The acquittal hinges on the failure to prove the victim's age below 18, rendering provisions of the POCSO Act inapplicable.

JUDGMENT :-

1. This Appeal is directed against the judgment dated 18.12.2019 in Special Atrocity Case No.11 of 2016, passed by learned Special Court at Mangaon, District Raigad. By the impugned judgment, the learned Judge has held the Appellant guilty of offences punishable under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Sections 376(2)(i) and 376(2)(j) of the Indian Penal Code . He has been sentenced to undergo (i) rigorous imprisonment for 7 years with fine of Rs.10,000/- i.d.

simple imprisonment for 6 months for offence punishable under Section 4 and (ii) rigorous imprisonment for 10 years with fine of Rs.10,000/- i.d. simple imprisonment for 6 months for offence under Section 6 of the POCSO Act. Both sentences have been ordered to run concurrently. The Appellant was in custody since 21.05.2016, hence the Appellant has been given benefit under section 428 Cr.P.C. for setting off the period of detention he had undergone. No separate sentence is passed for offence under Section 376(2) (i) and (j) of the Indian Penal Code .

2. The crime against the Appellant, was registered pursuant to the First Information Report lodged by the victim (P.W.2), who at the relevant time was a 10th standard student in Vighavali Vibhag High School. The victim has stated her birth date to be 19/12/2000. She alleged that the Appellant had sexual relationship with her under the pretext of marriage. He thereafter went to his native place at Uttar Pradesh. On 25/03/2016, the victim informed the Appellant that she was pregnant and requested him to fulfill his promise of marriage. She called him two days later only to learn that his phone was switched off. The Appellant did not receive her calls and did not return to Mumbai. The victim claimed that she is a member of scheduled caste and was a minor as on the date of the incident. She therefore lodged the FIR against the Appellant for subjecting her to penetrative sexual assault and committing offence of rape despite knowing that she was a member of the Scheduled Caste. Pursuant to the FIR lodged by the victim, PI-Nisha Jadhav registered the crime against the Appellant for offences punishable under Sections 4 and 6 of the POCSO Act, 376 (2) (i), (j) and (k) of the IPC and Section 3(1)(xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the SC and ST Act).

3. PW8-Datta Nalawade was the Sub Divisional Police Officer of Mangaon Police Station. He took over the investigation in view of registration of crime under SC & ST Act. He conducted the scene of offence panchanama, recorded statements of the witnesses, referred the victim for medical examination and arrested the Appellant. The victim gave birth to a child at Sion Hospital, Mumbai. PW8 collected the relevant documents from the Hospital and sent the blood sample of the child, the victim and the Appellant for DNA testing. He also collected the CDR records from the Airtel Mobile Company and Tata Company. Upon completion of investigation, he submitted a charge- sheet against the Appellant for the offences as stated above.

4. The Appellant pleaded not guilty to the charge and claimed to be tried. The prosecution examined 9 witnesses. The statement of the Appellant was recorded under Section 313 of the Cr.P.C. The Appellant has not denied having sexual relation with the victim. He has stated that they were in love with each other and had planned to marry. He had gone to his native place to inform his mother about his marriage plan. While he was at his nati