The duty of the prosecution to prove the victim was a child as per Section 2(d) of the POCSO Act and the reliance on medical reports and DNA evidence to establish the victim's age were central to the judgment.

JUDGEMENT :

1. Appellant has impugned Judgment and Order dated 1st September 2018 passed by the learned Special Judge, Pune (under POCSO Act) in Special (C) Sessions Case No. 23 of 2016 by its Judgment and Order dated 1st September 2018, convicting him under Sections 376 & 506 of the Indian Penal Code (for short, ‘I.P.C.’) and is sentenced to suffer 7 years and 1 year of rigorous imprisonment on each count respectively and to pay a fine of Rs.5,000/-, and is also convicted under Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and is directed to suffer rigorous imprisonment for 7 years and 10 years on each count respectively and to pay a fine of Rs.15,000/-. The Trial Court has directed that, all the substantive sentences shall run concurrently.

2. Heard Mr. Rajiv Patil, learned Senior Advocate for Appellant, Ms.S.S. Kaushik, learned A.P.P. for Respondent No.1-State and Mr.Aditya Bapat, learned Advocate appointed to represent Respondent No.2. Perused entire record.

3. As the victim was minor on the date of lodgment of crime, with a view to protect her identity and in consonance with provisions of Section 228(A) of I.P.C. & Section 33(7) of P.O.C.S.O. Act, the facts or any other material disclosing her identity are hereinafter avoided.

4. It is the prosecution case that, the first informant/victim was a minor, then aged approximately 17 years was a native of village Sangwa, Post Derwadi, Taluka Digras, District Yavatmal. She along with her parents had been to village Kiwale Takva situated near Dehuroad, District Pune for labour work. The prosecutrix along with her parents was staying at a poultry farm known as ‘Gayatri Poultry Farm’ owned by Mr.Sunil Deshmukh. Victim girl (PW-1) used to call Appellant as ‘Abaji’ and Mr.Sunil Deshmukh as ‘Mama’. Victim was entrusted with the work of taking care of chicks in the poultry farm by providing it fodder and water. That, in the month of October 2014, in Diwali festival on the day of ‘Bhaubeej’, the victim girl was providing fodder and water to the chicks in the poultry farm in the morning and her parents had gone to the brick kiln. At that time, the Appellant came there, gave threats of serious consequences and to kill the victim and thereafter committed forcible sexual intercourse with her. Appellant committed the said act of sexual assault on victim subsequently on atleast two occasions by giving threats to kill her. As the victim was frightened, did not disclose the said incident to her parents. In the month of April 2015, the victim and her parents shifted to village Dohale, Taluka Bhiwandi, District Thane, as her parents were not being paid labour charges from the brick kiln owner. As the victim was not feeling well on 30th April 2015, she was taken to Primary Village Center of village Padgha, Taluka Bhiwandi, District Thane by her mother. The Medical Officer present there, on examination informed that, the victim girl was pregnant of about 6 months. The mother of victim therefore made enquiry with her, whereupon she disclosed and narrated the incident of rape committed by Appellant upon her. The victim along with her mother therefore on 2nd May 2015 approached Padgha Police Station and lodged First Information Report (F.I.R.) against the Appellant. The said F.I.R. was recorded by PSI Mr.Shamrao Kale (PW-6), then attached to Padgha Police Station in presence of Smt.Manisha Godambe (PW-3), a Member of Mahila Dakshata Samittee, Padgha. The Padgha Police Station registered F.I.R. vide C.R. No. 00/2015 for the offence punishable under Section 376 of I.P.C. and under Sections 3 read with Sections 4, 5(J)(2)(3)(l)(q) punishable under Section 6 of the POCSO Act.

PSI Shamrao Kale started investigation and got the minor victim girl examined from Civil Hospital, Thane. He also collected blood samples for DNA test. As the offence had occurred within the jurisdiction of Vadgaon Maval Police Station, he forwarded documents of the said crime to the