IMPORTANT POINT
The presumption under Section 29 of the POCSO Act requires foundational facts to be established; mere reliance on medical evidence without corroboration is insufficient for conviction.

JUDGMENT :

1. In this appeal, challenge is to the judgment and order dated 10/05/2021 passed by the learned Special Court, Warora, whereby the learned Judge held the accused guilty of the offence punishable under Section 376 (2)(j)(n) of the Indian Penal Code read with Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as “the POCSO Act” for short) and under Section 506(II) of the Indian Penal Code. He is sentenced to suffer rigorous imprisonment for 20 (twenty) years and to pay fine of Rs.3,000/- and in default to suffer simple imprisonment for three months for the offence under Section 376 (2)(j)(n) of the Indian Penal Code read with Sections 4 and 6 of the POCSO Act. He is further sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.2,000/- and in default to suffer simple imprisonment for three months for the offence under Section 506(II) of the IPC.

Background facts:

2. The informant (PW3) in this case is the mother of the victim. On the day of the incident, the victim was 10 years and 3 months old. The husband of the informant died in the year 2017. The informant with her son and the victim was residing at Warora. She is doing labour work. It is stated that the accused used to come to her house frequently. The incident in question occurred on 19/04/2019. The informant came to know about the same on 21/06/2019. It is the case of the prosecution that the accused on 19/04/2019 came to the house of the informant. The victim was not well. She was sleeping in the house on the cot. The accused closed the door from inside and committed forcible intercourse with the victim initially at 2.00 p.m. It is stated that the accused again committed sexual intercourse with her at 3.00 p.m. The victim had narrated the incident to her neighbour (PW- 6) Kantabai Ukey. PW-5 Rashida Sheikh is also the neighbour of the victim. Kantabai (PW-6) informed about the incident to the informant. PW-5 came to know about the incident. They made an enquiry with the accused. However, the accused flatly denied the incident. PW-3 mother of the victim went to Police Station, Warora, on 21/06/2019 and lodged the report. On the basis of this report, a crime bearing No.697/2019 was registered against the accused for the above offences.

3. PW-7 carried out the investigation. The victim was sent to the Medical Officer for her examination. The statement of the victim under Section 164 of the Code of Criminal Procedure was recorded. The victim was referred to the Radiologist for determination of her age. The investigating officer prepared the spot Punchnama and collected the samples. The investigation revealed the complicity of the accused in the crime and, therefore, PW-7 filed chargesheet against the accused before the Special Court.

4. Learned Special Judge framed the charge against the accused. The accused pleaded not guilty. The defence of the accused is of false implication at the instigation of PW-5 Rashida Sheikh and PW- 6 Kantabai Ukey. The prosecution examined seven witnesses. The learned Special Judge, on consideration of the evidence, held the accused guilty and sentenced him as above. The appellant has come before this Court in appeal against the said judgment and order.

5. I heard Shri Y.B. Mandpe, learned advocate for the appellant and Mrs. S.V. Kolhe, learned APP for the State. Perused the record and proceedings.

6. The learned advocate for the appellant took me through the evidence of victim (PW-1) and the evidence of her mother (PW-3) and submitted that the evidence of these two witnesses is not sufficient to prove the charge against the accused. Learned advocate submitted that PW-3 informant has even denied her signature on the report. It is pointed out that in her evidence she has categorically stated that the signature on the report was made by PW-5 and PW-5 was instrumental in lodging the report. The learned advocate submitted that the victim (PW-1) on the date of the incident