The Bombay High Court, Aurangabad Bench, has partly allowed a criminal appeal filed by a 25-year-old accused convicted under multiple provisions of the IPC and the Protection of Children from Sexual Offences Act, 2012, setting aside his conviction for rape under Section 376-AB IPC and for penetrating sexual assault under Section 4(2) of the POCSO Act, while affirming his conviction for kidnapping and sexual assault.
The appellant had challenged his conviction and sentence imposed by a Special POCSO Court at Aurangabad in December 2023, which had sentenced him to 20 years’ rigorous imprisonment for rape of a minor below 12 years, along with concurrent sentences for offences under Sections 363 and 354-A IPC and Sections 4(2) and 8 of the POCSO Act.
The prosecution’s case was that the minor victim, aged 11 years at the time of the incident, was taken by the accused on a motorcycle under the pretext of an outing and later subjected to sexual assault. The FIR was lodged by the victim’s mother after the child went missing, and the victim was traced two days later.
While upholding the finding that the victim was a minor and the offence of kidnapping under Section 363 IPC was clearly made out, the Court rejected the defence argument that the victim had voluntarily accompanied the accused. Relying on the victim’s testimony, the Court held that the accused had “taken” the child out of lawful guardianship within the meaning of Section 361 IPC.
However, on the charge of rape under Section 376-AB IPC, the Court found that the prosecution had failed to establish the essential ingredient of penetration. The Court noted that the victim’s testimony, read as a whole and in light of medical evidence, did not support a finding of penetrative sexual assault. The medical officer had found no injuries or signs indicative of penetration, and the Court observed that a crucial statement suggesting forcible sexual intercourse appeared to be an answer to a leading question in examination-in-chief, without the Court’s permission.
Justice Rajnish R. Vyas held that such testimony could not be relied upon to sustain a conviction for rape, particularly when the standard of proof required was beyond reasonable doubt. Consequently, the conviction under Section 376-AB IPC and Section 4(2) of the POCSO Act was set aside.
At the same time, the Court upheld the conviction under Section 8 of the POCSO Act and Section 354-A(2) IPC, holding that the victim’s testimony clearly established sexual assault involving physical contact without penetration and sexual intent. The Court also affirmed the conviction for kidnapping under Section 363 IPC.
Accordingly, the appeal was partly allowed. The accused stands acquitted of the rape and penetrative sexual assault charges, while the remaining convictions and sentences were maintained.
Appearances
Advocate for Applicant : Mr. Ghanekar Nilesh S.
APP for Respondent No. 1 : Ms. Ashlesha S. Deshmukh
Advocate for Respondent No. 2 : Mr. Vishal A. Chavan (appointed)
