2024:BHC-AUG:4272 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 179 OF 2023 . Ganpati Shankar Kage Age: 40 years, Occu.: Labour work, R/o. Ashta-Kasar, Tq.Lohara, Dist.Osmanabad.

(At present in Jail) ….Appellant Versus

1. The State of Maharashtra Through Murum Police Station, Tq.Umerga, Dist.Osmanabad.

2. X Y Z …..Respondents …..

Advocate for Appellant : Ms. Ranjana D. Reddy APP for Respondent no.1 : Mr.N.D.Batule Advocate for Respondent no.2 : Mr. Kailash Vitthal Pawar …..

CORAM : ABHAY S. WAGHWASE, J.

RESERVED ON : 22 FEBRUARY, 2024 PRONOUNCED ON : 29 FEBRUARY, 2024 JUDGMENT :-

1. Judgment and order dated 30-11-2022 passed by the learned Additional Sessions Judge, Omerga in Special Case No.18 of 2021 convicting appellant for offence under Sections 376, 323, 504, 506 and under Sections 4, 6, 8, 12 of the Protection of Children from Sexual Offences (POCSO) Act, is taken exception to by the convict by filing instant appeal.

FACTS IN BRIEF LEADING TO TRIAL

2. Victim, aged 15 years, studying in 9^th Standard, lodged report on 29-04-2021 at Murum Police Station, Tq.Omerga, alleging that in the night of 28-04-2021 her father, under influence of liquor, called her in the room, threatening to kill her by use of axe, disrobed her and forced himself on her. She immediately rushed out and reached her uncle’s place and there she informed her grandparents and on the next day, she and her uncle went to Police Station and lodged report, on the strength of which, crime bearing no.93 of 2021 was registered. Investigation was carried out by PW9 Kawade, who after completion of investigation, chargesheeted accused and was tried before Additional Sessions Judge, Omerga and finally held guilty by judgment and order dated 30-11-2022 holding appellant guilty for above offences, hence the appeal.

SUBMISSIONS On behalf of appellant :

3. Learned Counsel for the appellant pointed out that there is false implication. That testimony of victim does not inspire confidence. That because of strained relations with mother, victim has been made to lodge false FIR and even tutored to depose falsely. According to learned Counsel for the appellant, even age of victim has not been conclusively proved. That even medical evidence is not conclusive about rape as Doctor himself admitted that he is not sure about the opinion. It is pointed out that, according to the complainant, only she and her brother were in the house, however, her brother was not examined and only evidence of victim has been adduced. Therefore, learned trial Court ought not to have accepted the sole testimony of victim and in absence of medical evidence, further ought not to have been recorded guilt. That there is improper appreciation of evidence and law and hence, she seeks indulgence at the hands of this Court by allowing the appeal.

On behalf of State :

4. Learned APP pointed out that prosecution had established its case by examining as many as ten witnesses. That sole testimony of victim itself is inspiring confidence. That date of birth of victim has come on record. That she is proved to be a minor. That accused is very father of victim and therefore, there is no reason for false implication. That medical evidence is positive. According to learned APP, testimony of PW7 Sadnyanbai and PW8 Rajiya is lending support to the testimony of victim. That they are also star witnesses like victim. Further learned APP pointed out that while recording statement under Section 313 of the Code of Criminal Procedure, there is virtually admission by accused and therefore, with such quality of evidence, he submits that findings of the learned trial Court cannot be faulted and he prays to dismiss the appeal.

On behalf of victim :

5. Learned Counsel for the victim also took objection to the appeal pointing out that victim is of 15 years of age. That accused raped his own daughter after consuming liquor and threatening her. That medical evidence supports victim’s testimony. That she is shown t