The reliability and trustworthiness of the testimony of the prosecutrix are crucial in cases involving offenses against minors, and even if the medical evidence does not support the prosecution case, the deposition of the prosecutrix cannot be brushed aside if found to be otherwise reliable and trustworthy.

JUDGMENT :

1. Appellant/original Accused No.1 has questioned correctness of the Judgment and Order dated 13th March, 2018 passed in Sessions Case No.93 of 2017 by the learned Special Judge (POCSOA), Nashik convicting him under Section 366 of Indian Penal Code (for short IPC) and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.3,000/- (Rupees Three Thousand Only), in default of payment of fine to suffer further rigorous imprisonment for three months and for offence committed under Section 5(1) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act) and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/- (Rupees Ten Thousand Only), in default of payment of fine to further suffer rigorous imprisonment for six months.

2. Heard Mr. Aniket Vagal, learned Advocate for the Appellant, Ms. Priyanka Chavan, learned Advocate appointed by the High Court Legal Services Committee, Mumbai to represent Respondent No.2 (victim) and learned APP. Perused entire record.

3. As the victim was minor, aged about 16 years and 11 months on the date of commission of offence i.e. on 30th June, 2016, with a view to protect her identity and in consonance with provisions of Section 228(A) of IPC and Section 33(7) of the POCSO Act, the facts or any other material disclosing her identity are hereinafter avoided.

4. It is the prosecution case that, the Respondent No.2 (victim) and her friend who was also a minor, used to go for labour work at Nashik in a track jeep of Appellant. They used to return at home by 8.00 p.m. every day. That, on 30th June, 2016, at about 7.00 a.m., Respondent No.2 (victim) and her friend (victim No.2) went to do labour work at Nashik from the jeep of the Appellant, however they did not return till late night. Therefore, the father (PW No.3) of the victim and the father of the victim No.2 tried to search them in the vicinity, however they were not traced. They continued their search for two days. However, as the said two girls were not traced out, he ultimately lodged First Information Report on 2nd July, 2016 with Harsul Police Station, District Nashik bearing Crime No.28 of 2016 under Section 363, 366 of the IPC and under Section 4 of the POCSO Act. After registration of the crime, investigation of the same was taken over by PSI Mr. Ghuge. During the course of the investigation it was revealed that, the Respondent No.2 along with Appellant were residing at village Tokwade and Inde, Taluka Murbad, District Thane, within the jurisdiction of Tokwade Police Station. On 22nd August, 2016, police apprehended Appellant and along with Respondent No.2 brought him to Harsul Police Station. The medical examination of victim was conducted by the Medical Officer of General Hospital, Nashik on 22nd August, 2016 itself. After completion of the investigation, investigating officer submitted final report under Section 173(2) of Code of Criminal Procedure, 1973 (for short Cr.P.C.), under Section 366 of IPC and under Section 5(1) read with Section 6 of the POCSO Act before the special Court.

5. The trial Court took cognizance of the said offences against Appellant and accused No.2 Ankush Ananda Mondhe and framed charge below Exh.18. The contents of the said charge were read over and explained to the accused in vernacular language to which they pleaded not guilty and claimed to be tried. To establish its case, the prosecution examined in all four witnesses namely the victim (PW No.1); another victim (PW No.2) who had eloped with accused No.2 Ankush Mondhe; Mr. Manglu Raghu Bendkoli (PW No.3), father of victim and Mr. Pravin P. Salunke (PW No.4), Assistant Police Inspector, investigating officer. The prosecution has also proved statement of victim recorded under Section 164 of Cr.P.C. through her which is on record at Exh.27.

The trial Court after recording evidence and hearing learned Advocates for the respective parties, has convicted Appellant a