ASLAM HAIDER KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant/accused is challenging the judgment and order dated 10th February 2016 passed by the learned Special Judge, Pune, under the Protection of Children from Sexual Offences Act, 2012 (herein after referred to as POCSO Act for the sake of brevity) in Special Sessions Case No.26 of 2015, thereby convicting the appellant/accused for the offence punishable under Section 6 of the POCSO Act as well as under Section 363 of the Indian Penal Code. For the offence punishable under Section 6 of the POCSO Act, the appellant/accused is sentenced to suffer rigorous imprisonment for 10 years apart from direction to pay fine of Rs.3,000/- and in default, to undergo further rigorous imprisonment for one month. For the offence punishable under Section 363 of the Indian Penal Code, he is sentenced to suffer rigorous imprisonment for 2 years apart from direction to pay fine of Rs.2,000/- and in default, to undergo rigorous imprisonment for fifteen days.

(2.) Facts, in brief, leading to the prosecution and the resultant sentence of the appellant/accused, can be summarized thus :

(3.) I have heard the learned counsel appearing for the appellant/accused. He argued that though in her evidence, the victim female child/PW3 has deposed about commission of the incident at the Aashray Lodge, in her statement under Section 164 of the Code of Criminal Procedure, she has stated that the incident took place at Ambe Hotel of Alandi. The appellant/accused is neither owner of the tempo nor that of the motorcycle and no witnesses are examined by the prosecution to show that the tempo or the motorcycle was being used by the appellant/accused. Manager of the lodge was not examined by the prosecution. It is, further, argued that, the register of the lodge shows that Pooja Salunke was a major woman. The learned counsel argued that had the lady accompanying the appellant/accused was minor, owner of the lodge would have objected and would not have given room to them. It is also argued that age of the victim female child/PW3 is not proved by the prosecution. There is no medical evidence regarding age of the victim female child/PW3. Her father has admitted that he has not recorded her birth in the official record and he was deposing about the age approximately. Mother of the victim female child/PW3 has also not deposed about the age of the victim female child/PW3. It is also further argued that history given to the Medical Officer is also not supporting the prosecution case and evidence of PW7 Dr.Tania Anand shows that no rape was committed on the victim female child/PW3. The learned counsel for the appellant/accused relied on the judgment in the matter of Sunil vs. State of Haryana,2010 (1) SCC 742 and argued that in absence of primary evidence regarding age of the victim, benefit of doubt needs to be given to the accused.