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1. The instant Criminal Appeal has been preferred on behalf of the appellant-convict Mohit against the judgment dated 09.11.2017 passed by the Additional Sessions Judge, Court No. 8, Muzaffarnagar in Special Sessions Trial No. 123/9 of 2017 (State Vs. Mohit) arising out of Case Crime No. 238 of 2017 under Sections 377 I.P.C. And 5/6 of Protection of Children from Sexual Offences Act, 2012, P.S. Kakrauli, District Muzaffarnagar whereby the learned trial court while acquitting the appellant for the offence under Section 377 of I.P.C, convicted him for the offence under Section 5/6 POCSO Act, 2012 and sentenced appellant Mohit with rigorous imprisonment for 10 years and a fine of Rs. 50,000/- and also ordered to undergo further imprisonment of two years in default of payment of fine.

8. The learned trial court after hearing the contentions of the learned counsel for the parties passed judgement on 09.11.2017 acquitting accused Mohit from the offence under Section 377 I.P.C; but held him guilty for the offence under Section 5/6 of POCSO Act, 2012 and sentenced with rigorous imprisonment for 10 years and also fine of Rs. 50,000/-, in default of payment of fine the convict Mohit was also directed to undergo an additional rigorous imprisonment for two years.

9. Aggrieved from the impugned judgment of conviction and sentence, this criminal appeal has been preferred on behalf of the appellant-convict Mohit on the ground that the conviction of the appellant held by the trial court is against the weight of the evidence on record. The learned trial court committed manifest illegality apparent on the face of record & convicted the appellant. P.W-2 Pramita in her statement has narrated that she came to know in regard of occurrence from the people of village but none of the person of the village was examined. Even no person of the village was named by this witness from whom she had come to know in regard to the occurrence. Statement of P.W-4 also does not corroborate the prosecution story. The trial court convicted the appellant for the offence under Section 5/6 of POCSO Act on the basis of wrong finding which is not sustainable in the eye of law.

10. I have heard submissions made by the learned counsel for the appellant and also learned A.G.A. for the State, and perused the materials brought on record.

11. The learned counsel for the appellant has submitted that although the trial court has acquitted the appellant from the offence under Section 377 I.P.C but has convicted the appellant for the offence under Section 5/6 of POCSO Act relying upon the testimony of P.W-3 Vasu. This witness was child witness, his competency as a child witness was not properly testified by the court below to declare the witness as competent who was of the age of four years. Moreover, the statement of this witness P.W-3, Vasu is not corroborated by the statement of P.W-1, Dharmendra informant and P.W-2, Pramita who have denied in their statement in regard to commission of alleged crime by the appellant-accused Mohit. Moreover this single testimony of P.W-3, Master Vasu is also not corroborated with the medical evidence. As such the conviction and sentence passed by the learned trial court is illegal based on perverse finding and accordingly submitted to allow this appeal and to set aside the conviction and sentence of the appellant-accused Mohit .

13. The trial court has acquitted the appellant Mohit from the offence under Section 377 of I.P.C but convicted the appellant-accused for the offence under Section 5/6 of POCSO Act, 2012 while the trial court had framed charge against the appellant-convict Mohit under Section 3a/4 of POCSO Act, 2012. Therefore, it will be pertinent to mention her the provisions of Section 3a/4 and 5/6 of POCSO Act, 2012 which reads as under:

Section 3 of POCSO Act, 2012 defines penetrative sexual assault as under: