ABDUL AZIZ LALMIYA DESHMUKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Appellant/accused is convicted in Sessions Trial No.70.2017 by learned Special Court, Akola under Sec. 376[2][f] of the Indian Penal Code and under Sec. 5 punishable under Sec. 6 of the Protection of Children from Sexual Offences Act (POCSO), and is sentenced to suffer imprisonment for life and to pay fine of Rs.10,000.00, and under Ss. 504 and 506 of the Indian Penal Code and sentenced to suffer imprisonment for two years on each count and to pay fine of Rs.2000.00. By this appeal, he challenges his conviction.

(2.) Prosecution case in short is that, on 10/1/2017, informant - mother of the victim lodged report with Borgaon Manju Police Station alleging that on 9/1/2017 her victim daughter went to Anganwadi and returned from there between 2 to 2.30 p.m. She went out for playing and returned at 3 p.m. At that time she was having a pouch of borkut and 2 coins of Rs.2.00 each. Informant enquired with the victim on which she told that [xxxxxxx] Informant thought that the amount might have been given by her father-in-law. At 5 p.m. in the evening, while the informant was sitting infront of her house, victim came there and sat on her lap and was shacking her waist. On that informant asked her as to why she was doing so, victim told her that [xxxxxxxxxxx]. Therefore, she enquired from victim [xxxxxxxxxx], on which the victim told that [xxxxxxxxxxxx] and she started crying. Informant removed her slack and saw that her private part was reddish and swollen. She got frightened and took victim to the house of [xxxxxxxxxx] (Aziz Deshmukh -accused) and asked him as to why he has given Rs.5.00 to victim and what has he done with her. The accused abused her and threatened to kill her, if she disclose anything to any one. She therefore returned to her house. In the night she did not disclose anything to her husband, thinking that he will quarrel. In the morning, informant narrated the incident to her husband. Her husband told the community people of the accused to give understanding to him and left for his work. The informant however went to the police station and lodged police report (Exh.18), which was registered at Crime No.7/2017 dtd. 10/1/2017 for offence under Ss. 376[2][f], 504, 506 of the Indian Penal Code and Ss. 5 and 6 of the Protection of Children from Sexual Offences Act. ('POCSO Act' for short) On completion of investigation, charge sheet came to be filed. Accused was charged under Sec. 376[2][f], 504, 506 of the Indian Penal Code and under Sec. 5, punishable under Sec. 6 of the POCSO Act. Accused denied the charge. In support of its case, prosecution examined 9 witnesses. The defence of accused was of false implication and that he was implicated in the present crime at the instance of Prashant Nage (P.W.3) due to political rivalry. In support of his defence, appellant has examined 2 witnesses. The trial Court has convicted the appellant/accused as aforesaid, hence, this appeal.

(3.) Heard learned Counsel for the appellant/accused and learned A.P.P. for respondent - State. Learned Counsel for appellant has assailed the impugned judgment of conviction by submitting that there is delay in lodging first information report and also in conducting medical examination of the victim. According to him, due to village politics, at the instance of P.W.3, accused is falsely implicated in the present crime. He submits that if at all the incident had really taken place, father of the victim P.W.4 would not have taken it lightly, as it is clear from his evidence that he just told his wife i.e. mother of victim, that he will tell the community people of the accused to give him understanding and left for work. If at all the incident as alleged by the prosecution has really taken place, his reaction would not have been such. He submits that the medical evidence does not support prosecution case. No medical examination of accused was done to ascertain whether he was capable of committing alleged offence. He submits that the accused was 75 years of age at the time of alleged incident, therefore, he was not capable of doing the alleged act, as such he is entitled for benefit of doubt. He further submits that the trial Court has not properly appreciated the evidence and erroneously convicted appellant/ accused, hence, the impugned judgment is liable to be quashed and set aside, and appellant/accused is entitled for acquittal.