Specific and consistent allegations of sexual abuse warranted a trial, and the presumption under the POCSO Act could only be rebutted during the trial.

JUDGMENT

AVINASH G.GHAROTE,J. - Heard. Rule. Rule made returnable forthwith.

2. The present petition, seeks to quash and set aside the F.I.R., dated 25/10/2017 filed by the Shanti Nagar Police Station, Nagpur in Criminal Case No.287/2017; the charge-sheet dated 26/11/2017 and supplementary charge-sheet dated 26/10/2019 as well as the report of the Child Welfare Committee dated 24/10/2017 on the complaint of the respondent no.3.

3. The facts, in so far as they are relevant to the present case, are as under :

(i) The petitioner and the respondent no.3 were related earlier as the petitioner, being sister of Sonali, erstwhile wife of respondent no.3, was the sister-in-law of respondent no.3.

(ii) The petitioner's sister Sonali was married to the respondent no.3 - Amitkumar, from which marriage, they have a son named Veer @ Virendra.

(iii) The marriage of the respondent no.3 and Smt. Sonali, came to be dissolved by a decree of divorce by mutual consent dated 16/12/2013, and under the terms of the decree for divorce, the child, Veer who was aged 2 years, at that time, was to remain with his mother Smt. Sonali, who now resides in the joint family which includes her sister (the present petitioner), her brother Shri Rahul Gandlatwar and other members.

(iv) The husband - respondent no.3 was granted access to the child, which order of access came to be modified from time to time.

(v) The respondent no.3, in the meantime, had remarried and had a daughter, named Aditi from the second marriage, which was 2 and half years in 2017.

(vi) On 10/09/2017, a complaint came to be filed by the respondent no.3, alleging that the child was being assaulted and treated cruelly by his mother Smt. Sonali and her family members, including the present petitioner and her brother Rahul.

(vii) On 21/9/2017, a complaint came to be lodged by the respondent no.3, with the Child Welfare Committee, Nagpur, to the effect that the child Veer, had informed him that the child's mother Smt. Sonali and maternal Uncle Shri Rahul were treating him cruelly and so also that the present petitioner, was sexually abusing the child, who by that time had turned 6 years of age. The allegations of sexual abuse were to the effect that when the minor child Veer, was staying with his mother, he was sleeping between the petitioner and his mother, at which time, the petitioner, used to insert her hands into the pant of the child and fondle and play with his penis and also touch his anus and so also used to take the hand of the child and touch her vagina and anus. The petitioner also had threatened the child not to disclose the same to his mother, otherwise she would beat him. This is contained in para 5 of the compliant dated 21/9/2017. The Child Welfare Committee, referred the matter to the Protection Officer and asked her to meet that child and record his statement.

(viii) On 21/10/2017, the respondent no.3 had taken custody of the child for access, and was to return the child on 23/10/2017, which was not done.

(ix) On 23/10/2017 in the presence of witnesses, the Protection Officer, District Child Welfare Committee, Smt. Sadhna Hatwar, met the child, recorded his statement in absence of the respondent no.3, when the child Veer stated that when he was staying with his mother, he was sleeping between the petitioner and his mother, at which time, the petitioner, used to insert her hands into the pant of the child and fondle and play with his penis and also touch his anus and so also used to take the hand of the child and touch her vagina and anus. The petitioner also had threatened the child not to disclose the same to his mother, otherwise she would beat him. The Protection Officer forwarded the same to the Child Welfare Committee. (pg.156)

(x) The Child welfare Committee, on 24/10/2017, upon receipt of the report of the Protection Officer found prima facie incidence of sexual abuse by the petitioner and cruel treatment by his mother Smt. Sonali and maternal Uncle Shri Rahul and therefor