children from Sexual Offences Act (POCSO Act),original accused / convict has preferred instant appeal. FACTS LEADING TO THE TRIAL 2. Victim, aged three and half years, went to play at her friend’shouse. Accused, father of her such friend, lifted victim, took her to aroom, made her lie on the cot. He removed her clothes. Initially, heinserted finger in her private part and then himself got undressedand then inserted his male organ in her vagina. Victim came home and complained informant, her mother,regarding pain at urinal place and further informed the above act ofaccused. After arrival of husband of informant late night, he was alsoinformed and next day mother lodged report.Investigation of crime was entrusted to PW7 Suvarna Umap(PSI), who after gathering evidence, chargesheeted accused forcommission of offence under Sections 376(i) and (j) of the IPC andunder Sections 4, 5(m) and 6 of the POCSO Act.
Legal Reasoning
{3} CRI APPEAL 709 OF 2022On trial, learned Extra Joint District Judge and AdditionalSessions Judge, Latur held charges proved under Section 376(i) and(j) of the IPC read with Sections 4 and 6 of the POCSO Act and byjudgment and order dated 05-08-2022, sentenced accused to sufferrigorous imprisonment for ten years and to pay fine. Correctness, legality and maintainability of said judgment isnow questioned before this Court by filing instant appeal. SUBMISSIONSOn behalf of appellant :3. Pleading innocence and false implication due to previousanimosity, learned counsel for the appellant submitted thatprosecution has also miserably failed to establish charges beyondreasonable doubt. According to him, there is no convincing or legallyacceptable evidence about very visit of victim to the house ofaccused. That, similarly, there is no independent evidencecorroborating version of PW2 mother of victim, who according tohim, has allegedly received information from child. According tohim, father of victim has not been examined by prosecution. Evenneighbours of both informant as well as accused are not examined tosubstantiate the charges and hence, according to him, there is no {4} CRI APPEAL 709 OF 2022corroboration from independent corners. 4.He forcefully submitted that version of victim in substantiveevidence does not tally with the version of informant mother. Hepointed out that child merely speaks of insertion of finger butinformant, according to him, went overboard and deposed aboutpenetration of male organ, which was never deposed by victimherself. Consequently, he submits that informant has apparentlyimprovized her version and her testimony is therefore unsafe forreliance. He also pointed out that evidence of informant is full ofmaterial omissions and material contradictions.5.He next submitted that exactly at what time incident tookplace has also not proved by prosecution. He pointed out that, inspiteof informant claiming to have learnt from her daughter in the daytime itself, there is no immediate reporting or even in the night afterimmediate arrival of father of victim. He submits that rathercomplaint is lodged on next day and so he alleges false implicationon afterthought delayed complaint. He also pointed out that there isno immediate medical examination. 6.According to learned Counsel for accused, in view of charges {5} CRI APPEAL 709 OF 2022under the POCSO Act, it was incumbent upon prosecution to firstestablish age of the victim. He submitted that here neither mothergave date of birth of victim nor there is any documentary evidence insupport of age of victim and therefore, he submits that charges underthe POCSO Act are without any foundation. 7.It is his further submission that even scene of occurrence is notproved. He pointed out that spot panchanama is drawn at theinstance of father of victim, who himself was not in the house tilllate night and had only received information from his wife informant.Moreover, father is not made to step in the witness box and therefore,learned Counsel doubted the very spot panchanama also. He invitedattention of the Court to testimony of PW1 Nagnath, panch witnessand would submit that house was in locked condition and if spot issaid to be shown by father of victim, according to learned Counsel,how father had keys to open house of appellant. He also pointed outthat panch witness in cross-examination admitted to be unaware ofownership of house and regarding not seeing documents ofownership of the house. For all above reasons, learned Counselquestions the credibility and veracity of the prosecution versionabout occurrence taking place in the house of appellant. {6} CRI APPEAL 709 OF 20228.Attacking prosecution version and findings recorded by learnedtrial Court, he would submit that medical findings though are aboutinjuries, the age of injuries are reported to be four days old and soaccording to him, the same cannot be connected with incident inquestion. He pointed out that there were no fresh injuries or anysigns of bleeding or even inflammation, thereby creating doubt aboutinserting finger or male organ. According to him, infact prosecutionclaims that victim was examined very next day morning but medicalwitness has not categorically connected findings to the occurrence ofprevious day. He would strenuously submit that immediately afterexamination, opinion was reserved and opinion is issued after severalmonths by the medical expert and is apparently brought at the timeof deposition. Therefore, according to him, creation of medical papers to suitthe prosecution cannot also be ruled out. He also emphasized thatmedical opinion, not being concrete about rape, benefit has to begiven to the accused, as according to him, medical evidence, which iscrucial in cases of such nature, is itself not fully supportingprosecution version. {7} CRI APPEAL 709 OF 20229.He also invited attention of the Court to the forensic evidenceand submitted that the same is negative. That even Medical Expertcategorically admitted in cross-examination about CA report to be notsupporting and for all above reasons, he submits that even scientificevidence belies the prosecution story. 10.Lastly, he submitted that material witnesses are not examinedby prosecution like lady to whose house informant went that day,Ghorpade, another lady, whom informant claim to have metimmediately, very Doctor, who actually examined victim, neighboursand other siblings of the victim. On the contrary, he pointed out thataccused had put up a plea of alibi and same is substantiated andproved by adducing four defence witnesses including very daughterof appellant. For all above reasons, he prays to allow the appeal by settingaside the impugned judgment. On behalf of State and Informant :11.In answer to above and staunchly opposing the appeal, learnedAPP as well as learned Counsel for informant submitted thatprosecution has proved its case beyond reasonable doubt and thattoo by adducing overwhelming and quality evidence. It is pointed {8} CRI APPEAL 709 OF 2022out that victim, a three and half years old girl, herself stepped in thewitness box and narrated the deeds of appellant, who is father of herfriend, to whose house child went to play. It is pointed out thatvictim returned home and made complaint to informant mother.That her maternal aunt was also available there. That they both hadheard complaint made by the child. It is pointed out that father ofvictim was not in the house and informant was waiting for his arrival.That he reached late night and was duly informed. It being nighttime, they did not approach Police immediately. Learned APPsubmitted that in cases of such nature, parents hesitate to reportimmediately. But according to him, very next day morning, they hadapproached Police and reported the occurrence. That mother of thevictim has lodged report. She has deposed what was informed by herdaughter and her evidence has remained unshaken on crucialaspects. That victim was referred for medical examination. LearnedAPP submitted that in trial Court, there was no dispute raisedregarding age of victim. He pointed out that, when medical evidencesuggested sexual assault, considering the age of the victim, provisionsof the POCSO Act were automatically attracted and accused wasaccordingly indicted for said provisions also. {9} CRI APPEAL 709 OF 202212.Learned APP as well as learned Counsel for victim took thisCourt through the testimonies of victim and her mother i.e.informant and they would point out that act of accused has beenconsistently stated by both of them. It is further pointed out thatmaternal aunt, who was present, has also deposed in witness box.That medical expert, who examined victim, has issued clear opinion.That medical expert noticed injuries and the same are recorded andnoted along with history. Therefore, according to them, there issufficient corroboration from medical evidence. Consequently,charges are cogently and firmly proved. According to them, learnedtrial Court correctly appreciated the evidence. Both learned APP aswell as learned Counsel representing victim supported the findingsand conclusion of the trial Court. It is submitted that there is noillegality or perversity in the impugned Judgment and order and so itis prayed that there being no merit in the appeal, same deserves to bedismissed. EVIDENCE ON BEHALF OF PROSECUTION IN TRIAL COURT13.In support of its case, prosecution has adduced evidence of inall seven witnesses and sum and substance of their evidence is asunder : {10} CRI APPEAL 709 OF 2022PW1 Nagnath Janardhan Panchal, Pancha to spot panchanamanarrated about accompanying MIDC Police to the house of appellant.He gave description of the room and stated about seizure of bedsheet. He identified panchanama exh.38.PW2 is the mother of victim and informant. Sum andsubstance of her evidence is that when she returned after attendingsocial function, victim, her daughter told that she is unable to passurine. She examined her private part and noticed swelling as well aswhite discharge. Her daughter told that she went to the house ofaccused to play with girls. Her victim daughter told that accusedlifted her, took her into the house, made her lie on the cot, removedher pant, inserted finger in private part, then removed his pant,pressed her mouth and inserted his penis in the vagina of victim. Herhusband returned around at around 10:30 p.m. to 11:00 p.m. and inthe morning of next day, they approached Police.PW3 Maternal aunt of victim stated that she knew accused.That day at 05:00 p.m., victim came to the house and complainedabout pain in stomach and in private part. Mother of victim hadbeen to attend function. After arrival of mother, victim told thataccused removed her knicker, inserted finger in vagina, made victim {11} CRI APPEAL 709 OF 2022lie on the cot, removed his clothes, pressed her mouth and insertedhis private part in her private part. PW4 Gangasagar Ramkisan Bandre is LPC, who took victim formedical examination.PW5 Dr.Rahul Bhagwan Umbare is Medical Officer, who in thecompany of two other Doctors, examined victim, noted findings ofinjuries, collected samples and issued opinion exh.62. PW6 is Victim, who deposed at exh.65 that she was eatingcoconut dry fruits on steps infront of house of father of her friend.Her friend’s father lifted and took her in the house, asked her toremove pant. When she shouted, he shut her mouth, inserted hisfinger. Trial Court noted “she has shown place where he inserted hisfinger”. She further deposed that he inserted his finger in the placeof passing urine. She came home, asked her mother to see her privatepart. Mother saw it. Her maternal aunt came. She told same factsto her. PW7 Suvarna Shrawan Umap (PSI) is the Investigating Officer. {12} CRI APPEAL 709 OF 202214.Accused has also adduced evidence of four witnesses insupport of his defence.DW1 Rajesh Maheshwar Sugare is Kirana shop owner whereaccused was working. DW2 Avantika Ratnakar Prayag is daughter of accused.DW3 Ashwini Amol Prayag is wife of accused. DW4 Narsing Adinath Kasale is Supervisor of MatoshriVradhashram where DW3 wife of accused is working. ANALYSISQuestion 1 : Whether prosecution established victim to be a ‘minor’ ? 15.Though learned Counsel for the appellant tried to questionprosecution evidence on age of victim, apparently and evidently PW2mother of victim / informant deposed that victim daughter was bornin 2013, but she is unable to give exact date of birth. In cross-examination, she answered that other daughters, whose names aregiven in paragraph 14 were of 8 and 7 years respectively. There is nosuggestion to informant mother in cross-examination, for namesake,that victim is not three and half years of age. Resultantly, there is noserious cross-examination of prosecution witnesses like PW2 motherof victim on the point of age. PW5 Dr.Umbare, who is examined at {13} CRI APPEAL 709 OF 2022exh.55 and is an independent witness, deposed that he examinedvictim, who is three and half years old. On meticulous analysis ofmedical expert’s cross-examination, it appears that there is nosuggestion that the age given in examination-in-chief is false. Entirecross-examination of medical expert is on medical findings onexamination and resultantly, there is no effective cross-examinationeven of medical expert on the point of age of victim. Taking abovematerial into consideration, there is no force in the argumentadvanced before this Court that prosecution is unsuccessful inestablishing that victim was a ‘minor’. Trial Court, which recorded evidence, has categorically put uppreliminary questions to the victim to ascertain her competence tounderstand questions and give answers. On the strength of suchmaterial, there is no hesitation to hold that victim is definitely shownto be ‘minor’. Question 2 :Whether prosecution has proved the charges beyondreasonable doubt ?16.Charge at exh.9 is for commission of offence under Sections376(i) and (j) of the IPC and under Section 4, 5(m) and 6 of thePOCSO Act. {14} CRI APPEAL 709 OF 2022Therefore, in the light of above charge, admittedly, crucialevidence is that of PW6 victim, PW2 mother of victim / informantand PW5 Dr.Umbare, Medical Expert. Fate of the prosecution storyentirely rests on above witnesses and their testimonies. PW2 Mother of victim / informant’s testimony : 17.PW2 mother of victim / informant, in her evidence at exh.42deposed that accused is their neighbour. Incident took place on29-01-2017. She gave name of daughter of accused and stated thather daughters went to the house of accused to play with his daughterand they were playing outside the house near the stairs. Herdaughter told her that accused lifted victim, took in the house, madeher lie on the cot, removed her garments and inserted finger into herprivate part. Then he removed his pant and pressed mouth of child.Then accused entered his penis into vagina of victim. In paragraph 4, she further stated that she had been to attendthe function to the house of Tandale. When she returned home,victim told incident to her and complained that she is unable to passurine. That time victim informed about above incident happenedwith her. Then, when husband of this witness reached home at 10:30p.m., she informed him and on the next day, they approached Police. {15} CRI APPEAL 709 OF 2022Informant is subjected to extensive cross-examination whereinshe has admitted that she is illiterate. There are questions aboutgeographical directions and surroundings of the house. She hasgiven names of friends of her daughter. In paragraph 15, sheanswered that daughters of accused did not visit their house but shedenied that there was any quarrel between herself and mother offriend of her daughter. In further cross-examination, she gave nameof elder daughter of accused and stated that she used to talk withher. She denied that a boy namely Pappu used to come to her houseand elder daughter of accused was married to said boy. Rest is alldenial.PW6 Victim’s testimony : 18.She is examined at exh.65. Substantive evidence of the victimin the trial Court is as under : “On the day of incident, I was eating coconut dry fruitson steps infront of house of father of Radhika. Father ofRadhika lifted and took me in house. He said me to remove mypant. I shouted as “Mummi-Mummi”. At that time, he shut mymouth. He has inserted his finger. She has shown place wherehe inserted his finger.”Her evidence recorded at exh.65 shows that learned trial Courthas noted that the victim was pointing her finger to the private part {16} CRI APPEAL 709 OF 2022and stating that accused inserted his finger. She further deposedthat he inserted his finger in the place of passing urine. She camehome and asked her mother to see her private part. Mother saw it.Her maternal aunt also came. Fact was also told to her. Child is also subjected to extensive cross-examination.Relevant cross-examination is in paragraph 4, because in paragraph 3she is questioned about school, its timing, friends, games loved andplayed by her, by what name she was addressed by her mother. Inparagraph 4, the child flatly denied that she is deposing as hermother told her to give evidence. She specifically answered that onthat day there was “Haldi-Kunku”. She answered that when she wentto her home, at that time, her mother was present for some time.She answered that aunt was also residing there. She has denied thatshe suffered injuries to leg and hand while playing. That there wasno scolding to her or other friend. She flatly denied that she did notgo to the house of her friend. She has specifically stated that thereare two rooms in the house of her friend and house of accused isfacing towards the road whereas bed room and kitchen are in thebackside. In paragraph 6, there is denial. In paragraph 7, sheadmitted that six months prior to the incident, her mother andmother of her friend stopped visiting and talking with each other. {17} CRI APPEAL 709 OF 2022Rest is all denial. Medical Expert’s evidence : 19.If we visit evidence of PW5 Dr.Umbare, who had occasion tophysically examine victim, he is found to be deposing that on thatday victim was referred for examination. He and two other Doctorsconducted examination. He stated that victim was unable to statehistory and therefore, history was narrated by her parents. They toldthat on 29-01-2017 victim was playing in the house of accused withher sisters and other friends and accused took victim forcefully toanother room, when victim started crying, he forcefully closed hermouth and removed victim’s clothes, he started kissing over her faceand chest and started fingering and fondling over face, chest andgenital region, he then inserted his fingers into genitals of the victim,then he removed his clothes and tried inserting his male genitalorgan into victims genital region, then victim started urging him thatshe is getting pain in the genital region then accused left her, victimcame to her house and she narrated the incident to her mother. In paragraph 2, PW5 Dr.Umbare, deposed that significantobservation was that accused had forcibly shut her mouth andinserted his penis and fingers into genital region of victim. In paragraph 3, PW5 Dr.Umbare reproduced the findings and {18} CRI APPEAL 709 OF 2022gave age of injuries to be within four days. Final opinion is at exh.60that “Considering the age of victim, physical and genital findings andlaboratory reports, it is very less likely that her hymen is torn by anyother means than sexual intercourse, concluding more possibility ofsexual assault in this instant case.”While in cross-examination, PW5 Dr.Umbare has admitted thatinjury, which is caused within 12 hours is called as fresh injury. Headmitted that he did not find any fresh injury to hymen perineum.Questions are posed to him on medical jurisprudence i.e. Modi’sJurisprudence in paragraph 8. Again in cross-examination inparagraph 12, Dr.Umbare has admitted that there is possibility ofsexual assault. Further cross-examination is by posing questionwhich is as under :“Q. : In final opinion there mention as the morepossibility of sexual assault and it is not concluded as dueto sexual assault.Ans.: We have concluding more possibility of sexualassault. As per the medical science we only mentionpossibility of sexual assault.”SUMMATION ON ABOVE EVIDENCE20.On comparative study of evidence of informant and victim, itcan safely be held that victim had been to the house of accused on {19} CRI APPEAL 709 OF 2022the day of incident. The very manner of cross-examination of victim,more particularly, paragraph 4 confirms that victim went to the houseof accused. Victim has narrated act of accused in her substantiveevidence. She has reported her mother same evening and madecomplaint of pain at her private parts. She speaks repeatedly aboutinsertion of finger in private part. As pointed out, child’s evidence is silent about penetration ofmale organ as is testified by informant mother as well as medicalexpert. However, it is to be borne in mind that victim is a child ofbarely three and half years of age. She is made to depose in thewitness box. A child of tender age may not have narrated what sheinformed her mother about penetration of male organ. It is notexpected of victim of such tender age to reiterate the incident inverbatim repeatedly in the same manner. Therefore, mere failure ofchild to depose about penetration of penis, itself would not besufficient to doubt informant mother’s testimony and immediatelybranding it to be improvized version. Child has reported mother onher arrival after attending social function. Her maternal aunt, whowas there, also informed and has deposed by stepping in the witnessbox. Therefore, there is credible account of victim as well as mother.There is no reason for false implication on account of no talks {20} CRI APPEAL 709 OF 2022between informant and wife of accused that too about six monthsback. No mother would at the cost of dignity of her own child, levelsfalse allegation. There is no reason here to disbelieve child’stestimony, which is crucial and had remained intact about act ofaccused. 21.PW5 Dr.Umbare, Medical expert, who is also an independentwitness, has testified about noting the history and on examination,issuing finding about possibility of sexual assault. Even whenexamined by way of putting questions, medical expert has reiteratedthat there is more possibility of sexual assault and medical expertsusually issue opinion in such manner. Resultantly, victim’s account,informant mother’s account is finding support even from medicalaccount. GROUNDS IN APPEAL22.Now let us distinctly deal with the grounds pressed intoservice. The fundamental ground and objection regarding failure ofprosecution to establish age is already dealt and discussed inaforesaid paragraph. It is reiterated that taking into account, testimony of informant {21} CRI APPEAL 709 OF 2022mother, birth of victim is of 2013. She is a illiterate lady. She ismerely unable to give exact date. Occurrence is of 2017. Therefore,there is evidence about victim to be below twelve years of age. 23.Second ground is that medical expert has merely expressedpossibility of sexual assault and there is no concrete finding andhence, accused to be entitled for benefit of doubt. In the considered view of this court, Medical Expert’s evidenceare always opinion evidence. Here on examination at the hands’ ofthree medical experts, opinion has been issued confirming sexualassault. It is practice of Doctors to use the word “possibility” and PW5Dr.Umbare has elaborated and clarified to that extent. Hence, abovechallenge has no force. 24.In above ground, it is also tried to be submitted that finalopinion was not issued immediately, rather it is at a belated stage. Merely Medical Expert carrying final opinion at the time ofdeposition would not be sufficient to cast doubt on the findingsrecorded upon examination of victim at the hands of not one butthree Doctors. Therefore, failure to issue final opinion at the end ofmedical examination itself, is no good ground to discard entireexpert’s evidence. {22} CRI APPEAL 709 OF 202225.Third ground of challenge is that there is no distinct evidenceregarding visit of victim to the house of accused. Such objection needs to be discarded outrightly for the simplereason that, while cross-examining victim, in paragraph 4, visit of thevictim is got confirmed by defence itself. She is asked questionsabout number of rooms, geographical location of house, location ofdistinct rooms and child has categorically answered that there aretwo rooms, house to be facing towards road and kitchen and bedroom to be at the rear side. What more is required to confirm visit ofvictim to the house of accused. Above all, very defence witness i.e.DW2 elder daughter of accused herself has also confirmed visit ofvictim at their house while she was studying. With such material onrecord, it is surprising to find objection of above nature to be raised.Defence itself has confirmed visit of victim to the house of accused. Very recently, the Hon’ble Apex Court in the case of BaluSudam Khalde and Another v. The State of Maharashtra, 2023LiveLaw (SC) 279 has observed in paragraph 38 that “if thesuggestion is made by defence counsel to a witness in cross-examination, if found to be incriminating in nature in any manner,would definitely bind the accused and he cannot get away on the {23} CRI APPEAL 709 OF 2022plea that his counsel had no authority to make suggestions in thenature of admissions against his client”. Further in paragraph 42, itis observed that “Suggestions made to the witness by the defencecounsel and the reply to such suggestions would definitely form partof the evidence and can be relied upon by the Court along with otherevidence on record to determine guilt of the accused”. Here applying above law, the manner and nature of defenceraised in the trial Court itself confirms the visit and occurrence. 26.Fourth ground of challenge is on account of implication due toprevious animosity. PW2 Informant / mother of victim, while under cross-examination, has flatly denied any quarrel with wife of accused.Victim has in cross-examination admitted that her mother andmother of her friend were not on talking terms. Even taking suchmaterial into account, there is no animosity with accused father tofalsely implicate him. Merely two ladies to be not in talking terms, isno reason to imply enmity to such extent so as to implicate accusedon grave and serious accusations. Said defence cannot be digestedand further cannot be taken recourse too for holding falseimplication. {24} CRI APPEAL 709 OF 2022Forensic Evidence :27.Fifth ground of challenge is that forensic evidence does notsupport prosecution.It is true that scientific evidence is not positive, but exh.3 bedsheet seized from the house of accused, carries blood stains. Onanalysis, blood group is shown to be “O”. Appellant’s blood group isalso “O”. Therefore, it cannot be said that scientific evidence isentirely negative. 28.It is also tried to be submitted that prosecution has not provedthe spot panchanama. On visiting evidence of PW1 Nagnath, it is clear thatpanchanama exh.38 is cogently proved. It is the house of accused.Pancha is an independent witness and therefore, there is nosubstance in above ground.29.Last ground about non-examination of neighbour or the lady towhose house informant had been for social function, is also of notmuch significance, more particularly, when crucial evidence like thatof victim and that of medical expert is worthy of credence. Here bothare lending support to each other. Therefore, above ground also has {25} CRI APPEAL 709 OF 2022no merit.30.No doubt attempt has been made by accused to adduceevidence of four witness in support of plea of alibi. But there is notrustworthy and convincing evidence. Defence to that extent has notbeen probabilized. Having taken plea of alibi, burden was on accusedto prove it, but he failed to do so. SUMMATION31.To sum up here, victim has categorically stated about act ofaccused. Though in substantive evidence, she failed to mentioninsertion of male organ and is categorical and specific only as regardsto insertion of finger in private part, offence under Section 375(b) ofthe IPC also gets gravitated. Equally, insertion of finger in privatepart of a minor attracts Section 3(b) of the POCSO Act furthergravitating penal action under Section 4 of the POCSO Act. Child isshown to be below twelve years of age, therefore, Section 5(m) ofthe POCSO also gets invoked. Hence, charges are squarely broughthome. 32.Studied the judgment under challenge. In the opinion of thisCourt, there is correct appreciation of both evidence as well as law. {26} CRI APPEAL 709 OF 2022No illegality or perversity is brought to the notice of this Court so asto interfere. 33.Learned Counsel for appellant made a faint and feeble attemptto seek leniency and reduce the sentence on the ground that accusedhas daughter of marriageable age and other daughters. Taking into consideration the nature of act of accused to beproved beyond reasonable doubt and having victimized a child, whowas friend and of almost similar age of his own daughter, nosympathy or leniency can be extended. There being no merits in theappeal, the same deserves to be dismissed. Accordingly, I proceed topass following order : ORDERCriminal Appeal No.709 of 2022 is dismissed. ( ABHAY S. WAGHWASE ) JUDGE SPT