Point of law: Offence punishable under Section 17 read with Section 4 of the POCSO Act, Section 17 provides for punishment for abetment of any offence under the POCSO Act.

JUDGMENT :

This is an appeal under Section 374 of the Code of Criminal Procedure against conviction of the appellants for the offences punishable under Section 370 read with Section 34 of the Indian Penal Code, under Section 5 and 6 of the Immoral Traffic Prevention Act, 1956 (hereinafter ‘the PITA’) and under Section 4 read with Section 17 of Protection of Children from Sexual Offences Act (hereinafter ‘the POCSO Act’) and sentencing them to substantive sentences and fine, maximum of which is 10 years rigorous imprisonment.

2. The allegations of the prosecution as can be discerned from the F.I.R. and the record are to the effect that the appellants are mother and daughter. P.S.I. Gite (P.W. 4) of Anti Human Trafficking Unit Superintendent of Police Office Beed received an information that the appellants were running a brothel at Sirasdevi Phata Georai, on 05.01.2018. She verified the genuineness of the information and after it was confirmed, reported the matter to the Superintendent of Police. Police Inspector Jadhav of the Anti- Human Trafficking Unit was directed to conduct a raid. He arranged for panch witnesses, one of whom was a woman, Kamal (P.W.2). A Pre-trap panchnama was conducted (Exh. 24). Police Constable Bahirwal (P.W. 3) and Constable S.S. Shaikh were sent as decoy customers. Accordingly, Police Inspector Jadhav conducted the raid in presence of panchas at 5 p.m. in the house of the appellants. The respondent No.2 who was then 17 years of age was found in a room with constable Bahirwal (P.W.3). A specified denomination currency note of Rs. 500/- was found in possession of the appellant No. 2. Five to six used condoms and 200 pieces of unused condoms in a packet were found. Those were seized under a panchnama (Exh. 25). The appellants and the respondent No. 2 were taken to the Police Station and P.S.I. Gite (P.W. 4) lodged the complaint and the crime was registered as Crime No. 5/2007 for the offences punishable under Section 366A, 370, 372 read with Section 34 of the Indian Penal Code, Section 3, 4, 5, 6 and 7 of the PITA and Section 12 and section 4 read with Section 17 of the POCSO Act.

3. The respondent No. 2 (victim P.W. 1) was then got medically examined and then lodged in an Observation Home. Her statement was recorded under Section 164 of the Code of Criminal Procedure. She alleged that she was in search of work. Sister of the appellant No. 1 by name Shantabai assured to fetch her work and under that pretext took her to Georai where from she was taken to the house of appellants and was confined there and forced into prostitution. After completing the investigation, the charge-sheet was filed. At the end of the trial the learned Special Court convicted and sentenced the appellants as mentioned herein above. It is necessary to note that the appellants were acquitted of the offences punishable under Section 366A and 372 of the Indian Penal Code, of Section 12 of the POCSO Act and of Section 7 of the PITA.

4. The learned advocate Mr. Vagal for the appellants would submit that the age of the victim (P.W. 1) has been in dispute. There is no concrete evidence to reach a conclusion that she was a child within the meaning of Section 2(d) of the POCSO Act on the date of the incident. Though some attempt was made to prove her date of birth by examining Head Master of School Mrs. More (P.W. 5), there is no evidence to demonstrate as to at whose instance it was recorded in the school register. He would further submit that though some kind of ossification test was undertaken, there is no uniformity in the opinions of the Dentist and Radiologist. The approximate range of her age is stated to be 14 to 16 ½ years and bearing in mind the margin of error of two or three years, benefit of doubt ought to have been extended to the appellants. The parents of the victim were also not examined to prove her date of birth and in the absence of such concrete evidence it could not have been concluded that she was a child so as to invoke