The central legal point established in the judgment is the reliance on consistent and reliable evidence, the legal definitions of rape and penetrative sexual assault, and the position of trust or authority to establish the appellant's guilt.

JUDGMENT

N.B. Suryawanshi, J. - The appellant is convicted for the offences punishable under Section 4 of the Protection of Children From Sexual Offences Act, 2012 (for short "POCSO Act") and Sections 376 (2) (f) and 506 (2) of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs. 5,000/- with a default sentence, by the judgment given in Spl. (POCSO) Case No. 122/2016 recorded by learned Additional Sessions Judge, Achalpur.

2. The prosecution case, in short, is that :-

PW 2 Informant is the mother of PW 4 Victim. The informant had deserted her husband since last 13 years and he was residing at Jivan Pura slums at Achalpur alongwith her daughter. The informant developed relationship with the accused and they were staying as husband and wife alongwith the victim in the same house since 4 years prior to the date of incident. Since one month prior to filing of the report by the informant, the accused used to remove his clothes and ask the victim to massage his legs and hands. During the course of massage, on 2-3 occasions, the accused inserted his private part in the mouth of the victim. When the informant objected to it, the accused had beaten her due to which she did not file any report nor disclosed it to anybody. On 20/06/2016, PW 2 Informant found the accused molesting the victim. The accused had removed his clothes and had asked the victim to press his legs and hands and thereafter, the accused sat on the chest of the victim and gave his private part in the mouth of the victim. The informant had pushed the accused away and asked him not to stay in her house. Then on the next day, the informant alongwith victim went to the police station and lodged first information report on the basis of which C.R. No. 182/2016 for the offences punishable under Section 376 (2) (f) of the Indian Penal Code and Section 4 of the POCSO Act was registered. After completion of investigation, charge-sheet was filed. Charges were framed against appellant under Section 376 (2) (f) of the Indian Penal Code and under Section 4 of POCSO Act.

The prosecution, in support of its case, examined 7 witnesses. The defence of the appellant was of denial and of false implication. The defence suggested to the informant that she was not keeping well and the accused was bearing all the household expenses, however when the wife of the appellant came to take him back, the informant had lodged false report in order to receive compensation from the government. In the statement under Section 313 of the Code of Criminal Procedure, the appellant contended that he had to receive money from the informant and on 20/06/2016, he went to her house to demand money, the informant quarreled with the appellant and told him to wait till she arranges the money. While he was waiting for the informant, she came with the police and made false allegations against him. The trial was conducted and after assessing the evidence, the Sessions Court has convicted the appellant as aforesaid. Hence, the present appeal.

3. Heard learned advocate for the appellant and learned APP. With the assistance of both the learned advocates, we have gone through the notes of evidence and record.

4. Learned advocate for the appellant submitted that the evidence of prosecution is unreliable. According to the accused, the prosecution has failed to prove that at the time of the incident, the victim was child within the meaning of Section 2 (1) (d) of the POCSO Act, and the evidence of PW 3 Headmaster who brought on record the school leaving certificate (Exh. 29) is not reliable as he has admitted in the cross-examination that it is not mentioned in the admission register (Exh. 31) as to on what basis the entry of birth of the victim was taken. He further argued that the medical evidence does not support the allegations of the victim and informant and therefore the prosecution has failed to prove the offence beyond reasonable doubt. Hence, the appellant is entitled for acquittal.

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