Consent immaterial for penetrative sexual assault on minor under 18; conviction upheld on unrebutted presumptions, medical/forensic evidence despite romantic claim; distinguished from marriage/progeny cases.

JUDGMENT :

ASHISH S.CHAVAN, J.

1. By way of the present Appeal, the Appellant has challenged the judgment and order dated 11.04.2025 and 21.04.2025 passed by the learned Special Court, POCSO, Panaji, Goa, in Sessions Case No.26/2022 convicting him for offences punishable under Section 376 of IPC and Section 4 of POCSO Act, 2012. The substantive sentence under of is 10 years of rigorous imprisonment with a fine of Rs.50,000/- (Rupees fifty thousand only) in default to undergo three months rigorous imprisonment. The substantive sentence under Section 4 of POCSO Act, 2012 is ten years rigorous imprisonment with a fine of Rs.50,000/- (Rupees fifty thousand only) in default to undergo three months rigorous imprisonment. If the fine amount is realised, the same is directed to be paid to the victim after the appeal period is over. Both sentences are to run concurrently.

2. Although charge was framed against the Appellant under Section 363, 376 of IPC read with Section 4 of the POCSO Act, 2012, the Appellant was acquitted of the offence punishable under of vide judgment dated 11.04.2025.

3. It is the case of the prosecution that on 28.09.2017, mother of the victim girl, lodged a written complaint with the Margao Town Police Station. In the said complaint, she stated that she is a housewife residing at Navelim, Salcete, Goa, along with her husband and two children. Her daughter (victim) studies in standard eleven at Rosary High School, Navelim. She further states that on 26.09.2017, at about 11.00 hours, her daughter left the house to meet her friend. The Complainant returned home at about 17.30 hours, but her daughter had not returned till then. Upon making inquiries, her whereabouts could not be located. She states that after further inquiry, she came to know that the Appellant had taken away her daughter from her lawful guardianship. Acting on the aforesaid complaint, the Margao Town Police Station registered FIR bearing No.265/2017 under Section 363 of IPC and Section 8 of the Goa Children’s Act. Subsequently, Section 376 of and Section 4 of the POCSO Act were added to the array of offences.

4. During the course of investigation, on 29.09.2017, the Appellant was apprehended along with the victim girl. The Appellant was arrested on 30.09.2017. Medical examination of both the Appellant and the victim girl was carried out. The scene of offence panchanama was drawn. The Police visited the hotel where the alleged sexual assault on the victim took place and recorded the statement of hotel owner. The copy of the visitors registration book was also attached. The investigation was concluded and chargesheet was filed before the Children’s Court, State of Goa, Panaji on 21.12.2017. The charge was framed on 05.01.2021. The Appellant pleaded not guilty and claimed to be tried. The evidence of as many as seven witnesses was recorded by the prosecution. No defence witness was examined by the Appellant.

5. PW1 the mother of the victim, deposed in terms of the complaint. She submitted the School Leaving Certificate of the victim girl, which was admitted in evidence. She deposed that on the day oft he incident, the victim girl had gone to school in t