IMPORTANT POINT
The main legal point established in the judgment is the importance of corroborative evidence, particularly medical evidence, in establishing the occurrence of the offence and the age of the victim in cases involving sexual offences against children.

JUDGMENT :

1. Vide both above appeals, convicts i.e. accused no.1 Rupchand and accused no.3 Machindra are taking exception to the judgment and order passed by learned Additional Sessions Judge, Aurangabad dated 17.07.2018 in Special POCSO Case No. 119 of 2015 thereby questioning its legality and maintainability.

PROSECUTION CASE IN BRIEF

2. Chawani Police Station registered crime and chargesheeted accused Rupchand, Baban (since deceased), Machindra and Shaikh Sattar for offence punishable under Sections 376-D, 323, 504, 506, 394, 201 r/w 34 of the Indian Penal Code [IPC] and Section 4 of the Protection of Children from Sexual Offences Act, 2012 [POCSO Act] alleging that on 21.09.2015 when victim PW1 was having talks with her friend PW6 on Tisgaon road, around 6.30 to 6.45 p.m., accused persons approached them. One of them caught hold of victim and dragged her and remaining two started beating PW6. Accused no.1 raped victim during which she raised shouts which invited attention of a passer by. So all accused persons took to heels. Victim and her friend approached police and lodged report on the strength of which crime bearing no. I 307/2015 was registered and investigated and all four accused were duly chargesheeted.

3. During trial before learned Additional Sessions Judge, prosecution adduced evidence of in all 10 witnesses and also adduced documentary evidence various panchanamas, reports etc. After appreciating the evidence on record, learned trial Judge convicted present appellants and hence the appeals assailing above judgment and findings reached at by learned trial Judge.

SUBMISSIONS

4. Learned counsel Mr. Shaikh Kayyum Najir, Advocate for the Appellant in Criminal Appeal No. 644 of 2018 would submit that implication is false. That, victim was caught red handed having become intimate with her friend PW6 and therefore, to save themselves, there is false implication by leveling false allegations. He further submitted that behaviour of victim herself was doubtful. That, even otherwise prosecution evidence, more particularly answers given by prosecution witnesses in cross, renders case of prosecution doubtful. He submitted that considering the very evidence of victim, she can be said to be consenting party. According to him, there were no injuries or marks of forceful sexual assault. That, accused were strangers and victim could not identify them beyond reasonable doubt. Even age of victim has not been proved by prosecution and for all above counts, he submits that, the findings and conclusion reached at by learned trial Judge is either in absence of cogent and reliable evidence or based on assumptions and presumptions. That, in fact prosecution has not proved charges beyond reasonable doubt.

Learned counsel has placed reliance on Vilas Namdeo Roundal v. The State of Maharashtra 2015 All MR (Cri) 1596; Lalliram and another v. State of Madhya Pradesh (2008) 10 SCC 69; State of Maharashtra v. Mahadu Dagdu Shinde 2021 SCC OnLine Bom 336; Anish Rai S/o. Sunil Rai v. State of Sikkim 2018 SCC OnLine Sikk 141; Smt. Firoja @ Puja Maihjur Shaikh v. The State of Maharashtra (with connected appeal) 2017 SCC OnLine Bom 9084; State of Madhya Pradesh v. Muna @ Shambhoo Nath 2015 DGLS (SC) 917; Rajak Mohammad v. State of Himachal Pradesh (2018) 9 SCC 248 and Surjan and others v. State of M.P. (2002) 10 SCC 214.

5. Learned counsel Mr. M.P. Bhaskar appearing for the Appellant in Criminal Appeal No. 619 of 2018 at the outset submits that his client was not properly represented by any legal professional in the trial court. Therefore there was no proper defence. According to him, victim was already having affair with her friend. That, they were spotted together and therefore false case of rape has been set up. Even according to him, neither age nor occurrence of rape is proved and corroborated. Therefore, according to him also, there is no appreciation of evidence and therefore findings reached at by learned trial Judge cannot be allowed to be sustaine