IMPORTANT POINT
The main legal point established in the judgment is the significance of establishing the victim's minority and the credibility of testimonies in cases of sexual offenses against minors.

JUDGMENT :

1. Feeling aggrieved by the judgment and order of conviction passed by learned Additional Sessions Judge, Bhokar in Special Case [POCSO] No. 3/2019 recording guilt for commission of offence punishable under Sections 376(2)(i), 376-D, 452, 506 r/w 34 of the Indian Penal Code [IPC], Section 6 of the Protection of Children from Sexual Offences Ace, 2012 [POCSO Act], both convicts have preferred above two separate appeals.

As both the appeals have been heard by this court and answered by learned APP on the same day, they are decided by this common judgment.

2. Umri police station registered crime bearing no. 195/2018 on the strength of report filed by victim PW1 alleging that she resides with her mother. That, on 26.11.2018 when she and her mother were sleeping in their house, around 1.00 a.m. there was knock on their door. The door was forcibly pushed thereby breaking the chain. Three persons entered the house, one of them placed knife on the neck of her mother and took her in another room and accused no.1 Ananda after making her fall on the bed, forcibly raped her. Then he went towards her mother and other one i.e. accused no.2 came and after him accused no.3 came and raped her. Around 4.00 a.m. those persons went out of the house. Victim and her mother approached police and victim lodged report Exhibit 15.

3. Investigation was entrusted to PW7 SDPO Deshpande who took all steps like arresting accused, drawing various panchanamas; victim was subjected to medical examination; medical papers were gathered and made of part of chargesheet. After gathering sufficient evidence, challan was filed and all three accused were tried by learned Additional Sessions Judge, who held case of prosecution as proved as against accused nos. 1 and 2, i.e. present appellants, and recorded guilt as stated above.

Said judgment is now taken exception to by filing instant appeals by invoking Section 374 of the Code of Criminal Procedure [Cr.P.C.].

4. Mr. A.M. Gaikwad, learned counsel representing accused no.1 Ananda would submit that at the outset prosecution had failed to establish that victim was child as per the definition under the POCSO Act. That, though it was claimed that victim was 16 years of age, he would submit that the proof adduced by prosecution in support of age was mere school extract which was prepared on the strength of Transfer Certificate [TC] of earlier school. According to him, such document has no evidentiary value. According to him, the Hon’ble Apex Court in the case of P. Yuvaprakash v. State 2023 LiveLaw (SC) 538 held that prosecution has to establish the age by adducing, firstly, ‘date of birth certificate from the school’, or ‘matriculation or equivalent certificate from concerned examination board’, if available, and in absence of it, ‘birth certificate issued by corporation, municipal authority or Panchayat’ and only in absence of above modes, age has to be determined by subjecting victim to ossification test. Here, according to him, none of the above requirements were fulfilled and therefore, it is his submission that, prosecution has utterly failed to establish that victim was minor and hence it is his submission that there cannot be conviction under the provisions of POCSO Act.

5. He next submitted that though prosecution examined in all 8 witnesses, evidence of victim, her mother and the school Headmaster was relevant. He pointed out that both, victim and her mother, are inconsistent and not corroborating each other. Further according to him, there is no proper identification. Investigating machinery has confronted photograph of arrested accused. He pointed out that accusations are made that there was forced entry by breaking chain of the door but there is no evidence to that extent and spot panchanama is silent in that regard. He further pointed out that in spite of alleged incident taking place between 1.00 a.m. to 4.00 a.m., complaint is lodged after almost 5 to 6 hours and the so called delay is not explained. He