YADAV CHANDOBA DAWLEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant is the original accused who has been convicted in Special Case (POCSO) No.19 of 2015 by the learned Special Judge / Additional Sessions Judge-4, Nanded on 17/8/2018 after holding him guilty of committing offence punishable under Ss. 363, 376 of the Indian Penal Code and Sec. 3 punishable under Sec. 4 of the Protection of Children from Sexual Offices Act (for short "POCSO Act"). The appellant - accused has been sentenced to suffer simple imprisonment for five years and to pay fine of Rs.5000.00 for the offence punishable under Sec. 363 of the Indian Penal Code and in default of payment of fine he has to suffer further simple imprisonment for two months. Further, appellant has been sentenced to suffer rigorous imprisonment for ten years for the offence punishable under Sec. 3 read with Sec. 4 of the POCSO Act and to pay fine of Rs.5000.00 and in default of payment of fine, to suffer further rigorous imprisonment for six months. However, appellant has been acquitted of the offence punishable under Sec. 366-A of the Indian Penal Code. No separate sentence has been awarded for the offence punishable under Sec. 376 of the Indian Penal Code.

(2.) Heard learned Advocate Mr. Awasarmol for the appellant, learned APP Mr. Phule for respondent No.1 - State and learned Advocate Mrs. Langhe appointed for respondent No.2.

(3.) It has been vehemently submitted on behalf of the appellant that the learned Special Judge has not considered the evidence properly. The crux of the matter is, as to whether the prosecution has proved that the girl is "child" as defined under Sec. 2(d) of the POCSO Act. If we consider Exhibit-26, which is the statement of mother of the victim - PW-1, which was taken on 5/2/2015, then at that time she has given age of the victim as 19 years. In this case, the First Information Report (for short "FIR") is stated to have been lodged on 15/2/2015. When the FIR was lodged, it was only under Sec. 363 and 366-A of the Indian Penal Code and there was absolutely no mention about the age of the girl. Further, as per the prosecution story itself the earlier incident is stated to have taken place on 19/11/2014 when mother of the victim had received message that the girl was missing from Nanded where she was residing in hostel. Even it was told by brother of the accused that the girl has been kidnapped by the accused and on the request to the said brother of the accused, the girl was brought to the house of the informant on 26/11/2014. There was no FIR lodged at that time, though it is stated that by the said statement dtd. 5/2/2015 it was informed by the informant to the Police that the girl has been found. Naturally, it would have been on the basis that the informant herself told to the Police that the girl is 19 years of age. Though in her testimony PW-1 has tried to say that at that time her daughter was 16 years of age, but her own statement Exhibit-26 would disclose that the victim was 19 years of age. The second incident is stated to have taken place on 12/2/2015 when the victim did not return from her coaching class. The FIR, thereafter has been lodged on 15/2/2015. Therefore, in this case it was utmost necessary for the prosecution to prove the birth date of the girl to show that she was "child". In her cross-examination, PW-1 has stated that the birth certificate of the girl is available and she can produce it, however it was not produced at all. The defence of the accused is that the girl was major and had eloped with the accused with consent as well as she had physical relations with him with consent. The victim is now saying that at the time of incident she was 16 years of age. She has denied portion of her statement also which indicates that in her statement under Sec. 161 of the Code of Criminal Procedure she had accepted that she was loving accused and had gone along with accused voluntarily.