2024:BHC-AUG:915 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 925 OF 2019 WITH CRIMINAL APPLICATION NO. 937 OF 2022 IN CRIMINAL APPEAL NO. 925 OF 2019 Ananda s/o Mahadu Sawant, Age - 33 years, Occu – Agril., R/o Gortha, Taluka Umri, District Nanded. … Appellant [Orig. Accused No.1]

Versus

1. The State of Maharashtra Through Umri Police Station, Taluka Umri, District Nanded.

2. XYZ … Respondents WITH CRIMINAL APPEAL NO. 844 OF 2019 WITH CRIMINAL APPLICATION NO. 375 OF 2021 IN CRIMINAL APPEAL NO. 844 OF 2019 Kunal @ Khandu s/o Pandurang Gaikwad, Age : 21 years, Occ : Painter, R/o Venkatesh Nagar, Umri, Taluka Umri, District Nanded. … Appellant [Orig. Accused No.2]

Versus

1. The State of Maharashtra Through the Police Station Officer, Umri Police Station, District Nanded.

2. XYZ … Respondent …..

Mr. A. M. Gaikwad, Advocate for the Appellant in Criminal Appeal No. 925 of 2019.

Ms. Rekha Choudhari h/f Mr. S. S. Choudhari, Advocate for the Appellant in Criminal Appeal No. 844 of 2019.

Mr. S. M. Ganachari, Advocate for Respondent No.1-State in both appeals.

Ms. Namita P. Thole, Advocate (appointed) for Respondent No.2 in both appeals.

…..

CORAM : ABHAY S. WAGHWASE, J.

Reserved on : 12.01.2024 Pronounced on : 17.01.2024 JUDGMENT :

1. Feeling aggrieved by the judgment and order of conviction passed by learned Additional Sessions Judge, Bhokar in Special Case [POCSO] No. 3/2019 recording guilt for commission of offence punishable under Sections 376(2)(i), 376-D, 452, 506 r/w 34 of the Indian Penal Code [IPC], Section 6 of the Protection of Children from Sexual Offences Ace, 2012 [POCSO Act], both convicts have preferred above two separate appeals.

As both the appeals have been heard by this court and answered by learned APP on the same day, they are decided by this common judgment.

2. Umri police station registered crime bearing no. 195/2018 on the strength of report filed by victim PW1 alleging that she resides with her mother. That, on 26.11.2018 when she and her mother were sleeping in their house, around 1.00 a.m. there was knock on their door. The door was forcibly pushed thereby breaking the chain. Three persons entered the house, one of them placed knife on the neck of her mother and took her in another room and accused no.1 Ananda after making her fall on the bed, forcibly raped her. Then he went towards her mother and other one i.e. accused no.2 came and after him accused no.3 came and raped her. Around 4.00 a.m. those persons went out of the house. Victim and her mother approached police and victim lodged report Exhibit 15.

3. Investigation was entrusted to PW7 SDPO Deshpande who took all steps like arresting accused, drawing various panchanamas; victim was subjected to medical examination; medical papers were gathered and made of part of chargesheet. After gathering sufficient evidence, challan was filed and all three accused were tried by learned Additional Sessions Judge, who held case of prosecution as proved as against accused nos. 1 and 2, i.e. present appellants, and recorded guilt as stated above.

Said judgment is now taken exception to by filing instant appeals by invoking Section 374 of the Code of Criminal Procedure [Cr.P.C.].

4. Mr. A. M. Gaikwad, learned counsel representing accused no.1 Ananda would submit that at the outset prosecution had failed to establish that victim was child as per the definition under the POCSO Act. That, though it was claimed that victim was 16 years of age, he would submit that the proof adduced by prosecution in support of age was mere school extract which was prepared on the strength of Transfer Certificate [TC] of earlier school. According to him, such document has no evidentiary value. According to him, the Hon’ble Apex Court in the case of P. Yuvaprakash v. State 2023 LiveLaw (SC) 538 held that prosecution has to establish the age by adducing, firstly, ‘date of birth certificate from the school’, or ‘matriculation or equivalent certificate from concerned examinati