IMPORTANT POINT
Rape of girl child – It is very unlikely that a small girl of five years would have any grudge against Accused, or would concoct a false story of this nature.

JUDGMENT (ORAL)

Sandesh D. Patil, J.—By the present Appeal, the Appellant has challenged the Judgment and Order dated 7th December 2020, passed by the learned Special Judge, under the Protection of Children from the Sexual Offences Act, 2012, at Greater Bombay, in POCSO Special Case No.120 of 2017, whereby the Appellant was convicted for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act”), and was sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/-, and in default of payment of fine, he was to undergo simple imprisonment for one month. The Appellant was, however, acquitted for the offence punishable under Section 10 of the POCSO Act. The Appellant was not separately sentenced for commission of offence punishable under Section 376 of the Indian Penal Code, in view of the Section 42 of the POCSO Act. The Appellant was also to pay compensation of Rs.25,000/- under Section 33(8) of the POCSO Act, within a month from the date of the impugned Order, and in default of payment of compensation, he was to undergo imprisonment of six months.

2. The case of the Prosecution is that on 9th December 2016, the daughter of the Complainant, who was four years old, was residing with her parents and siblings. It is further the case of the Prosecution that the mother used to fill water from the tap of the neighbor-Farooq. He used to give water first to one of the Complainant’s neighbor, namely, Saira and thereafter, the water used to be given to the Complainant. It is the case of the Prosecution that the Complainant used to fill the water from the pipe of her neighbor-Saira. When she was called to fill the water, at that time, she sent her daughter with a pot. The daughter went along with the pot to her neighbor’s house. At that time, the Accused was present at home. He called the daughter inside the house. It is the prosecution case that he forced the victim to take his private part in her mouth. The victim came frightened at home and told the Complainant. When the complainant confronted the Accused about the same, he ran away.

3. The charge was framed and the evidence was led. The Prosecution has examined 14 witnesses. The Prosecution has examined P.W.1 as the victim. Since she was eight years of age at the time of her examination, the Court had first asked her about the sanctity of the oath. The Court was convinced that she understood the sanctity of the oath and therefore, the oath was administered to her. She stated in her evidence, about the details of her family. She stated that her mother used to fill water through the pipe from her neighbor’s house. The victim further stated that the mother asked her to bring a pot from the neighbor’s house, when she went there, the accused was in that home. At that time, the Accused had inserted his private part in her mouth. She further stated that she narrated the said fact to her mother and her mother told this fact to her father. After her father came, they went to lodge a report with the Police Station. She further stated that she was taken to the doctor at Rajawadi Hospital. She had also given the statement in the Court. She had identified the Accused.

In her cross-examination, she stated that she used to reside near Lalubhai’s house. She stated that her father was doing colouring, masonry work. She stated that she went to bring the pipe from the neighbor-Saira’s house. She further stated that the neighbor used to wash clothes in front of their house. She had also stated they all used to wash clothes in front of their house. She stated that, at that time, when the incident happened, she was five years old. She stated that the said house of her neighbor where the incident took place, was about two houses away from her house. She was specifically asked as to whether she was tutored. To this particular question, she replied that she was knowing the facts. She was also asked a question as to whether she was aske