(1.) This appeal is taken up for final hearing while hearing the application for suspension of sentence in view of directions of
this court contained in order dated 16 th August 2017 (Coram :
Smt.Anuja PrabhuDessai, J.) in the wake of the fact that the
appellant/accused is in custody since the year 2014.
(2.) By this appeal, the appellant/accused is challenging the judgment and order dated 24 th July 2015 passed by the
learned Special Judge, Ratnagiri, convicting the appellant/accused
of the offence punishable under Sections 4 of the Protection of
Children from Sexual Offences Act, 2012, (hereinafter referred to
as the POCSO Act for the sake of brevity) and for sentencing him
to suffer rigorous imprisonment for 7 years apart from directing
him to pay fine of Rs.5,000/-, and in default, to undergo further
rigorous imprisonment for 3 months. The appellant/accused was,
however, acquitted of the offence punishable under Section 363 of
the Indian Penal Code.
(3.) Facts in nutshell leading to the prosecution of the appellant/accused can be summarized thus :
(a) The prosecutrix/PW2 is a resident of Village Nayari in Sangameshwar Taluka, Ratnagiri District. She was residing there along with her father PW1 Aslam Patankar and other relatives including her mother. The prosecutrix/PW2 was taking education at the High School in 8th Standard, situated at Kasba Village. On 5th August 2014, as usual, the prosecutrix/PW2 left her home for attending the school at Kasba Village by State Transport bus. The appellant/accused was already present in the bus. He threatened the prosecutrix/PW2 by uttering the words " ...[VERNACULAR TEXT OMITTED]..." meaning thereby, that he will put her to perilous situation. Because of the threat extended by the appellant/accused, the prosecutrix/PW2 became scared and got down at Sangameshwar along with the appellant/accused. At Shastripool locality of town Sangameshwar, they had snacks of Vada-pav. Then, accompanied with the appellant/accused, the prosecutrix/PW2 went to Sangameshwar Railway Station. In the vicinity, they passed time up to midnight, and in the night intervening 5th August 2014 and 6 th August 2014, the prosecutrix/PW2 along with the appellant/accused boarded the train and reached Ratnagiri in the morning hours of 6 th August 2014. By an autorickshaw, they then proceeded towards the State Transport stand and spent the day in the vicinity of the State Transport stand of Ratnagiri. In the evening hours of 6th August 2014, the appellant/accused had taken the prosecutrix/PW2 to the house of PW3 Salwa Shandar. PW3 Salwa Shandar in turn, sent the couple to the house of PW4 Diba Solkar. In the night intervening 6 th August 2014 and 7th August 2014, the prosecutrix/PW2 along with the appellant/accused resided at the house of PW4 Diba Solkar, where according to the prosecutrix/PW2, the appellant/accused had committed forcible sexual intercourse on her.
(b) Upon noticing the fact that his daughter is missing from the house, PW1 Aslam Patankar lodged report with Police Station Sangameshwar on 6th August 2014 pointing a finger of suspicion against the appellant/accused and the said report has resulted in registration of Crime No.60 of 2014 against the appellant/accused for offences punishable under Sections 363 and 366A of the Indian Penal Code.
(c) It is case of the prosecution that in the morning hours of 7 th August 2014, the appellant/accused took the prosecutrix/PW2 to the State Transport stand of Ratnagiri and by the train took her to Chiplun. After a day out at Chiplun, the appellant/accused took her back to Ratnagiri at about 8.30 p.m. At the State Transport stand, Ratnagiri, police accosted the couple and took them to Sangameshwar Police Station.
(d) Routine investigation of Crime No.60 of 2014 followed. The prosecutrix/PW2 was medically examined, so also the appellant/accused. Seizures were effected. Spot panchnama came to be recorded. On completion of investigation, the appellant/accused came to be charge-sheeted.
(e) The learned Special Judge at Ratnagiri framed Charge for offences punishable under Sections 363 and 376(2)(i)(n) of the Indian Penal Code. In the alternative, Charge for offences punishable under Sections 7 read with 8 of the POCSO Act, so also under Section 4 thereof, came to be framed against the appellant/accused. He abjured his guilt and claimed trial.
(f) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all eleven witnesses. The defence of the appellant/accused was that of total denial. He, however, did not enter in defence.
(g) After hearing the parties, by the impugned judgment and order dated 24th July 2015, the learned trial court came to the conclusion that the appellant/accused had committed penetrative sexual assault on the prosecutrix/PW2, who, at the relevant time, was below 18 years of age. The learned trial Judge found that the prosecution had failed to prove that the appellant/accused had kidnapped the prosecutrix/ PW2, and ultimately, the appellant/accused was convicted for the offence punishable under Section 4 of the POCSO Act, and he was accordingly sentenced, as indicated in the opening paragraph of this judgment. ;