BALAJI SARJERAO KAMBLE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant / accused is challenging the judgment and order dated 15th December 2015 passed by the learned Special Judge, Pune, in Special (Child) Case No.66 of 2014 thereby convicting him of the offence punishable under Section 376 of the Indian Penal Code (IPC) so also under Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act). For the offence punishable under Section 376 of the IPC, the appellant / accused is directed to undergo rigorous imprisonment of 7 years apart from directing him to pay fine of Rs.5,000/, in default, to undergo further rigorous imprisonment of 3 months. Similarly, for the offence punishable under Section 4 of the POCSO Act, he is sentenced separately to suffer rigorous imprisonment of 7 years, apart from directing him to pay fine of Rs.5,000/, in default, to undergo further rigorous imprisonment of 3 months. For the offence punishable under Section 8 of the POCSO Act, the appellant / accused is sentenced to suffer rigorous imprisonment of 3 years, apart from directing him to pay fine of Rs.1,000/, in default, to undergo further rigorous imprisonment of 1 month. Substantive sentences are directed to run concurrently.

(2.) Facts leading to the institution of the present appeal can be summarized thus :

(3.) I heard Shri Satyavrat Joshi, the learned advocate appearing for the appellant / accused. He argued that entire evidence of the prosecution is silent about age of the alleged vitim of the crime in question. The prosecution was duty bound to prove that the minor female victim was a child within the meaning of the said term under the POCSO Act. As age of the victim is not proved, the prosecution case suffers from serious infirmity. He further argued that the victim of the crime in question, has not disclosed the date of the incident. Evidence regarding place of the incident is also discrepant. History given to the doctor shows that the incident allegedly took place at the terrace whereas, evidence suggests that it took place near staircase. According to the learned advocate for the appellant / accused, conduct of mother of the victim in not disclosing anything to PW3 Dr.Neelam Kale to whom she approached first, casts a shadow of doubt on the case of the prosecution. Alleged sexual assault on the PW1 was not at all disclosed to this witness. In submission of Shri Joshi, the learned advocate for the appellant / accused, medical evidence is also not supporting the prosecution case. Tearing of hymen is attributable to fingering and the tear was old one. Therefore, it cannot be said that it was the appellant / accused, who had committed the offence of penetrative sexual assault on the minor female victim.