Compliance with Section 313 of Cr.P.C. is crucial to afford the accused an opportunity to explain incriminating evidence and non-compliance leading to prejudice warrants setting aside the conviction.

JUDGMENT

Bharati Dangre, J. - Two appeals are filed by the two accused, who came to be tried as Accused Nos.1 and 2 by the Additional Sessions Judge, Mangaon, District Raigad in Special POCSO Case No.2/2013, on being aggrieved by their conviction and imposition of sentences thereafter.

The two Appeals, though raise distinct challenges arise out of the common Judgment and hence I have clubbed them and heard together.

I have heard the learned counsel Mr.Niranjan Mundargi for Accused No.1 and Mr.Butala for Accused No.2. I have also heard learned APP Ms. Dabholkar for the State in two appeals, whereas, the victim-Respondent no.2 in Cr. Appeal No.41/2019 is represented by Ms.Janhavi Karnik and in Cr.Appeal No.214/2019, is represented by Mr.Lokesh Zade.

2. The prosecution case presented before the Sessions Court is, that the victim residing with her family is persuading her education in 8th Standard, in one of the Schools in the locality. It is alleged that on the date of the incident when she returned from school and was present in the house all by herself, and went to sleep, accused No.1, Rajendra, her cousin brother committed forcible sexual intercourse with her and left the place.

On account of the alleged sexual indulgence, she conceived and on noting that her stomach was growing, she was taken to a Doctor, who divulged that she is carrying pregnancy of six months. Thereafter, she was sent to Pune, after having telephonic conversation with her uncle and was left in the custody of Chaitanya Mahila Mandal on 22.04.2013. On being admitted there, she was taken under the wings of PW 5, the founder of the shelter home, who with the help of a counselor opened her up and she disclosed that her brother Rajendra had forced himself upon her and raped her.

The aforesaid fact was informed to Bhosari Police Station on 10.05.2013 on the letterhead of Chaitanya Mahila Mandal, with a request to register an offence under the POCSO Act. Thereafter, a lady PSI visited the shelter home and recorded the statement of the victim. Another statement of the victim came to be recorded on 08.06.2013, to corroborate the version in her earlier statement given to Mahad Police Station.

As per the prosecution, on 25.05.2013, the victim delivered a female child and she was discharged on 03.06.2013. The victim and child were subjected to DNA test and the Report received, failed to establish that the Accused No.1 is the father of the child.

3. Once again inquiry was made with the victim girl, when she disclosed that her brother, Accused No.2-Rohan had sexually assaulted her, somewhere in the month of September, when she was present in the house alongwith him and was watching Television and he suddenly latched the door, threw her on the cot and by undressing himself, committed rape on her.

After two days, again he sexually abused her, which scared her and she started avoiding to remain in the house in presence of Rohan, her own brother.

The Accused No.2 came to be arrested and his DNA samples were forwarded for analysis. The report of the forensic analysis established the Accused No.2 Rohan, to be the biological father of the child born to the victim.

4. The learned counsel Mr.Mundargi, who represent Accused No.1, would vehemently submit that the key witness in the prosecution case is not trustworthy and the material placed before the Court would clearly reveal that she is attempting to save someone and obviously it is Accused No.2, who happens to be her brother. As far as Accused No.1 is concerned, it is the submission of Mr.Mundargi that only one act of sexual assault has been attributed to him and that too with all vagueness, without any date, time and place being specifically narrated.

It is argued by Mr.Mundargi that, the prosecution has relied upon the statement of the victim girl given to the Police for involving accused No.2, her own brother and in her statement she has candidly admitted that her brother committed sexual intercourse with her against her will, but despi