IMPORTANT POINT
The judgment established the distinction between rape and sexual assault, emphasizing the requirement of penetration for the former, and the physical contact without penetration for the latter under the POCSO Act.

JUDGMENT :

1. Aggrieved by the judgment and order of conviction passed by the learned Special Judge (POCSO Act), Aurangabad dated 15-10-2020 in Special Case Child Prot.No.168 of 2017 recording guilt of the appellants for offence punishable under Sections 376(2)(f)(n) r/w 34, 506 r/w 34 of the Indian Penal Code (IPC) and under Sections 4, 6 and 8 of the Protection of Children from Sexual Offences Act (POCSO Act), original accused has preferred instant appeal.

BRIEF CASE OF PROSECUTION IN TRIAL COURT

2. Victim, who was studying in 6th standard was noticed crying in the class on 07-09-2017. Her teacher PW1 Wankhede made enquiry as to why she is crying. Victim narrated that she was residing with her maternal uncle as she has no parents. She narrated that accused persons were forcing her to do all household work and when she failed to do so, they kept her starving. They used to make her sleep in washroom. She also narrated that when nobody was in the house, at that time, accused Sudhir and accused Santosh used to strip her, move their hands on her body, private parts. They used to threaten her not to disclose such act to anyone. When she reported to her aunt accused no.3, she used to threat to driver her out of house. PW1 Waknkhede, teacher on hearing the child, called Head Master of the School PW5 Tapkire and even he heard what victim narrated and therefore, they had been to Police Station and complaint was lodged on the strength of which crime was registered and the same was investigated by PW9 Chavan and on completion of investigation, accused were chargesheeted and duly made to face trial before the Special Judge (POCSO Act), who after appreciating the oral and documentary evidence adduced by the prosecution, convicted appellants as stated above.

The above judgment is challenged by the appellant on following grounds :

GROUNDS

(i) Firstly prosecution has failed to establish the charges cogently, firmly and beyond reasonable doubt.

(ii) Secondly there is no independent corroboration except testimony of victim.

(iii) Thirdly FIR is on the basis of hearsay information.

(iv) Fourthly prosecution has failed to prove age of the victim.

(v) Fifthly medical evidence does not suggest commission of offence under the POCSO Act.

(vi) Lastly there is false implication and inspite of no evidence, conviction is recorded.

Submissions on behalf of State and victim :

3. In answer to above grounds, learned APP pointed out that prosecution has cogently established that victim, who has lost her parents, was taken care by the accused. However, inspite of victim being of tender age, she was tortured by making her forced to do all household work, she had been kept starved for not doing work. Moreover, accused nos.1 and 2 committed offence punishable under the provisions of the POCSO Act. That victim has named accused persons and narrated their deeds. That medical examination proved their guilt. That independent witnesses like School authorities have categorically deposed. Therefore, as all ingredients for attracting offence under the POCSO Act were available on record, it is his submission that learned trial Court has committed no error in recording guilt.

4. Learned Advocate for victim pointed out that accused no.1 is husband of maternal aunt, accused no.2 is maternal uncle and accused no.3 is maternal aunt of the victim and they are preparators of crime. That prosecution has examined nine witnesses and their evidence has remained unshaken. That charges are successfully proved. That statements of victim recorded under Sections 161 and 164 of the Cr.P.C. are consistent. That there is evidence of independent witnesses like class teacher and school authorities. Therefore, on finding guilt, conviction has been recorded on due satisfaction and careful scrutiny of evidence. Thus, it is submitted that there is no merit in the appeal and prayers are made to dismiss the same.

PROSECUTION WITNESSES

5. To support its case, prosecution has examined in all nine witnesses and thei