The judgment emphasizes the need to consider the age and reformation of the child-in-conflict with law, the applicability of alternate punishment under Section 42 of the POCSO Act, and the provisions of the Juvenile Justice Act.

JUDGMENT :

VIBHA KANKANWADI, J.

1. Appellant is the original accused who faced trial in Special Case (Child) No. 69 of 2018 before the learned Judge of the Special Court, under POCSO Act, Jalna. The appellant has been convicted for the offence punishable under Section 376(2)(i) read with 511 of the Indian Penal Code and for the offence punishable under Section 6 read with Section 18 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’). He has been sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo rigorous imprisonment for two years for the offence punishable under Section 376(2)(i) read with Section 511 of the Indian Penal Code. Further, he has been sentenced to suffer rigorous imprisonment for a term of 10 years and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo rigorous imprisonment for two years for the offence punishable under Section 6 read with Section 18 of the POCSO Act. Since the record of the case shows that the appellant was child-inconflict with law, his name is concealed in the judgment; though he has attended majority during the pendecy of trial itself.

2. Since the arguable points were raised, this Court has admitted the appeal on 03-07-2020 and with consent, taking into consideration the facts of the case, took the matter for final hearing.

3. Heard learned Advocate Mr. R. V. Gore for appellant and learned APP Mr. S. W. Munde for respondent No. 1 – State.

4. Learned Advocate representing the appellant submitted that as per the prosecution story, the offence had taken place on 11-08-2017. The victim is stated to be 4½ years old girl at that time. It is stated that the appellant took two daughters of the informant to his house under promise to give chocolates to them and ravished victim. Even as per the prosecution story, the appellant was child-in-conflict with law (aged 17 years old) at the time of the offence, however, as per the procedure laid down under the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short hereinafter referred to as the ‘Juvenile Justice Act’), he was treated as adult after the psychiatry report was given by the panel. This point appears to have not been considered by the learned Special Judge while imposing sentence on the appellant. The sentence has been imposed as if the appellant was adult since beginning i.e. from the date of the offence itself.

5. Learned Advocate for the appellant has further submitted that though the informant, who is the mother of the victim, has stated in the FIR as well as in her testimony, that the incident had taken place at about 1.00 p.m on 11-08-2017, yet, she has lodged the report on 13-08-2017. She has not explained the delay caused in lodging the FIR. It creates doubt. Further, at the time of deposition, P.W.-8 who was the victim herself, was aged 6 years. She has not given details of the acts done with her by the child-in-conflict with law. Admittedly, as per the testimony of P.W.1 – informant has not witnessed the incident and, therefore, what was done with the victim by the child-in-conflict with law ought to have been extracted from the victim. P.W.-3 is the father of the victim (husband of the informant), however, his testimony is hearsay, because he has specifically stated that after he came back to house from his work place, the entire incident was told to him by P.W.-1. P.W.2 is the father of a boy of 4 years, he has stated that the child in conflict with law had taken his son in his house and had sexually assaulted the son of P.W.-2, about 8 months prior to the present incident but however, that matter was settled at the village level. In cross also, he has stated that he had not disclosed about the incident to anybody. Without any evidence, only on the basis of the statement of this witness, alleged criminal antecedents of the child-in-conflict with law cannot be considered at a