The main legal point established in the judgment is that the testimony of a minor victim of sexual assault is trustworthy and reliable, and her consent is irrelevant in the eyes of the law.

JUDGMENT :

A.S. GADKARI, J.

1. The Appellant has questioned correctness of Judgment and Order dated 5th March, 2016, passed in Sessions Case No. 49 of 2014 by the learned Special Judge under POCSO Act, Greater Mumbai, convicting the Appellant under Section 4 of The Protection of Children from Sexual Offences Act, 2012 (for short, “the POCSO Act”) and is sentenced to suffer rigorous imprisonment for Ten years and to pay fine of Rs. 2,000/- in default of payment of fine, to further suffer simple imprisonment for One month and under Section 366(A) of the Indian Penal Code (for short “IPC”) and is sentenced to suffer rigorous imprisonment for One year and to pay a fine of Rs. 1,000/- in default of payment of fine, to further suffer simple imprisonment for One month. As the Appellant has been convicted under Section 4 of the POCSO Act, the Trial Court has not punished him separately for the offence punishable under Section 376 of the IPC, as per the provision of Section 42 of the POCSO Act. The Trial Court has directed that, the substantive sentences imposed upon the Appellant to run concurrently.

2. Heard Mr. Rajput learned counsel for the Appellant and Smt. Ambekar, learned APP for the State. Perused entire record.

3. The prosecutrix (PW-2) was aged about 13 years on the date of commission of the alleged offence and with a view to protect her identity and in consonance with the provisions of Section 228(A) of the IPC and Section 33(7) of the POCSO Act, the names of material witnesses and detailed narration of facts mentioned in the statement of the prosecutrix and relevant witnesses is hereby avoided.

4. Shorn of unnecessary details, the prosecution case in brief can be summarized as under:-

(i) The prosecutrix was aged about 13 years on the date of lodgment of crime and was studying in 9th Standard in a High School, at Bandra. The mother (PW-1) of the prosecutrix was a housemaid and her father was working as a delivery man with one company. They had mobile phone bearing No. 9819418058 at their home. In the month of November, 2013 the prosecutrix received a missed call from Mobile No. 9209832197. The prosecutrix called back on the said number, whereupon, the person on the other end told his name as ‘Aaditya’ (Appellant herein). The Appellant introduced himself as a person taking education in 12th Standard and working in a private company as Driver. He also told that, he plays Piano. Thereafter, the prosecutrix and the Appellant used to talk on mobile phone. The Appellant in due course, asked the prosecutrix as to whether she likes him. After some days, the prosecutrix answered him in affirmative. The father of the prosecutrix noticed her talking on the mobile phone with somebody and therefore, he removed the sim card from it. The prosecutrix told the said fact to the Appellant. The Appellant bought a sim card No. 9659632383 for the prosecutrix and gave it to her. At that time, the prosecutrix firstly met Appellant personally. The prosecutrix used to talk with the Appellant from the new sim card. Thereafter, on two occasions, the Appellant met prosecutrix. As the prosecutrix’s mother did not allow her to use mobile phone for long time, she got annoyed. On 4th December, 2013, under the pretext of purchasing a sports slacks, the prosecutrix left home and went away with the Appellant. Appellant took her to his native village, namely Bhingargaon near Panvel. Appellant introduced prosecutrix to his mother and sister as his friend and told them that, her uncle had left her at Panvel station and for her safety, he had brought her home. That, on the next day, he would leave her to her house.

(ii) On 5th December, 2013, the Appellant took prosecutrix to Pen. He booked a room in Kohinoor lodge at Pen and committed sexual intercourse with her. On 6th December, 2013, the Appellant and prosecutrix returned to Panvel. The Appellant was running short of money, rather he was not having money, and therefore, he pawned prosecutrix’s gold chain with Mahend