IMPORTANT POINT
The presumption of guilt in sexual offences under the POCSO Act requires foundational facts to be established by credible evidence, and doubts must favor the accused.

JUDGMENT :

G. A. Sanap, J.

In this appeal, challenge is to the judgment and order dated 17.12.2019, passed by the learned Additional Sessions Judge- 2, Amravati, whereby the learned Judge held the accused guilty of the offences punishable under Section 376(2)(i)(j) of the Indian Penal Code, 1860 (for short, “IPC”) and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”) and sentenced him on both the counts to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- and in default to suffer rigorous imprisonment for three months.

2. BACKGROUND FACTS:

PW-8 is the victim girl of five years old. PW-1 is the mother of the victim girl. The crime was registered on the report of PW-1. It is the case of prosecution that on 11th January, 2017 at about 12:00 noon, the victim was playing with other children in the courtyard of the house. The accused called the victim girl inside the house and made her sit on his lap. It is stated that the accused inserted his finger in the vagina of the victim girl. He touched his penis to the private part of the victim. The victim girl came crying out of the house of the accused and narrated the incident to her aunt (PW-6) and her sister (PW-9). She narrated the incident to her parents when they came back from the field. It was late in the night and therefore, they did not go to the police station.

3. On the next day, i.e., on 12th January, 2017, the informant took the victim to the Morshi Police Station and reported the incident to the police. On the basis of her report, a Crime bearing No.28/2017 was registered against the accused. PW-12 (API) conducted the investigation. The victim was referred to Government Hospital at Morshi for medical examination. PW-3 examined the victim. He did not find any injury on the body as well as on the private part of the victim. PW-12 recorded the statements of the witnesses. The statements of the witnesses were recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (for short, “Cr.PC”). The samples and articles were sent to Chemical Analyzer, Nagpur for analysis.

4. On completion of the investigation, PW-12 filed the charge-sheet against the accused. Learned Additional Sessions Judge framed the charge against the accused. The accused pleaded not guilty. His defence is of false implication on account of the enmity between him and the parents of the victim, as there was a dispute between them with regard to the house property. The prosecution examined 12 witnesses. The learned Additional Sessions Judge, on consideration of the evidence, found the said evidence trustworthy and reliable and, on conviction, sentenced the accused as above. The appellant/accused is before this Court in appeal.

5. I have heard learned advocate Mr. Patwardhan for the accused and learned APP Mr. Suraj Hulke for the State. Perused the record and proceedings.

6. Learned advocate Mr. Patwardhan submitted that there are major omissions and inconsistencies in the evidence of the material witnesses as to the actual occurrence of the incident and the involvement of the accused in the incident. Learned advocate took me through the evidence of all the material witnesses and pointed out that the witnesses have exaggerated and improved their version as to the actual occurrence of the incident before Court. Learned advocate submitted that, on the occurrence of the incident and the involvement of the accused in the incident, there is variance in the evidence of the victim on the one hand and the evidence of other witnesses on the other hand. Learned advocate submitted that the evidence of PW-6, the aunt of the victim, and PW-9, the sister of the victim, would show that they have deposed before Court as if they had witnessed the incident. Learned advocate submitted that their evidence is not trustworthy and believable.

7. Learned advocate took me through the evidence of the victim and her 164 Cr.PC statement recorde