RAJU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) A convict for offence under Sec. 376(1), 323 of Indian Penal Code (IPC) and for offence under Sec. 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), is hereby questioning the judgment and order passed by learned Additional Sessions Judge, Aurangabad dtd. 25/10/2018 in Special Case (POCSO) No. 46 of 2015.

(2.) In brief, prosecution was launched against present appellant, alleging that, informant had granddaughter aged 4 years. On 9/3/2015, around 2:30 p.m., she had left her granddaughter victim with neighbour and she went to railway station. Around 3:45 p.m., she received phone call and she was urgently called by another neighbour Kantabai. When informant reached, she learnt that, accused took her in a wada, offered one Rupee and on the pretext of playing some game, took her to a toilet, removed her undergarment, he inserted his finger in her vagina and thereafter, he inserted male organ. When the child cried, he closed her mouth. On hearing the occurrence, police was approached and grandmother set law into motion vide report at Exh.38, on the strength of which FIR was drawn vide Exh.39.

(3.) Learned counsel for appellant would point out that at the outset, there is no trustworthy, reliable account of any of the witness so as to accept the case of prosecution as proved. According to him, here prosecution has deliberately not examined material and crucial witnesses, like the immediate neighbour Chandrabhan, the person namely Janardhan who allegedly telephoned and called complainant. Informant has apparently lodged complaint on hearsay information. He further submitted that, considering the age of the victim, it is difficult to believe that she could knew the phraseology and words used regarding commission of offence. Thus, he submits that it is a clear case of tutoring. According to him, only immediate neighbours, who were friends of informant are examined. Thus, except interested witnesses, there is no other independent evidence regarding the occurrence. Learned advocate submits that, there is false implication and according to him medical evidence itself is inconsistent. He questions the sustainability of the judgment as according to him there is improper appreciation of evidence and law.