Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 1950

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sarang V.Kotwal, J.
Mahadeo – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 1444 of 2019
Decided On : 20-12-2022

Advocates Appeared:
Sachin S.Punde, Advocate, M.R.Tidke, Advocate, Rebecca Gonsalvez, Advocate

The burden of proof under Sec. 29 of the POCSO Act, consistency of evidence, and the applicability of relevant sections of the POCSO Act and IPC in cases of sexual offenses against minors.

Headnote:
POCSO - Conviction under Sec. 6, Sec. 4, Sec. 8, and Sec. 12 of POCSO Act - Summary of Acts and Sections: Sec. 6, Sec. 376(2)(i) of IPC, Sec. 4, Sec. 8, Sec. 12 of POCSO Act - The court discussed the evidence, medical examination, and the appellant's defense. It highlighted the applicability of Sec. 375 of IPC and Sec. 3(a) & (b) of the POCSO Act, and the presence of semen on the victim's clothes as incriminating circumstances. The court also emphasized the inconsistency in the appellant's defense and the burden of proof under Sec. 29 of the POCSO Act.
Fact of the Case:

The appellant challenged the judgment convicting him under various sections of the POCSO Act and IPC for sexually assaulting a minor. The victim, a distant relative, was raped by the appellant in his house. The victim reported the incident to her mother, leading to the appellant's arrest and subsequent legal proceedings.
Finding of the Court:

The court found the victim's and her mother's testimonies credible, supported by medical evidence, and dismissed the appellant's inconsistent defense. It concluded that the prosecution proved the case beyond reasonable doubt and upheld the appellant's conviction.
Issues: Credibility of victim's testimony, consistency of medical evidence, and the appellant's defense.
Ratio Decidendi: The court relied on the victim's consistent testimony, supported by her mother's account and medical evidence, to establish the appellant's guilt. It also emphasized the incriminating circumstance of semen found on the victim's clothes and the inconsistency in the appellant's defense.
Final Decision: The appeal was dismissed, affirming the appellant's conviction under the relevant sections of the POCSO Act and IPC, with a modification in the mentioned section number.

JUDGMENT

1. The appellant has challenged the judgment and order dtd. 17/10/2019 passed by the Additional Sessions Judge, Baramati in Special (POCSO) Case No.8/2015. The appellant was convicted and sentenced as under:

i. He was convicted under Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) read with Sec. 376(2h) of the Indian Penal Code and was sentenced to suffer RI for ten years and to pay fine of Rs.10,000.00 and in default of payment of fine to suffer RI for four months.

ii. He was convicted for commission of offence punishable under Sec. 4 of the POCSO Act and was sentenced to suffer RI for seven years and to pay fine of Rs.2,000.00 and in default of payment of fine to suffer RI for two months.

iii. He was convicted for commission of offence punishable under Sec. 8 of the POCSO Act and was sentenced to suffer RI for three years and to pay fine of Rs.1,000.00 and in default of payment of fine to suffer RI for one month.

iv. He was further convicted for commission of offence punishable under Sec. 12 of the POCSO Act and was sentenced to suffer RI for one year and to pay fine of Rs.1,000.00 and in default of payment of fine to suffer RI for one month.

v. All the sentences were directed to run concurrently.

vi. He was granted set off under Sec. 428 of Cr.P.C. Though the operative part mentions Sec. 376(2h) of IPC, the correct Sec. would be Sec. 376(2)(i) of IPC.

2. Heard Shri Sachin Punde, the learned counsel for the appellant, Smt. M.R. Tidke, the learned APP for the Respondent No.1-State and Ms. Rebecca Gonsalvez, the learned appointed counsel for the respondent No.2.

3. The prosecution case, in brief, is that the applicant was a distant relative of the victim. The date of birth of the victim was 18/5/2010. The incident took place on 28/11/2014. The victim had gone to the shop of the appellant to buy sweets. The appellant took advantage of the situation and took her inside his house and committed rape on her. The victim returned home and told this incident to her mother, who went to the appellant's shop but it was closed. Thereafter she approached the police station and lodged her complaint. The FIR was lodged at Yavat police station vide C.R. No.366/2014. The victim was sent for medical examination at Sassoon Hospital. Her clothes were seized. The appellant was arrested on 28/11/2014 in the night itself. His clothes were also seized. The statements of witnesses were recorded. The clothes were sent for chemical analysis. At the conclusion of the investigation, the charge-sheet was filed. The case was committed to the Special Court.

4. During trial, the prosecution examined seven witnesses including the victim, her mother, the panchas, the medical officer and the investigating officer. The defence of the appellant was that the victim's family owed almost Rs.40,000.00 to him. There was some property dispute and, therefore, he was implicated falsely. It was also his case that he was not in the shop at the time of the incident.

5. The learned Judge considered the evidence of the prosecution and the defence of the appellant. He believed the evidence of the prosecution and convicted and sentenced the appellant, as mentioned earlier.

6. The important witnesses in this case are the victim and her mother. The victim was examined as PW-1. She was about seven years of age at the time of her deposition. She has deposed that a person named 'Nana' gave her sweets. Then he took her inside his house. After that she has described the incident of rape. She went home. She was crying. Her mother inquired with her. At that time, PW-1 told her mother about the incident. PW-1 specifically identified the appellant in the Court on video screen. The learned counsel for the appellant cross-examined her. It was tried to suggest to her that the injuries were caused because of the ant bites. Some more suggestions were put to this witness. While answering the questions in the nature of suggestions, she deposed that her mother and