STATE OF MAHARASHTRA Vs. SHAIKH ASHPAK

JUDGEMENT

(1.) Present application has been fled by the prosecution seeking leave under Sec. 378(1)(b) of the Code of Criminal Procedure to fle appeal challenging the acquittal of the respondent - original accused in Special Case (Child) No.18 of 2017 dtd. 30/11/2019 by learned Judge, Special Court, Jalna, thereby acquitting the respondent from the ofences punishable under Ss. 363 , 366-A , 376(2)(i) , 376(2)(f) , 376(2)(J) , 376(2) (N) of the Indian Penal Code (IPC).

(2.) Heard learned APP for the applicant State and perused the material which was available before the learned Special Judge.

(3.) Prosecution has examined in all seven witnesses to bring home the guilt of the accused including that of the victim, her parents, friend taking education with the victim, the Head Master of the School and the Police Ofcers. It has been the prosecution story that the age of the victim was below 18 years and therefore, she was a "child" within the defnition under Sec. 2(1)(d) of the Protection of Children from Sexual Ofences Act, 2012 (for short "POCSO Act") on the date of alleged incident. The learned Special Judge has answered the said point in the negative and has held that she was not minor on the date of incident. The girl has stated her date of birth, however, prima facie scanning of the evidence at this state would show that the said date of birth has not been challenged in the cross- examination by the accused. The date of birth is also stated by the parents. However, it is to be noted that father PW4 Subhash Nevandram Tekwani is stated to be the occupied father but mother PW5 Hema Subhash Tekwani is the natural mother. Ofcourse the learned Special Judge has given reasons and raised doubt about victim being the daughter of PW5 Hema Subhash Tekwani since the name has been changed after her marriage which appears to be the second marriage. The fact, however, remains is the appreciation of evidence of PW2 Shantilal Madanlal Wangota, Head Master of the School. It appears that the girl had taken admission in the Primary School of the same Institution and then at the Secondary level, it was also the School of the same Institution. The School record Exhibit-25 gives the same date of birth which the girl has stated. Under such circumstances, this fact is required to weigh as to whether independently it could have been considered by the learned Special Judge that there is evidence to prove the minority of the victim especially when the date of birth was not challenged at all in her cross-examination.