The main legal point established in the judgment is the evaluation of evidence and the appropriate application of the relevant sections of the POCSO Act based on the circumstances of the case.

JUDGMENT

R.G.AVACHAT, J. - The challenge in this appeal is to the judgment of conviction and resultant order of sentence dtd. 12/11/2019 passed by learned Addl. Sessions Judge-10, Aurangabad, in Special Case (POCSO) No.134 of 2016, whereby the appellant has been convicted for the offences punishable under Ss. 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and therefore, sentenced to suffer rigorous imprisonment for ten years and five years and to pay fine of Rs.3,000.00 and Rs.1,500.00, respectively. In default of payment of fine, he has been directed to undergo simple imprisonment for three months and two months, respectively.

2. The facts, giving rise to the present appeal, are as under:-

"A " (name changed) was a minor daughter of PW 1 - "S " (name changed). She was mentally challenged. PW 3 - Irfan, friend of PW 1 - "S ", came to his residence and told to have seen "A " in the house of the appellant. PW 1 - "S ", therefore, accompanied him to the appellant 's house. He pushed open the door to find both "A " and the appellant naked. The appellant had laid himself on the person of "A ". On having seen PW 1 - "S " and his friend Irfan, the appellant ran away. "A " informed PW 1 - "S " that the appellant took her to his residence. He undressed himself and her as well. He committed sexual intercourse with her. PW 1 - "S ", therefore, accompanied by his wife took "A " to police station. He lodged FIR (Exh.17).

3. Crime, vide C.R. No. 93 of 2016 came to be registered for the offences punishable under Sec. 376(2)(i), (j), and (l) and Ss. 4, 8 and 12 of the POCSO Act. The appellant was arrested same day. Clothes on the person of the appellant and "A " as well, at the time of commission of the offence in question, were taken charge of under panchnamas (Exh.43 and 44). The statements of the persons acquainted with the facts and circumstances of the case were recorded. Both "A " and the appellant were medically screened. The clothes on their person, vaginal swab, etc., were sent to C.F.S.L. for examination and report. On completion of the investigation, the appellant was proceeded against by filing charge sheet.

4. The trial Court framed Charge (Exh.5). The appellant pleaded not guilty. His defence is of false implication. The prosecution examined nine witnesses and produced in evidence certain documents. On appreciation of the evidence in the case, the trial Court convicted and sentenced the appellant, as stated above.

5. Heard Mr.S.J.Salunke, learned counsel appearing for the appellant; Mrs.G.L.Deshpande, APP for respondent no.1; and Mr.Shaikh Tarek Mobin, learned counsel for respondent no.2.

6. Learned counsel for the appellant would submit that if we take evidence of the prosecution as it is, it would, at the most, be an offence of outraging modesty of a female. Learned counsel, therefore, took me through the evidence on record, to ultimately urge for releasing the appellant with conviction, at the most, for the offence punishable under Sec. 354 of Indian Penal Code. According to him, the appellant, at the relevant time, was in the age group of 19-20 years. The conviction of ten years would spoil career of the appellant. He has already been behind the bars for little over six years.

7. Learned APP would, on the other hand, submit that the victim gave her evidence attributing the appellant with the offence of aggravated penetrative sexual assault. According to her, the appellant was caught on the spot. He would, therefore, have no escape from the criminal liability. Learned APP, therefore, urged for dismissal of the appeal.

8. Considered the submissions advanced. Perused the evidence in the case. The incident took place on 22/5/2016 by 12. 00 noon. PW 1 - "S ", father of the victim "A ", testified that his friend - Irfan (PW 3) and one Bhaskar (PW 4) came to his residence and told him to have seen the appellant to have been sexually assaulting "A ". PW 1 - "S ", therefore, accompanied both of them