In cases involving minors, the absence of physical resistance does not negate the possibility of sexual assault, and sufficient corroborative evidence can uphold a conviction.

1.In this appeal, exception is taken to the judgment and order dated 04.04.2019 passed by Judge, Special Court (POCSO Act), Ahmednagar in Special Case No. 171 of 2017, by which appellant is held guilty of offence punishable under Sections 452, 366-A, 376(2) (i), 376(2)(m), 506 of IPC and Section 3 punishable u/s 4 of the Protection of Children from Sexual Offences Act, 2012 [POCSO Act].

2024:BHC-AUG:27237 FACTS IN BRIEF LEADING TO PROSECUTION

2.Appellant was chargesheeted by Pathardi Police Station on accusation that on 01.04.2017, accused entered into the house of informant with intention and preparation to cause hurt to victim, a five years old girl. He lifted the victim and brought her out with intention to have forceful sexual intercourse with her, and committed forceful rape and thereby committed offence punishable under Sections 452, 366-A, 376(2)(i)(m), 506 of IPC and Section 3 punishable under Section 4 of the POCSO Act.

3.On above premise, on refusal of charge, trial was conducted by Special Court wherein prosecution adduced evidence of as many as 9 witnesses and also relied on documentary evidence. By judgment and order dated 04.04.2019, learned trial Judge accepted the prosecution story for commission of offence under Sections 452, 366-A, 376(2)(i), 376(2)(m), 506 of IPC and Section 3 punishable under Section 4 of the POCSO Act. Such judgment is the subject matter of the instant appeal.

EVIDENCE BEFORE THE TRIAL COURT

4.Sum and substance of the prosecution evidence is as under: PW1 Kanifnath, spot pancha, at Exhibit 16 deposed about spot panchanama being drawn in his presence which he identified to be at Exhibit 17. Spot was house of accused.

PW2 Mother of victim deposed and gave name of her daughter and gave her age to be 5 years. Regarding the occurrence, in para 2, she deposed as under:

“At the time of incident I had gone to Ajinath Bade for doing labour work. My work was over at about 05.00 p.m. My husband had come to me while I was working. He had come to take grass. He took the grass with him. We returned to home.

xyz was crying at that time. At that time Shital Dhakne came.

Shital told that xyz was crying as her father has gone so she took near her xyz and she gave water to xyz. Shital told that the accused left xyz at the door of our house and the accused ran away towards mountain. I took xyz near me. xyz has received injury on her private part. There was bleeding to her private part. There was bleeding on her clothes. She had wore frock and knicker. She told that Baba has taken her into his house and he pressed her and left her on the door. I had seen the injury on her private part and I was assured that accused committed rape on xyz. We myself, my husband, 2-4 persons took xyz by jeep to Pathardiat Rural Hospital. I again say that we went to police Chowki. I narrated the incident to police. The police wrote the complaint. I put thumb mark on it.

The contents therein are correct. It bears Exh.19.”

PW3 Bhanudas is pancha to seizure of clothes of victim vide panchanama Exhibit 24. He deposed that on 02.04.2017, in his presence, mother of victim, who had come to the police station, handed over clothes articles 1 and 2, which he identified along with panchanama Exhibit 24, bearing his signature.

PW4 Neighbour of informant and accused. She stated that she resided at Dhakanwadi. Accused resided in the adjacent house.

According to her, on 01.04.2017 around 5.00 p.m. while she was returning after answering call of nature, she saw accused carrying victim and dropping her near her house. According to her, at that time, victim was crying and then she further saw accused running towards hill. She noticed blood on the person of victim and she inquired victim about her father and she told while crying that he had been to the field. So this witness gave message to her father and he came and took victim for medical treatment. She claims that when she inquired with victim as to what happened, victim told her that accused slept