JITENDRA RAJMOHAN MAZI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant has impugned the judgment and order dated 21st November 2016, passed by the learned Special Judge, Sindhudurg at Oros in Special Case No.44 of 2015, convicting and sentencing him as under:

(2.) In the intervening night of 30th September 2015 and 1st October 2015, PW 1-'X' (minor girl aged 7 years) was kidnapped from the lawful guardianship of her parents from the Sindhudurgnagari Railway Station, where they were sleeping and taken by the appellant towards a close-by forest area, where she was sexually assaulted by the appellant. After the sexual assault on 'X', she returned to the platform and informed her parents about the same. PW 7-Arun Shetye, Senior Station Master, on learning of the incident of sexual assault on 'X', immediately informed the police of Sindhudurgnagari Police Station. When the police reached, the appellant fled from the place where he was residing with others. PW 2 mother of 'X' lodged a complaint/FIR on 1st October 2015 at 4:00 p.m. The appellant was arrested from Oros on 1st October 2015. Thereafter, statements of witnesses came to be recorded under Sections 161 and 164 of the Criminal Procedure Code. After investigation, charge-sheet was filed as against the appellant in the Court of the learned Special Judge (POCSO).

(3.) Learned counsel for the appellant submitted that the prosecution has not established the identity of the appellant as being the very person, who was sleeping on the platform of the railway station, where 'X' was sleeping with her family, on the intervening night of 30th September 2015 and 1st October 2015. She further submits that the identification of the appellant by witnesses i.e. PW 1-'X' , PW 2-mother of 'X' (complainant) and PW 7-Arun Shetye, Senior Station Master, cannot be relied upon, inasmuch as, the incident had taken place at midnight, and as such there was no opportunity for anyone to see the appellant. She also assailed the DNA report, which shows that the blood found on the appellant's clothes was that of 'X'. She further submits that the prosecution ought to have examined Sandesh Samant, Suresh Sharma, Ajit Kajve and Naresh, to show the complicity of the appellant in the alleged crime. She submits that non-examination of the said witnesses was fatal to the prosecution case.