Conviction under IPC 363, 376 and POCSO Section 4 upheld for enticing minor (under 18) by suicide threat and penetrative sexual assault; consent immaterial; victim's corroborated testimony and medical evidence sufficient despite investigation lapses absent prejudice.

JUDGMENT :

SHREERAM V. SHIRSAT, J.

1. The present appeal has been filed by the Appellant challenging the impugned judgment and order dated 16/01/2023 passed by the Fast Track, Special Court, POCSO at Panaji in Sessions Case No. 4 of 2022 by which the Appellant herein has been convicted for the offences punishable under Sections 363, 376 of IPC and under Section 4 of the POCSO Act. The Appellant is sentenced to undergo 3 years rigorous imprisonment and to pay a fine of Rs.25,000/-, in default to undergo 1 month rigorous imprisonment for the offence punishable under Section 363 . The Appellant is also sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.50,000/-, in default to undergo 1 month rigorous imprisonment under Section 376 and under Section 4 of the POCSO Act to undergo 10 years rigorous imprisonment and to pay a fine of Rs.50,000/- and in default to undergo 1 month rigorous imprisonment.

2. The case of the prosecution is as under:

a. It is the case of the Complainant, that she is a resident of Curca, Tiswadi, Goa and is residing at the given address along with her daughter, i.e. the victim (victim’s name withheld) aged 16 years and 9 months. It is further the case that her daughter was studying in standard 10th. It is further the case that on 11 December 2021 at 10:00 hours, when she was busy in her labour work at construction site, her daughter was also present with her and at that time she informed her that she wants to buy Zandu balm and cold drink from the nearby grocery shop and accordingly she permitted her to go. It is further the case of the Complainant that till 10:30 hours, the victim did not return to the construction site so she started searching for her daughter, but she was not traceable. It is further the case that she tried to contact her on her mobile number, but her phone was switched off. It is further the case that she rushed to the room, however, the victim was not present in the room and therefore she contacted her neighbours and with the help of her friends and neighbours tried to locate her daughter, but she was not to be traced, so also her whereabouts were not forthcoming. It is further the case that thereafter she lodged a complaint giving the details of her daughter and she had stated that she strongly suspected that some unknown person had kidnapped her minor daughter, 16 years and 9 months and taken her to an unknown destination.

b. Thereafter investigation commenced and the Appellant came to be arrested. Upon culmination of the investigation, the charge sheet came to be filed in the present case. The trial court framed the charges u/s. 363, 376 of IPC and u/s. 4 of the POCSO Act, to which the Appellant pleaded not guilty and claimed to be tried.

3. To bring home the guilt of the Appellant, the prosecution in all examined 10 witnesses:

4. After the conclusion of the examination of witnesses cited by the prosecution, the statement of the Appellant was recorded u/s. 313 of the Cr.P.C. giving an opportunity to the Appellant to explain the evidence that has come on record. The Appellant did not examine any witness in self defence, however the defence of the Appellant is of false implication. The Fast