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Justice Prithviraj K Chauhan of Bombay HC dismissed an appeal that challenged the judgement passed by the Special Judge under the POCSO Act. The appellant was convicted under Section 342 of the Penal Code, 1860.
In the present case, a 5 ½ year old girl child had been playing outside with a small boy. It was during this time that the appellant took the little girl to his house on pretext of showing her songs in his mobile. It was PW3 (eye witness) who peeped into the room of the appellant to see the victim lying on the floor and the appellant on top of her. The victim herself stated that after entering the room, she was made to remove her slacks and made to lie down on the floor while the appellant put his penis inside her anus. The identity of the victim was concealed as per the Section 33(7) of POCSO Act. The Special Judge after hearing the case convicted the appellant.
The appellant challenged the order while referring to the medical report that no male DNA had been found in vulval or anal swab of the victim. The counsel on behalf of the victim argued that it was not necessary to refer to the medical report since the appellant had been stopped right before the act. The victim had been betrayed by someone whom she referred to as dada. The appellant had been intending to commit an offence as provided in Section 3 of the aforementioned Act. The counsel for the victim argud that the victim was in the fiduciary capacity of that appellant and it was not a case which required any leniency. The HC noted that the fact that the appellant had already begun the act and was only stopped due to the timely intervention of the PW3. The HC stated that convicted people such as the appellant should be mercilessly and inexorably punished. The HC upheld the judgement of the Trial Court and stated that no interference was warranted.
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