High Court

Legal Reasoning

{1} 138-24-CRIAPEALIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 138 OF 2024Taku @ Sagar Dayanand ShindeAge: 27 years, Occu.: Nil,R/o. Deulgaon Ghat, Tq. Ashti,Dist. Beed. … Appellant Versus1. The State of Maharashtra Through the Ambhora Police Station, Ashti, Tq. Ashti, District Beed.2. X Y Z … RespondentS ...…Mr. Girish V. Wani, Advocate (appointed) for AppellantMr. C.V. Bhadane, APP for Respondent No.1 – StateMr. Rupesh Jaiswal, Advocate (appointed) for Respondent No.2...... CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 06 FEBRUARY, 2025 PRONOUNCED ON : 10 FEBRUARY, 2025 JUDGMENT :- 1.Appellant/convict takes exception to the judgment and orderdated 27.03.2023 passed by learned Special Judge (POCSO), Beed inSpecial POCSO Case No.74 of 2021 recording guilt of the appellantfor offences under Section 376(AB), 376(2)(f) and 377 of the IndianPenal Code read with Section 6 of the POCSO Act. {2} 138-24-CRIAPEALPROSECUTION CASE IN BRIEF 2.Ambhora Police Station, District Beed registered the crimebearing No.150 of 2022 for above offences on report received fromthe mother of the victim, who gave information to police that hervictim daughter aged 7 years was sexually ravished and exploited bythe present appellant, who happens to be her uncle. On above report,crime was registered, investigated and appellant was chargeheetedfor the above offence and finally tried by learned Special Judge, whoexamined as many as 11 witnesses, and on appreciating oralevidence of witnesses and on appreciating documentary evidenceapprising of FIR, medical papers, birth certificate, etc., learned trialJudge accepted the prosecution story and recorded guilt holdingappellant guilty for above offences. Feeling aggrieved by the judgment and order of conviction,instant appeal has been preferred on various grounds mentioned inthe appeal memo. SUBMISSIONSOn behalf of appellant :3.Learned counsel for the appellant pointed out that there isfalse implication. That, there is no cogent, reliable, trustworthy {3} 138-24-CRIAPEALevidence. That, report is lodged on information allegedly given by themother of the victim. He pointed out that, on the alleged dated, therewas some ritual of 7th day of death of grandfather of victim. That,almost 200 guests had gathered, but none of them has beenexamined, nor did any of them report the incident to police. Learnedcounsel pointed out that, victim was playing for the entire day. That,there is no prompt reporting. That, there is dispute for giving land forcultivation, and as such, there is possibility of false implication. Forall above reasons, he questions the findings and conclusion reachedby the learned trial Court and prays to allowed the appeal by givingbenefit of doubt. On behalf of State :4.Learned APP, who strongly opposed pointed out that, vicitimwas barely of 7 years of age. That, the present appellant is thepaternal uncle. That, he allegedly took the victim onto his lap andinserted his penis into her anus. That, there are blood stains in theleggings of the victim. That, immediately after the incident, victimhas reported to her mother and she is also noticed the blood stains.That, police have duly approached and registered the crime. That,victim was examined medically. Therefore, there is statement of both {4} 138-24-CRIAPEALinformant-mother as well as victim and other witnesses. That, theirevidence has remained intact, undisturbed or undiminished. That,there is nothing to suggest false implication and as charges aresquarely proved, learned APP submits that there no need to disturbthe sound and reasoned judgment recorded by the learned trialJudge.On behalf of Victim : 5.Learned Counsel appointed to represent the victim alsostrongly objected. According to him, victim was proved to be 7 yearsof age. Even according to him, medical evidence is supports theprosecution case. That, grave offence has been committed on minorby the appellant, who is none other than paternal uncle. At the end,he supports findings and reasons assigned by learned trial Court inconvicting appellant. STATUS AND ROLE OF PROSECUTION WITNESSES6.In support of its case, prosecution has examined as many asfive witnesses. Their role and status and the sum and substance oftheir evidence can be summarized as under : PW1Seema is mother of the victim. At Exhibit 26/C, she deposed asunder as under :“1]I am residing with my husband, in-laws and my children {5} 138-24-CRIAPEALat the above address. Victim is my daughter. At the time oflodging FIR my daughter was 7 years old and she was studyingin 2nd standard. I know the accused he is the cousin brother ofmy husband. The name of father of accused is DayanandShinde. Accused and his family members are our neighbour.Date of birth of my daughter i.e. victim is 04/02/2014. Sheborn at Cantonment Hospital, Ahmednagar at my maternalhome. After the birth of my daughter, we have registered herbirth with the Cantonment Municipal Council, Ahmednagar.During the investigation, I have handed over the original birthcertificate to police. Now, I am shown the original birthcertificate of my daughter, issued by Cantonment MunicipalCouncil, Ahmednagar, in which date of birth of my daughter ismentioned as 04/02/2014, it also appeared my name and myhusband and its registration dated is 11/02/2014. Its contentsare true and correct. It is marked as Exh. 27.2]The incident happened with my daughter on05/06/2021. On that day, there was post death 7 day of mygrand-father-in-law. All the relatives and other guest worearrived at our home. The sister of accused along with her twosmall children were also came. My daughter/victim went at thehouse of accused for playing with the children of sister ofaccused. At about 2:30 p.m., my daughter/victim returnedhome. She asked me change her legin. I had seen blood stain onher legin and leg. I took my daughter/victim in the room wheremy mother-in-law and sister-in-law was sitting. My mother-in-law inquired with my daughter/victim and they asked herwhere she went. My daughter/victim informed that she went toplay with the toddler of Chakuli. She informed that accused towhom victim called Thaku Kaka removed her pant, he made hersit on his thigh and he inserted his penis in her anus. She washaving pain and she was crying. Therefore, I along with mymother-in-law and my husband went at the house of accused. {6} 138-24-CRIAPEALWe went at the house of accused he was not present there.Meantime some one called the police, therefore, police came toat our village. Thereafter, police send us at the GovernmentHospital Ahmednagar, for giving treatment to mydaughter/victim. Doctor had done medical examination of mydaughter/victim in my presence. After medical examination mydaughter/victim, we went to police station Ambhora, TalukaAshti, District Beed. At police we lodged the complaint againstthe accused. Now, I am shown the complaint, is the same. It wasrecorded as per my say. It bears my signature. Its contents aretrue and correct. It is marked as Exh. 31. Now, I am shown theproforma of FIR, is the same. It bears my signature. Its contentsare true and correct. It is marked as Exh. 31/A.3] After lodging the FIR, under panchanama I have handedover clothes of my daughter/victim which she wore at the timeof incident. I am able to identify the cloths if shown to me. Now,I am shown black and brown colour legin is the same. It ismarked as article-1. Now, I am shown one orange blue and offwhite colour big cheks frock is the same. It is marked article-2.4] Next day, police came to our village to draw the spotpanchanama. I have shown the place to the police. Policerecorded my supplementary statement on 07/06/2021.Thereafter, police also referred me before the Id. Magistrate forrecording my statement. My statement came to be recordedbefore the Magistrate as per my say. Now, I am shown mystatement recorded before the Magistrate Court at Ashti. It wasrecorded as per my say. It bears my signature. Its contents aretrue and correct. It is marked as Exh. 32. On 07/06/2021,police recorded the statement of my daughter/victim in mypresence. Accused is the same, present before the Court sittingin the dock. {7} 138-24-CRIAPEALPW2 Victim deposed at Exhibit 35 as under :“1]At present I am in 3rd standard. I am residing with myparents, grand-mother and brother. I like to play with doll andutensils. At the time of incident, I was in 2nd standard. On theday of incident, there was post death 7th day of my grand-fatherto whom I called Dada. On that day all the guest were came atour house. In the afternoon, I went to play with Pillya. At thattime Taku Kaka (Accused) called me for reading book. I went atthe house of Taku kaka. At that time beside me and Taku kakano one was there. Taku kaka removed my pant. He alsoremoved his pant and he put his place of urinal in my anus. Ihad a pain Therefore, I was crying. Thereafter, I returned to myhome. My mother asked me the reason of crying and took me tomy grand-mother. Mummy and my grand-mother took smell ofmy pant. Then, both of them went at the house of Taku kaka.2]Police madam inquired with me. Police also referred meat Nagar hospital for examination. Police also referred mebefore Ashti Court for recording my statement. Judge Sir,inquired with me and recorded my statement. Accusedproduced through V.C. Victim identified the accused.”PW3 Bharat Gavande has acted as pancha to spot panchanamaExhibit 38 :“1]I am serving as teacher in Z. P. Primary School, DeolgaonGhat. Taluka Ashti. On 06/06/2021, I was present at my house,at that time I have received call from PSI Lokhande. He askedme to remain present at the spot. Thereafter, I went toVitthalwadi Vasti. At that time, another panch Changdeo Shindewas also present. IO along with police officer, informant alongwith her daughter/victim were also present. Informant showedthe spot. The spot of incident is the house of Dayanand Shinde. {8} 138-24-CRIAPEALThe said room was locked, police opened the said lock in mypresence. We entered in the said house. There was kobaflooring, roof of the said room was of tin shade. There wereblood stains on the koba flooring. Police socked said bloodstains in the cotton cloth and seized and sealed in front of us.Accordingly, police prepared spot panchanama in our presence.After going through the contents I have signed on the saidpanchanama. Now, I am shown the said panchanama, is thesame. It bears my signature at serial no. 1, at serial no. 2 itbears the thumb impression of another witness and countersigned by IO. Its contents are true and correct. It is marked asExh. 38.” PW4Krushna has acted as pancha to seizure of chothes of victim aswell as accused vide panchanama Exhibits 45 and 49respectively. He deposed as under :“1]I am working as a driver at PWD, Asht. On 05/08/2021, dueto Covid-19 my vehicle was on requisition, therefore, I was attachedto Ambhora Police Station. On 05/06/2021 at about 9:00 to 9:30.. police seized the cloths of victim girl in my presence. Theрмmother of victim girl handed over the said clothes to Police. It wasone legin and one frock. I am able to identified the said clothes ifshown to me. Now. I am shown black and brown colour legin is thesame. It is already marked as Article-1. Now, I am shown one orangeblue and off white colour big checks frock is the same. It is alreadymarked Article-2. Police sealed the said clothes in one big envelopand sealed the same. Police affixed the label of signature of wepanchas on the said envelop Accordingly, police drawn thepanchanama in my presence. Now, I am shown label affixed on theenvelop of Article-1/A, is the same. It bears my signature at serialno. 1. It is marked as Exh. 43. Now I am showm label affixed on theenvelop of Article-1/B, is the same. It bears my signature at serial {9} 138-24-CRIAPEALno. 1. It is marked as Exh. 442] Thereafter, police prepared panchanama and took mysignature on the panchanama. Now, I am shown said panchanama,is the same. It bears my signature at serial no.1. Signature ofanother panch Navnath Bhoje is at serial no. 2 and countersigned byIO. It also bears thumb impression of, accused. Its contents are trueand correct. It is marked as Exh. 45.3]On 06/06/2021, I was also attached to Ambhora PoliceStation. The relatives of the accused brought the clothes. Whateverthe clothes accused wore he changed the said clothes and handedover the clothes to the Police in my presence. It was one T shirt,night pant and one underpant having red colour stains. Accordingly,police prepared the panchanama. Now, I am shown one sky bluecolour T shirt, is the same. It is marked Article-3, Police seized thesky blue colour T shirt in one big envelop and affixed the label ofsignatures of we panchas on it. Now, I am shown the label affixedon the envelop of Article-3. It bears my signature at serial no.1. Itscontents are true and correct. It is marked as Exh. 46. Now, I amshown one black colour night pant. which was seized in mypresence, is the same. It is marked Article-4. Police seized one nightpant in one big envelop and affixed the label of signatures of wepanchas on it. Now, I am shown the label affixed on the envelop ofArticle-4. It bears my signature at serial no.1. Its contents are trueand correct. It is marked as Exh. 47. Now, I am shown purple colourunderpant with red colour stains, which was seized in my presence,is the same. It is marked Article-5. Police seized the one purplecolour underpant with red colour stains pant in one big envelop andaffixed the label of signatures of we panchas on it. Now, I am shownthe label affixed on the envelop of Article-5. It bears my signature atserial no.1. Its contents are true and correct. It is marked as Exh. 48.4] Thereafter, police prepared panchanama and took mysignature on the panchanama. Now, I am shown cloth seizure {10} 138-24-CRIAPEALpanchanama of accused, is the same. It bears my signature at serialno.1. Signature of another panch Navnath Bhoje is at serial no. 2and countersigned by 10. It also bears thumb impression of accused.It's contents are true and correct. It is marked as Exh. 49. Accused isthe same present before the Court who has handed over the clothesto Police.”PW5 Dr. Sachin Solat, was the Medical Officer, Government Hospital,Ahmednagar, who had conducted the medical examination ofvictim and prepared medical report and MLC certificate atExhibits 56 and 57 respectively.“1]My education qualification is MBBS MD DCH. Since 2016, Iam attached to Government Hospital, Ahmednagar. On 05/06/2021I was on duty at Casualty in Government District Hospital,Ahmednagar. On 05/06/2021, LPC Khandagale attached to AmbhoraPolice Station she brought victim with her and also brought oneletter for examination of 7 years old victim. Now, I am shown thesaid letter is the same. It addressed to our Hospital. It bears myacknowledgment. Its contents are true and correct. It is marked asExh. 54.2]The victim was also accompanied with her mother. Victimbrought before me at 4:30 p.m. Accordingly, I have prepared theOPD paper of the victim. Now, I am sown the O. C. of OPD paper. Itis vide MLC No. 2750. It bears my signature. Its contents are trueand correct It is marked as Exh. 55.3]After obtaining the consent of the mother of victim. I haveexaminer her. Victim narrated the history accused Taku removed herpant, he also pulled down his pant a little. He made her sit on hislap. He put his penis in her anus. {11} 138-24-CRIAPEAL4] I have called on call Gynecologists Dr. Ghugare and surgeonDr. Gajanan Wangal. He was also with them at the time ofexamination of victim. I have examined victim along with both thedoctors in presence of female nurse. I have obtained the consent ofmother by taking her signature and thumb impression of the child. Ihave noted down the identification mark of the victim girl.5]Thereafter, I took her medical history. I have found that shehas not yet started her menses. She had received all her vaccinationtill 5 years of her age. Thereafter I have noted down the history ofsexual violence. The time of incident 2:30 p.m. at Devalgaon Ashti.Name of assailant told by child Sagar Dayananad Shinde to whomshe was called as Taku Kaka. The age of the accused is 24 years andhe is her paternal uncle. Thereafter, victim narrated the history asstated above. Uncle lured her by showing mobile and book. In detailgirl told that there was penetration in the anus. But, she did notknow about emission of semen. She also told that the perpetratorexhibit his genital and accused also touched her lips, mouth andthighs. When asked she didn't know whether the condom was usedor not. After the incident victim didn't change her clothes, didn'twash the clothes. She also didn't take bath. She also didn't pass urinestools. She has taken water and food after the incident.6]At the time of examination the time since incident was 2hours. The anal bleeding was present. The child didn't have feverand other general examination was within normal parameters. Shehad mild pain and tenderness in lower abdomen. No any otherexternal injury found anywhere on the body. Blood stains was seenon the left leg on medial malleolus. On anal examination, it wasfound that there were two torn linear ulcer one at 5 o'clock positionand other at 7 o clock position The wounds were fresh. But, noactive bleeding was present at the lime of examination.7]After that we collected the swab from anus. Swab of blood {12} 138-24-CRIAPEALstain on left ankle. Blood in plain bulb. Blood in citrate bulb. Nailclipping of the girls and Vulval swab. The samples were sealed labeland handed over to Police. The clothes of the girl were also sealedand handed over to LPC Khandagale, Ambhora Police Station.8] I have given treatment to the child. I have prepare the saidreport in my hand-writing. Now, I am shown pink colour medicalpapers vide MLC no. 2750 dated 05/06/2021. Page no. 1 to 8, 11and 13 it bears my signature. Page no. 9, 10 and 12 is bears mysignature and signatures of Gynecologists Dr. Ghugare. Its contentsare true and correct. It is marked as Exh. 56 and I have given myopinion that there was no sign of physical violence, However, therewas sign suggestive of recent forceful sexual anal intercourse orviolence. Final opinion will be given after the report of FSL. I havegone through the FSL report, the blood stains in the legins of the girlbelong to accused Sagar Dayananad Shinde. My final opinion is thatthere was sexual assault on the victim by accused Sagar DayananadShinde. I have also prepared the MLC certificate of the victim girl.Now, I am shown said certificate dated 05/06/2021. It is in myhand-writing. It bears my signature. Its contents are true and correct.It is marked as Exh. 57.’ PW6Rahul Lokhande, PSI, who has recorded the complaint of theinformant.PW7 Dr. Sachin Palwade, was the Medical Officer, PHC Dhamangaon,who had conducted the medical examination of the accusedand prepared medical report at Exhibit 62.“1]My education qualification is MBBS. Since 29/01/2021 to30/06/2021, I am attached to PHC, Dhamangaon, Taluka Ashti. On07/06/2021, on was in 24 hours duty from 9:00 a.m. to next day {13} 138-24-CRIAPEAL9:00 a.m. On 07/06/2021, I have received letter from AmbhoraPolice Station dated 06/06/2021 for medical examination of accusedTaku @ Sagar Dayanand Shinde. Now, I am shown the said letter, itbears my endorsement. Its contents are true and correct. It is markedas Exh. 61.2]Accused brought before me on 07/06/2021 at about 12:30afternoon by API D. B. Kuklare in CR No. 150/2021 lodged withAmbhora Police Station. First I have obtained the consent of accusedby taking his signature in presence of witness. Thereafter, I havenoted down identification mark of the accused mole on the left onthe second finger and mole on the nose on the left side.3]I have done the physical examination of the accused. I havedone the local examination of genitals of the accused. I haveexamined his penis. I have verified the history of circumcision. I haveexamined his scrotum on which I have found scrotum is pendulous.Both the testis present in his scrotum. I have also noted the injury onthe prepuce of penis which is highly suggestive of forcefulintercourse.4]I have prepared this medical report of the accursed in myhand-writing. It bears my signature. Its contents are true and correct.It is marked as Exh. 62.5]I have given provisional opinion after examining the SagarShinde that there is nothing to suggest that male examining is notcapable for performing sexual activities. My final opinion is alsosame.6]After examination, I have collected semen sample, pubic hairsample, nail sample and blood sample of the accused. Now, lamshown the OPD paper in which I have mentioned about the samplecollection. It bears my signature. Its contents are true and correct. Itis marked as Exh. 63. Accused is the same present before the Court towhom I have examined on 07/06/2021.” {14} 138-24-CRIAPEALPW8Dnyaneshwar Kuklare, API, is the first Investigation Officer.PW9Rahul Gurkhude, Police Head Constable, is the carrier, whosubmitted the blood samples of accused at FSL Aurangabad.PW10Salam Ahmed, Police Naik, is the carrier API, who has depositedthe clothes of victim and accused along with their samplescollected by medical officer.PW11 Rani Sanap, PSI, is the first Investigation Officer.ANALYSIS7.Witnesses can be grouped in the following categories: First set - informant-mother and victim;Second set comprising of Medical experts, and; Third set comprising of panchas, police official, etc. Their examination in chief has already been reproduced inaforesaid paragraphs.8.Here, considering the nature of the accusations and charges,the testimony of the informant-mother, and particularly the medicalexperts, is of significant importance. However, before adverting totheir evidence, at the outset, it needs to be ascertained whetherprosecution has discharged burden of framing the victim to be minor {15} 138-24-CRIAPEALas there are allegations of POCSO Act.9Here, informant-mother while deposing had placed on recordvery original birth certificate issued by the Health Department,Government of Maharashtra and it is marked as Exhibit-27. It is inoriginal form. The date of birth of victim is shown as 04.02.2014, andalleged occurrence is of 05.06.2021. Therefore, taking both suchdates into consideration, victim is proved to be a minor on the date ofoccurrence having settled the issue of age. Now, it is to be seenwhether further the allegations of offence alleged are substantiatedby credible evidence. 10.Again, we have to follow back at the evidence of victimfollowed by informant-mother. Victim is examined as PW-2, and in her evidence at Exhibit-35/C, she has stated that she is in 3rd standard, and at the time of theincident she was in 2nd standard. She testified that, on the day of theincident, it was the seventh day after the death of her grandfather,and as such, all the guests had gathered at their house. She claimsthat, in the afternoon, she went to play with others. At that time,present appellant to whom victim called Taku Kaka called her forreading book. She went in his house. She deposed that no one was {16} 138-24-CRIAPEALpresent there except her uncle. He removed her pant, he alsoremoved his pant. She claims that he put his male organ in her anus.That, there was pain, therefore, she cried. She returned home andwhen her mother asked her the reason of crying. Both her mother aswell as grandmother took smell of her pant and they went to thehouse of accused. The victim is subjected to cross-examination. In paragraph 3 itis brought on record that, she was playing with others. She deniedabout any quarrel between anyone or even any quarrel betweenelders. Then, she answered in paragraph 4 that after the programme,police had come to the house and had conversation with her. Shetotally denied that her father and mother told her what to tell thepolice. Rest is all denial. 11.PW-1 informant-mother, is examined at Exhibit-26/C. She alsostated that the incident happened to her daughter on 05.06.2021.There was 7th post death ritual of her father-in-law. She claims that,at 2:30 p.m., her daughter returned home, who asked to change herleggings. She claims that, she saw blood stains on her leggings andleg, and therefore, she and her mother-in-law as well as sister-in-lawinquired with the victim as to whether she had been. Her daughterallegedly told her that accused to whom she called Thaku Kaka {17} 138-24-CRIAPEALremoved her pant and inserted his penis in her anus. She was havingpain and she was crying, and therefore, victim was taken to thehouse to the appellant, but he was not present. Meanwhile, policehad come and recorded her say, the same is identified by her atExhibit-31.Above witness is also extensively cross-examined. Relevantcross is on aspects of function held on 7th day of death of her father-in-law, strength of witness arriving, timing of having lunch, distanceof house of accused from the said place, and whether he owns land.She denied that agricultural land which they were cultivating ownedby Dagdu Shinde, and the said Dagdu Shinde asked to return theland. Then, she is questioned when police arrived and whenpanchanama was drawn and on what time the statement of thevictim was recorded. Here, cross is also by way of question andanswer form as to whether the lady officer came to record thestatement of the victim, whether victim was stating anything or not.However, to such question, she answered ‘yes’, but that clarified asshe was in a frightening condition. Rest is all denial.Therefore, evidence of victim as well as mother, on the aspectof victim being taken by appellant to his house, he inserting his maleorgan in her anus and consequently she bleed, has virtually remained {18} 138-24-CRIAPEALintact.12.On above lines, now it is to be seen whether there is medicalevidence suggesting an occurrence. On this point evidence of PW-5Dr. Sachin Solat is relevant. In his evidence at Exhibit-53/C, hedeposed about victim came with her mother as well as LPC attachedto Ambhora Police Station and on obtaining consent of mother, henoted history, which was reported by victim that, the appellantremoved her pants, also pulled down his own pants, made her sit onhis lap, and inserted his penis into her anus. Therefore, this medicalexpert claims to have called Gynecologists Dr. Ghugare and surgeonDr. Gajanan Wangal, and victim was examined by both the doctors.He again stated that victim narrated history in the presence of boththese doctors. In paragraph 6 of his testimony, he stated that, he noticed analbleeding, and there was mild pain and tenderness in lower abdomen.There were blood stains appeared on the left leg, and on analexamination, it was found that there were two torn liner ulcer one at5o’ clock position and other at 7o’ clock position, and said woundswere fresh. Necessary swab of anus as well as blood along with nailclipping of the girls and vulval swab were collected. The said sampleswere sealed label and handed over to police. {19} 138-24-CRIAPEALHe has opined in paragraph 8 that, treatment was given and tothe child, and after seeing the FSL, in his opinion the blood stains onthe leggings of the girl were of the present appellant, and as such, heissued a final opinion that there was sexual assault on the victim, andhe identified the MLC certificate at Exhibit-57.Though the above medical expert is cross-examined, there is aquestion whether the victim herself narrated the history, and heanswered in affirmative, but further stated that, it was also reportedby grandmother. He virtually denied the injuries on anus to bepossible due to constipation. It is also brought in cross that, clothes ofthe victim were handed over to the police, and the same were sealed.13.Another medical witness is PW-7 Dr. Sachin Palwade, who hasexamined the accused and he claims that, on physical examination,he noticed injury on the prepuce of penis, which is highly suggestivethe forceful intercourse. Examination of accused was done on07.06.2021 itself. He also opined that accused was very muchcapable of performing sexual activities. Nothing adverse has beenbrought in cross of this doctor. Rest of the witnesses are police officials, who has deposedabout participating in investigation in various capacities. {20} 138-24-CRIAPEALCONCLUSION14.Therefore, on re-appreciation of above evidence, there iscredible evidence of both victim as well as her mother. There isprompt lodgment of complaint, medical evidence suggesting sexualassault. There is confirmation of the same from medical experts.There are injuries on the person of victim as well as accused.Therefore, when all necessary ingredients are available in the form oforal as well as credible documentary evidence in the form of medicalevidence, the view taken by the learned trial Judge is the onlypossible view that could emerge even on the re-appreciation. Pointsraised in argument have no merit and substance, or any foundation.Resultantly, there being no merit in the appeal, appeal deserves to bedismissed. Accordingly, I proceed to pass following order :ORDER(I) Criminal Appeal No.138 of 2024 stands dismissed.(II)Fees of the learned Advocate appointed to representrespondent no.2 is to be paid through the HighCourt Legal Services Sub-Committee, Aurangabad,as per Rules. ( ABHAY S. WAGHWASE ) JUDGE S P Rane