Reliability of age determination evidence crucial in establishing POCSO Act violations.

JUDGMENT

1. Appellant has questioned correctness of the Judgment and Order dtd. 19/6/2019 passed in POCSO Special Case No.429 of 2017 by the learned Special Judge, Greater Mumbai, convicting and sentencing Appellant under Ss. 4, 6 and 8 of the Protection of Children from Sexual Offence Act, 2012 (for short "POCSO Act") and sentenced him to suffer maximum rigorous imprisonment of ten years and to pay a total fine of Rs.30,000.00 (Rupees Thirty Thousand Only), in default of payment of fine to further undergo specified period of imprisonment.

2. Heard Mr. Bapat, learned Advocate appointed by the High Court Legal Services Committee, Mumbai to represent the Appellant, Ms. Chavhan, learned Advocate appointed by High Court Legal Services Committee, Mumbai to represent Respondent No.2 (victim) and Mr. Pethe, learned APP for Respondent No.1-State. Perused entire record.

3. As the victim was minor, aged about 15 years on the date of lodgement of crime, with a view to protect her identity and in-consonance with Sec. 228-A of the IPC and Sec. 33(7) of the POCSO Act, the facts disclosing her identity are hereinafter avoided in the present Judgment.

4. It is the prosecution case that, on 12/7/2017 Smt. Laxmi Sakat (P.W.1), Helpline Associate/Volunteer of Yuva Urban Initiative, an NGO, received a phone call on their Child Helpline informing that, the Appellant had kept in wrongful confinement a 15 years old victim and was sexually abusing her. The address of the place where the victim was confined was also informed. In turn the volunteer of the said NGO informed the said fact to Shivajinagar Police Station, Govandi, Mumbai and accordingly with the help of Police, they visited the premises of the Appellant, where they found Appellant and victim (P.W.2). The Appellant informed them that, the victim (P.W.2) was his wife. The victim was wearing Mangalsutra. No other person was in the said premises.

5. A Crime bearing No. 267 of 2017 dtd. 14/7/2017 under Ss. 343, 365 and 376 of the IPC and under Ss. 4, 5, 8 and 12 of the POCSO Act was registered with Shivajinagar Police Station, Govandi, Mumbai. During the course of investigation, the statement of victim (Exh.3) under Sec. 164 of the Criminal Procedure Code (for short "Cr.P.C.") was recorded by the learned Metropolitan Magistrate, Mumbai. Dr. Gajanan Sanap, (P.W.8) conducted Age Verification/ Determination Test of the victim and opined that, she was 14 to 15 years old with error of plus - minus 6 months on either side. After completion of investigation, Police submitted charge-sheet against the Appellant before the Trial Court.

6. The Trial Court framed charge below Exh.4. The said charge was read over and explained to the Appellant in vernacular language to which the Appellant pleaded not guilty and claimed to be tried. The defence of the Appellant was that, he had married with the victim at the instance of his father and had established sexual relations with her as she was his wife. He has stated that, he was not aware about the age of the victim. It is his further defence that, he has been falsely implicated in the present crime by his sisters and nephew after the death of his father.

7. In support of its case the prosecution has examined in all eight witnesses namely (i) Smt. Laxmi Sakat (P.W.2), first informant, (ii) victim (P.W.2), (iii) Smt. Deepali Ratnakar Patil (P.W.3), Woman P.S.I., who accompanied P.W.1 to visit the house of the Appellant on 14/7/2017, (iv) Smt. Sanjeevani Aarand (P.W.4), Woman P.S.I., who conducted spot panchanama (Exh.12), (v) Smt. Shailabe Lalbhai Pathan (P.W.5) who was Police Station Incharge on 14/7/2017, who recorded the Information Report from P.W.1, (vi) Mr. Satish Kasbe (P.W.6), Investigating Officer, who had referred victim for recording her statement under Sec. 164 of the Cr.P.C. to the concerned Magistrate, (vii) Dr. Shradha Shigvan (P.W.7), who examined Prosecutrix after lodgement of crime and gave Medico-Legal Certificate (Exh.26), (viii) Dr. Gajanan K. S