IMPORTANT POINT
Rape—Conviction cannot be sustained where prosecution case is shaky on all counts.

JUDGMENT

Sadhana S. Jadhav, J.—Heard the Counsel.

2. The appellant herein is convicted for the offence punishable under Section 376 of Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO” Act) vide judgment and order dated 4th March 2015 by the Special Judge (POCSO), Kalyan and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.3,000/-, in default to suffer rigorous imprisonment for one year and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default to suffer rigorous imprisonment for one year respectively. Hence, this appeal.

3. It is the case of the prosecution that on 21st December 2013, the prosecutrix Ms. “X” lodged a report at Ambernath Police Station alleging therein that her father is working in Ambernath Municipal Council in Water Department. When she failed in her 12th standard examination, she joined Kirti Computer Class at Ambernath to complete the course of M.S.C.I.T., Tally and D.T.P. She used to attend the class at 1.00 pm. and the said computer class was at a distance of 1 km. from her house. The present appellant was residing in the same locality and the prosecutrix and the appellant were friends since more than one year. On some occasions, the appellant used to drop her to Kirti class on his motorcycle. According to the prosecutrix on 21st December 2013, she left the house at about 1.00 pm. to attend her class by foot. When she had reached Bhendipada, she met her friend i.e. the appellant and asked her to accompany him on his motorcycle. She obliged him. Then they had visited Teenzadi area. He proposed her. Then they had been to Titwala for having lunch at Akshay Hotel. At about 2.00 to 2.30 pm., they had checked-in the room of hotel and according to the prosecutrix, she was ravished by the appellant/accused against her wish. Thereafter he had dropped her in front of Jaihind Bank. According to the prosecutrix, she returned to her house and disclosed the incident to her mother and thereafter her parents had taken her to Ambernath Police Station and report was lodged against the appellant/accused for the offences punishable under Section 376 of Indian Penal Code, 3(1)(11) of the Scheduled Casters and Scheduled Tribes (Prevention of Atrocities) Act and 3 and 4 of Protection of Children from Sexual Offences Act.

4. It is pertinent to note that in this case, the hotel owner was shown as an accused and was charged with the offence punishable under Section 376 read with 34 of Indian Penal Code.

5. The appellant/accused herein was working in the Postal Department as Postman and posted at Kalwa Post Office, District Thane. Upon completion of investigation, the charge-sheet was filed on 7th February 2014, the case was committed to the Sessions Court and registered as Sessions Case No. 20 of 2014.

6. The prosecution has examined ten witnesses to bring home the guilt of the accused. The case rests upon the evidence of prosecutrix i.e. P.W.-1 and her mother, Sou. Malan Yellapa Ghaste, PW-2.. It is pertinent to note that most of the witnesses are hostile except PW 7, 8, 9 and 10.

7. In this case, it is necessary to ascertain as to whether the statement of the prosecutrix is truthful and inspires confidence of the Court. The date of birth of the prosecutrix is 23rd October 1997 and the date of incident is 21st December 2013. It is further noteworthy that the prosecutrix had attained an age of understanding. She has stated in the F.I.R. that she was a good friend of the appellant/accused and that he used to drop her to her class on several occasions. However, the said contention is not reflected in her deposition and is elicited by way of a suggestion. The prosecutrix has stated before the Court that the timing of her class was 1.00 pm. to 6.00 pm. At the request of the appellant/accused, she had accompanied him and they were sitting and chitchatting in Teenzadi area. He had proposed to her. Sh