IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.261 OF 2014 Damodhar s/o. Himtaji Dongre, Age 71 years, Occ. Labour, R/o. Hingni (Bk.), Tq. Dharur, Dist. Beed ..Appellant Versus The State of Maharashtra, Through Police Station Officer, Police Station, Dindrud, Tq. Dharur, Dist. Beed ..Respondent --

Mr.S.B.Solanke, advocate for appellant Mr.S.R.Palnitkar, APP for respondent - State --

CORAM : M.T. JOSHI, J.

DATE : AUGUST 12, 2015

ORAL JUDGMENT :

Heard both sides.

2] The appellant, who is convicted by learned Addl. Sessions Judge/Special Judge, Majalgaon in Sessions Case No.47 of 2013, vide judgment and order dated 10^th April, 2014, for the offences punishable under Section 376 read with 511 of Indian Penal Code and Sections 4 and 8 of the Protection of Children from Sexual Offences Act (for short, “POCSO Act”) and sentenced to suffer rigorous imprisonment for seven years on account of offence punishable under Section 376 read with 511 of Indian Penal Code and Section 4 of POCSO Act; and for three years on account of offence punishable under Section 8 of POCSO Act, with a direction to pay fine, has preferred present appeal.

3] The prosecution case would reveal that the present appellant as well as the family of the victim girl, who was seven years old at the time of the incident, were residing in the fields in the neighborhood.

. According to the complaint of PW 2 - grandmother of the victim, on 5^th May, 2013, while she was returning back to her house after taking milk from the appellant, her pot slipped from her hands and the milk was lost. Present appellant came to know of the same. Therefore, he went to the house of PW 2 - grandmother and advised that if the victim girl is sent to his place, he would give some milk with her. Accordingly, the grandmother sent the victim girl with the appellant to his field where, she-goats were tied by him. However, for a considerable period, the victim girl did not return to the house and therefore, grandmother of the victim girl sent her another son i.e. PW 3 to find out as to what has happened. Thereafter, PW 3 saw that under a tree, present appellant has made the victim girl to lie on the ground and he was lying over her. At that time, the victim girl was weeping. Therefore, PW 3 dragged the appellant from the person of the victim girl. By that time, it was found that the nicker of the victim girl was removed and present appellant had also removed his Dhoti. In the circumstances, PW 3 brought the victim girl to the house.

. When the grandmother inquired with the victim girl, she told that present appellant removed her nicker, made her to lie on the ground and thereafter, he also slept over her. In the circumstances, FIR came to be filed on the same day i.e. 5^th May, 2013.

. Thereafter, regular investigation was carried by PW 6 – Ramakant Panchal, A.P.I. He sent the victim for medical examination. Her statement was recorded. The appellant was arrested and sent for medical examination. Necessary panchnamas were recorded. Statements of witnesses including PW 3 were recorded. The property was sent for chemical analysis and ultimately, the charge sheet was filed.

4] Before learned Special Judge, besides other witnesses, PW 1 - victim girl, PW 2 - grandmother of the victim girl, who had filed the FIR (Exhibit-14) and PW 3 - uncle of the victim girl were examined. There is no need to advert to the medical evidence or the Chemical Analyst's report as the prosecution case is of attempt to commit rape. All the three witnesses, detailed supra, deposed on the prosecution line.

5] The defence of the appellant, as can be seen on the line of his statement under Section 313 of the Code of Criminal Procedure, is that on the day of the incident, there was marriage of Namdeo, son of Nanabhau (brother of appellant) at village Babhalgaon. There was dispute between the family of victim girl and the family of appellant over taking water from public hand pump. Due to that dispute, the fam