The reliability of the victim's testimony and the presumption under section 29 of the POCSO Act were crucial in establishing the accused's guilt.

JUDGMENT

Nitin B. Suryawanshi, J. - The appellant/accused is convicted by the learned Additional Sessions Judge, Parbhani in Special Case (POCSO) No. 23 of 2014 by the judgment and order dated 09/02/2018 as follows:-

(I) For offence punishable under section 6 of the Protection of Children from Sexual Offences Act, 2012 sentenced to suffer rigorous imprisonment for 15 years and further to pay fine of Rs. 500/- and in-default of payment of fine amount simple imprisonment for one month;

(II) For offence punishable under section 363 of the Indian Penal Code sentenced to suffer rigorous imprisonment for 5 years and pay fine of Rs.500/- in-default simple imprisonment for one month;

(III) For offence punishable under section 366 of the Indian Penal Code sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs.500/- in-default simple imprisonment for one month;

(IV) For offence punishable under section 12 of the Protection of Children from Sexual Offences Act, 2012 sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs. 500/- in-default simple imprisonment for one month.

The appellant has challenged this conviction.

2. Prosecution case in short is that, father of the victim has two daughters. Victim aged 15 years and younger daughter aged 2 years. Victim was taking education at Parbhani. Accused Vijay used to harass the victim. Therefore, on 20/02/2014, he sent victim with his brother Narsing at Lohgaon. On 25/02/2014, his brother brought victim back to his house. At about 1.00 p.m., when his wife was sleeping, at that time, accused Vijay abducted victim by giving promise of marriage. He was informed by his wife at about 1.30 p.m. Thereafter, he took search of his daughter, however, she could not be found. Therefore, he lodged a report at Kotwali Police Station, Parbhani on 26/02/2014. He had also lodged report about accused Vijay harassing victim at Kotwali Police Station on 03/02/2014. On the basis of report dated 26/02/2014, Crime No. 35 of 2014 for offences punishable under sections 363, 366 of the Indian Penal Code and under sections 7, 8 of the Protection of Children from Sexual Offices Act, 2012 was registered. During the course of investigation, it was transpired that accused Vijay committed rape on victim, and co-accused has abated the crime and harboured accused No.1 Vijay. On completion of investigation, charge-sheet was filed.

3. Charge under sections 376, 354-A, 3263, 366, 212, 109 of the Indian Penal Code and under sections 5 and 16 punishable under sections 6 and 17 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') was framed against the applicant. He denied the charge.

4. In support of it's case, the prosecution has examined 12 witnesses. The defence of accused is total denial. In the written statement submitted by him under section 313 of the Code of Criminal Procedure, he has stated that he is a married person having 2 children. Victim had one-sided love on him. Though his wife and others tried to convince the victim, she was not ready to listen to anybody, and she tried to commit suicide in which her hand was burnt. Her parents were afraid that they have might be implicated in offence because of her attempt to commit suicide, therefore false case is filed against him.

5. Heard the learned advocate for the appellant, learned Additional Public Prosecutor for the respondent No.1 - State and learned advocate for respondent No.2.

6. Learned advocate for the appellant submits that the prosecution has failed to prove that the victim was minor on the date of incident. The evidence brought on record by the prosecution to prove birth date of the victim is inconsistent. Though the Headmaster is examined to prove birth date recorded in school record, the person who took entry in earlier school record of the victim is not examined. Two documents placed on record to prove the birth date of the victim had different information. By relying on Ravi Anandrao Gurpude Vs.