Point of Law: It stands well settled that circumstances not put to an accused under Section 313 Cr.PC. cannot be used against him and must be excluded from consideration - In a criminal trial, importance of questions put to an accused are basic to the principles of natural justice as it provides in opportunity not only to furnish his defence, but also to explain incriminating circumstances against him.

JUDGMENT :

ANUJA PRABHUDESSAI, J.

1. This is an appeal under Section 374 of Cr.P.C. challenging the judgment and order dated 30.03.2020 in Special POCSO Case No. 107 of 2016, Pune.

2. By the impugned judgment, the learned Special Judge, POCSO, Pune has held the Appellant (hereinafter referred to as the accused) guilty of offence punishable under Section 376 IPC and under Section 3 punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). He has been sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 10,000/- i.d. rigorous imprisonment for 3 months in respect of offence punishable under Section 4 of POCSO Act. No separate sentence has been imposed under Section 376 IPC in view of Section 42 of the POCSO Act.

3. PW-1 father of the victim had lodged a missing report alleging that his daughter (PW-2) had left the house on 25.5.2014 and that she had not returned. Subsequently, he lodged the First Information Report suspecting that the Accused herein had enticed her to accompany him under the promise of marriage. Pursuant to the FIR lodged by PW-1 Crime No. 131 of 2014 was registered against the accused at Range Hill Police Chowki, Khadki.

4. PW-10 Sharad Kale investigated the crime. He traced the accused and the victim at Warje. He brought them to the police station, recorded the statement of the victim and arrested the accused under arrest panchanama at Exhibit 44. He referred the victim for medical examination. She was examined by PW-7 Dr. Yogesh Thawal. The statement of the victim and the medical opinion revealed that the accused had subjected the victim to penetrative sexual assault. Accordingly, the provisions under the POCSO Act were invoked. The Investigating Officer recorded the statements of the other witnesses, he seized all the incriminating material and upon completion of investigation filed the charge-sheet against the accused for offences under Section 363, 366(A), 376 of IPC and Section 3 r/w. 4 of POCSO Act.

5. The accused pleaded not guilty to the charge and claimed to be tried. Prosecution, in support of its case examined 10 witnesses. The defence of the accused was of total denial. The learned Judge, upon appreciation of evidence held that the prosecution had established that the victim was a ‘child’ within the meaning of Section 2(d) of POCSO Act. The learned Judge held that the prosecution had failed to prove that the Appellant herein had enticed the victim to accompany him under the promise of marriage. The learned Judge therefore acquitted the accused of the offences under Section 363 and 366A of IPC. The learned Judge held that the testimony of the victim proves that the accused had sexual relationship with her. Her evidence is further corroborated by medical evidence, under the circumstances the learned Judge held the accused guilty of offences under Section 376 of IPC and Section 4 of the POCSO Act and convicted and sentenced him as stated above. Being aggrieved by this judgment, the accused has filed this Appeal under Section 374 of Cr.P.C.

6. Mr. Jadhav, learned Counsel for the accused submits that the prosecution has not proved that the victim was below 18 years of age. He has submitted that the incriminating circumstances regarding the age of the victim was not put to the accused in his statement under Section 313 of Cr.P.C. and as such the said circumstance could not have been used against him. In support of his contention he has relied upon the decision of the Apex Court in Maheshwar Tigga vs. State of Jharkhand, (2020) 10 SCC 108, Parminder Kaur vs. State of Punjab, (2020) 8 SCC 811 and Reena Hazarika vs. State of Assam, (2019) 13 SCC 289. He submits that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and hence the conviction and sentence cannot be sustained.

7. Per contra, Shri Gavand, ld. APP, submits that the accused has admitted the date of birth of the victim. He further submits that the accused was we