XYZ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Present appeal has been filed under Sec. 372 of the Code of Criminal Procedure, 1973 to challenge the acquittal of respondent Nos.2 to 4 by learned Extra Joint District Judge and Additional Sessions Judge (POCSO), Jalna in Special Case (Child) No.39/2018 on 18/4/2023 from the offences punishable under Sec. 354-D, 363, 366, 376(2)(i)(n) read with Sec. 34 of the Indian Penal Code, 1860 and under Sec. 4 read with Sec. 3 and under Sec. 17 read with Sec. 16 of the Protection of Children from Sexual Offences Act, 2012.

(2.) We have heard learned Advocate Mr. A.L. Kanade for the appellant/informant and with his able assistance we have gone through the material which was before the learned Trial Judge.

(3.) In the nutshell, the learned Advocate Mr. A.L. Kanade would submit that the Trial Judge has not appreciated the evidence properly, though there was evidence to show that on the date of the incident the victim was minor. The learned Judge has not accepted the same and gave answer to point No.1 in the negative. The date of birth of the girl has been told by the father i.e. the present appellant and also it has been brought on record by examining the Headmaster of the school, where the girl was first admitted. PW 7 Deepak Thakre had brought the original record of the school which showed that the girl was born on 17/4/2003 and the incident occurred on 13/3/2018. It was, therefore, conclusively proved that the victim was aged 15 and studying in 9th standard. The learned Trial Judge has also not considered the alternative fact that if at all he was of the opinion that the girl is not "child" as defined under Sec. 2(1)(d) of the POCSO Act, then it ought to have been considered that whether the offence under the Indian Penal Code Sec. have been proved or not by considering the victim as major on the date of the incident. The other points are also answered in the negative. He, therefore, prayed for admitting the appeal.