The main legal point established in the judgment is the reliance on school records, legal precedents, and medical evidence to establish the victim's age and prove the aggravated penetrative sexual assault, leading to the conviction under Section 376(2)(i) of the IPC.

JUDGMENT :-

1. The appellant is the original accused, who has been convicted in Special Case (POCSO) No.173 of 2016 by learned Special Judge/Additional Sessions Judge, Aurangabad on 11.12.2017.

2. The prosecution story is that the victim who is aged 6, residing in the neighbourhood of the accused along with the informant – mother and family members, was playing outside the house around 3.00 p.m. on 04.08.2016. The accused took her to his house where nobody was there and he had forcible sexual intercourse/penetrative sexual assault on the victim.

3. After the alleged incident, the victim immediately informed the said fact to her mother. The father of the victim came to house around 5.00 p.m. and thereafter, they went to Police Station to lodge report. After the report Exhibit-18 was lodged, the victim was sent for medical examination. The accused came to be arrested. Panchanama of the spot came to be executed. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short “Cr.P.C.”) as well as 164 of Cr.P.C. by learned Judicial Magistrate First Class. The record regarding the date of birth of the victim has been collected from the school, where she used to take education. The clothes of the victim as well as accused came to be seized and they were sent for chemical analysis. After the completion of the investigation, charge-sheet was filed before the learned Special Judge under the POCSO Act.

4. Charge came to be framed at Exhibit-10 against the accused under Section 376 of Indian Penal Code (for short “IPC”) and Sections 4, 6, 8, 10 and 11 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”). The accused pleaded not guilty and trial has been conducted. The prosecution has examined in all eight witnesses to bring home the guilt of the accused.

5. After considering the evidence on record and hearing both sides, the learned Special Judge has held that the victim was minor on 04.08.2016 and the accused has committed aggravated penetrative sexual assault on the minor victim. However, as regards the points of sexual assault, aggravated sexual assault and sexual harassment are concerned, the findings are given as does not survive. Thereafter, taking into consideration Section 42 of the POCSO Act and findings that offence has been made out under Section 376(2)(i) of IPC, which has more punishment than Sections 4 and 6 of the POCSO Act, the conviction has been awarded for the offence punishable under Section 376(2)(i) of IPC. The accused has been sentenced to suffer rigorous imprisonment for 10 years and pay fine of Rs.50,000/-, in default of payment of fine to undergo simple imprisonment for six months. The amount of fine was directed to be given to the victim under Section 357(1) of the Cr.P.C. This judgment and order is under challenge in this appeal.

6. Heard learned Advocate Mr. M. D. Gitte for the appellant, learned APP Mr. R. B. Bagul for respondent No.1 – State and learned Advocate Mr. V. P. Bakal for respondent No.2.

7. Learned Advocate for the appellant has vehemently submitted that P.W.6 – Rajani Dattatraya Joshi is the Head Mistress of Zilla Parishad Primary School and she has produced the register of admission of the students and the relevant entry in respect of the victim is produced at Exhibit-33, however, this entry is not supported by birth certificate and, therefore, when supporting document is not produced and proved, said Exhibit-33 cannot be read in evidence. It will have to be held that the age of the victim is not proved. Though P.W.1 – the mother has stated about the age of the victim so also the P.W.2 – the victim has stated about her age, since Exhibit-33 is not supported by authentic public document, it cannot be considered. Another fact that is required to be noted is that the victim was a school going girl and the record shows that the school timing was till 4.00 p.m. As per the prosecution story, the incident has t