The appellant's actions constituted sexual intent under the POCSO Act; the court presumes culpable mental state which the appellant failed to rebut.

JUDGMENT :

G.A. SANAP, J.

1. In this appeal, challenge is to the judgment and order dated 21.09.2017, passed by learned Sessions Judge, Amravati in Special Case (POCSO Act) No. 109 of 2015, whereby the learned Judge convicted the appellant for the offences punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act” for short) and under Section 451 of the Indian Penal Code. He is sentenced to suffer rigorous imprisonment for three years and six months and to pay fine of Rs.5,000/- and in default to suffer SI for one year for the offence punishable under Section 8 of the POCSO Act and rigorous imprisonment for one year and to pay fine of Rs.2,000/- and in default to suffer SI for two months for the offence punishable under Section 451 of the IPC.

2. BACKGROUND FACTS :

The report in this case was lodged by the victim girl, who on the date of commission of the offence was 14 years old. The prosecution case, which can be unfolded from the report is that the appellant is the neighbour of the victim girl. On 14.02.2015, the victim was alone at her house. The appellant committed house trespass with an intention to commit an offence. The appellant caught hold the shoulder of the victim from front side. The victim girl was frightened. She ran away from the house and went to the house of her friend Roshni Tayade (PW3), residing near to her house, and narrated the incident to Roshni’s grandmother. The mother of the victim had gone to village Mahuli to meet her ailing grandfather. Her younger brother was out of the house for playing. Her father had also gone out for work. At about 5.30 p.m., her father came back to the house. She narrated the incident to her father. The victim accompanied her father to the police station and lodged the report.

3. On the basis of the report, a crime bearing No.55/2015 was registered at Police Station, Shirkhed, Tah. Morshi, Dist. Amravati. PW4 PI Pradip Pullarwar conducted the investigation. The investigation revealed complicity of the appellant and culminated in filing of the charge-sheet.

4. Learned Sessions Judge framed the charge (Exh.2) against the appellant. The appellant abjured his guilt. His defence is of total denial. The prosecution, in order to bring home the guilt of the appellant, examined four witnesses. Learned Sessions Judge, on consideration of the evidence, held the appellant guilty and sentenced him as above. The appellant is before this Court in appeal.

5. I have heard Mr. R.P. Joshi, learned advocate appointed to represent the appellant and Mr. M K. Pathan, learned Additional Public Prosecutor for the respondent/State. Perused the record and proceedings.

6. Learned advocate for the appellant submitted that the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt. It is pointed out that the conviction and sentence has been based on the sole testimony of the victim girl. The statement of the victim is unbelievable. It is submitted that the report and the evidence of the victim girl even if considered at the face value would show that the alleged act was not done with sexual intention. It is submitted that the act of the accused holding shoulder, by applying any standard, could not be said to be an offence as defined under Section 7 of the POCSO Act. Learned advocate further submitted that the evidence of PW3, the friend of the victim girl, is not the direct evidence and as such not helpful to corroborate the main incident. Learned advocate submitted that the accused in his 313 statement has disclosed his defence and has substantiated the same on the basis of the evidence