RASHID SARDAR BAIG Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard the learned counsel for the applicant, the learned A.P.P. for respondent No.1/State and the learned counsel for respondent No.2/victim.

(2.) The applicant is seeking suspension of the sentence to suffer rigorous imprisonment for 20 years imposed upon him by the learned Additional Sessions Judge, Ahmednagar, in Special Case No.549 of 2020, by judgment and order dtd. 13/2/2023, for the offences punishable under Ss. 376(2)(j), 376(3) of the Indian Penal Code and Ss. 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (for short, "POCSO Act").

(3.) The learned counsel for the applicant has vehemently argued that the prosecution has a case of penetration, but there was no evidence with the prosecution. The prosecution alleged that to cause penetration, the applicant has manipulated the body of the child/victim to apply the coconut oil on her private part so as to cause the penetration, but the prosecution did not prove that the body of the applicant and accused and their clothes were stained with oil. The C.A. report also not support such contention. In the absence of corroborative evidence, barely recovery of articles from the house of the applicant is not sufficient to believe that the incident happened. The leading questions were put to the victim about coconut oil bottle. The allegation of finding coconut oil bottle in the house of informant did not prove the charges. A coconut oil bottle is available in the house of most people. The spot panchnama was drawn belatedly i.e. after the alleged incident and arrest of the applicant. The spot panchanama were prepared without notice to his mother who was living with him in the house. Hence, recovery of the so-called articles falls under the shadow of doubt. He harped upon the medical evidence which is not supporting the prosecution. The vulval redness found on the private part of the victim is possible by itching. The learned Additional Sessions Judge ignored such material aspect. The prosecution did not prove the case beyond reasonable doubt. Therefore, presumption under Sec. 29 of the POCSO Act would not attract. He is also tried to point out the character of the mother of the victim. This Court does not agree with it as it was an independent case of the sexual assault with a small girl of 8 years. He would submit that in absence of cogent and reliable evidence, the applicant ought not to have been convicted. The prosecution did not have the sufficient material for which the case of applicant has been tried. The prosecution has no case in alternate of attempting to commit the offence of sexual assault with a child. The applicant has a strong case on merit. The evidence needs to be re-appreciated. The statement of the victim cannot be accepted as a gospel truth. She being a minor is amenable to tutoring. The mother has grievance that the applicant did not pay her money when she demanded. Hence she tutored her daughter to lead the evidence against him. The applicant is 28 years unmarried boy. The applicant is well acquainted with the mother of the victim and victim is also known him. Since there are legal aspects involved in the case, the sentence may be suspended.