Criminal Appeal No. 143 of 2021 · The High Court
Case Details
2025:BHC-AUG:5137-DB Cri.Appeal No.143/2021:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.143 OF 2021 WITHCRIMINAL APPLICATION NO.2443 OF 2021Maroti s/o Madhav Tikekar,Age 40 years, Occ. Labour,R/o Savergaon Mal, Tq. Bhokar,Gandhewar Colony, Bhokar,Tq. Bhokar, Dist. Nanded… APPELLANTVERSUS1.The State of MaharashtraThrough Police Station, Bhokar,Tq. Bhokar, Dist. Nanded(Copy to be served on the Public Prosecutor, Bombay High Court, Bench at Aurangabad)2.X Y Z … RESPONDENTS.......Ms Ashwini A. Lomte, Advocate for appellant (appointed)Mrs. S.N. Deshmukh, A.P.P. for respondent No.1. Mr. Satej S. Jadhav, Advocate for respondent No.1 (appointed)....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 20th January, 2025Date of pronouncing judgment : 21st February, 2025JUDGMENT (PER : R.G. AVACHAT, J.) : The challenge in this appeal is to a judgment and
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Cri.Appeal No.143/2021:: 2 ::order of conviction and consequential sentence, passed by theCourt of Additional Sessions Judge (Trial Court), Bhokar,District Nanded, in Special (POCSO) Case, No.7/2019. Thematerial part of the impugned order of conviction and sentencereads thus : 01) Accused Maroti S/o Madhav Tikekar, Age 40 YearsOccu. Labour R/o Savergaon Mal, Tq.Bhokar at presentGandhewar colony,Bhokar Tq.Bhokar Dist. Nanded ishereby convicted u/sec. 235(2) of Cr.P.C. for theoffences punishable under sections 376(2)[f][i][j],354(A)(1), 323, 504 and 506 of Indian Penal Code andSections 4 and 6 of The Protection of Children fromSexual Offences Act, 2012.02) Accused Maroti S/o Madhav Tikekar is herebyconvicted u/sec. 235(2) of Cr.P.C for the offencepunishable under sections 376(2)[f][i][j] and he issentenced to suffer Life Imprisonment which shall meanthe remainder of that person's natural life and to pay fineof Rs. 5,000/ (Rs. Five thousand only). In default of finehe shall undergo simple imprisonment of 6 months.03) Accused Maroti S/o Madhav Tikekar is herebyconvicted u/sec. 235(2) of Cr.P.C for the offencepunishable under section 354(A)(1) and he is sentencedto suffer one year Rigorous Imprisonment and fine ofRs. 2,000/ (Rs. Two thousand only). In default of fine heshall undergo simple imprisonment of 3 months.04) Accused Maroti S/o Madhav Tikekar is herebyconvicted u/sec. 235(2) of Cr.P.C for the offencepunishable under section 323 of Indian Penal Code andhe is sentenced to suffer 6 months RigorousImprisonment and fine of Rs. 500/- (Rs. Five hundredonly). In default of fine he shall undergo simple Cri.Appeal No.143/2021:: 3 ::imprisonment of 1 month. 05) Accused Maroti S/o Madhav Tikekar is herebyconvicted u/sec. 235(2) of Cr.P.C for the offencepunishable under section 504 of Indian Penal Code andhe is sentenced to suffer one year RigorousImprisonment and fine of Rs. 1,000/ (Rs. One thousandonly). In default of fine he shall undergo simpleimprisonment of 3 months.06) Accused Maroti S/o Madhav Tikekar is herebyconvicted u/sec. 235(2) of Cr.P.C for the offencepunishable under section 506 of the Indian Penal Codeand he is sentenced to suffer one year RigorousImprisonment and fine of Rs.1,000/ (Rs. One thousandonly). In default of fine he shall undergo simpleimprisonment of 3 months.07) Accused Maroti S/o Madhav Tikekar is herebyconvicted u/sec. 235(2) of Cr.P.C. for the offencepunishable u/sec.4 and 6 of The Protection of Childrenfrom Sexual Offences Act, 2012, as offence undersection 6 is aggravated and major offence therefore, I amgiving punishment in major offence under section 6 ofPOCSO Act, and accused is hereby sentenced to sufferLife Imprisonment and shall pay fine of Rs.5000/-[Rs.Five thousand only] In default of fine he shallundergo simple imprisonment of 3 months.08) All above substantive sentences shall run concurrently.09) Accused is punished for life imprisonment which shallmean imprisonment remainder of that person's naturallife, therefore question does not arise to give set offunder section 428 of Cr.P.C to the accused.2.The facts giving rise to the present appeal are asfollows :- Cri.Appeal No.143/2021:: 4 :: The appellant married P.W.2 - “S” about 10 – 15years before March 1, 2019. The couple was blessed with agirl child, who was little over 14 years of age at the materialtime. She is P.W.1 – “R” (name withheld). She was a studentof 8th Standard. The appellant, his wife and the victim wouldreside together. His wife was not keeping well psychologically.The appellant was said to be addicted to liquor. For twomonths next before March 1, 2019, the appellant wouldbehave with the victim inappropriately whenever his wife usedto be away from their house. He would touch herinappropriately.3. On March 1, 2019, the appellant told his motherthat the doctor had asked him to bring cum from his daughter’sprivate part for treating his cough. By little past 9.30 p.m., allof them went to sleep. The victim slept on a cot. Her parentsslept on the floor. Thereafter, the appellant, in undressedcondition, slept on the cot on which the victim was sleeping.He removed the clothes on the person of the victim andcommitted sexual intercourse. He beat up her mother andthreatened both of them of dire consequences if the matter Cri.Appeal No.143/2021:: 5 ::was reported to police. 4.The victim decided to relate the incident to herteacher. As the examination of 10th and 12th Standard wereunderway, she could not meet her Teacher. On 12 March,when she got the appointment, she related everything to herHead Mistress and other teachers as well. On theirsuggestion, she approached Bhokar Police Station along withher grandfather and reported the matter. It was registered asFirst Information Report (F.I.R. - Exh.9).5. A crime vide C.R. No.0052/2019 was registered foroffences punishable under Sections 376(2)(f)(i)(j), 354(A)(1),323, 504 and 506 of the Indian Penal Code and Sections 4, 6,8 and 10 of the Protection of Children from Sexual OffencesAct, 20126.The crime was investigated. Crime scenepanchanama was drawn. The appellant was arrested. Both,the appellant and the victim were medically screened. Clotheson the person of both of them were seized. All the seizedarticles were submitted to Forensic Science Laboratory (FSL). Cri.Appeal No.143/2021:: 6 ::Statements of persons acquainted with the facts andcircumstances of the case were recorded. Upon completion ofthe investigation, the appellant was proceeded against by filinga charge sheet.7.The Trial Court framed the charge. The appellantpleaded not guilty. His defence was of false implication.According to him, his wife was not keeping psychologicallywell. Both, his wife and the daughter (victim) were residingalong with the appellant’s in-laws. Just four months before, thewife resumed cohabitation with him. The daughter (victim) toojoined them. The grandfather wanted his daughter to havedissolution of her marriage. He and others had even assaultedthe appellant. The appellant intended to lodge police reportagainst him. With a view to avoid such prosecution, a falsereport has been lodged at the behest of his father-in-law.8.To bring home the charge, the prosecutionexamined 10 witnesses and produced in evidence certaindocuments. On appreciation of the evidence in the case, theTrial Court passed the order impugned herein. Cri.Appeal No.143/2021:: 7 ::9.Heard. The learned Advocate appointed torepresent the appellant would submit that, there was delay ofnot less than 12 days in reporting the matter to the police. Thevictim was subjected to medical screening 20 days after theincident. The medical evidence and Chemical Analyser’sreport do not reinforce the prosecution case. We were takenthrough the cross-examination of the victim and her mother toindicate as to how the appellant’s father-in-law had influencedthe victim to lodge the report against him.10.It was also pointed out that the appellant’s wife andthe victim too did repent for filing of a false report. The same isevident from number of letters written by the victim to herfather post conviction, and the affidavit filed by the victim’smother.11.We are conscious of the fact that, post convictionmaterial would hardly have any bearing on the fate of theappeal. The learned Advocate ultimately urged for allowing theappeal.12.Learned A.P.P. would, on the other hand, submit Cri.Appeal No.143/2021:: 8 ::that, the victim was just 14 years of age. The appellant hadthreatened to kill her if she made the incident public. Since theexaminations were going on, the victim could not meet theSchool Head Mistress or other Teachers for about 10 – 11days. No sooner she got their appointment, she relatedeverything to them. Our attention was also drawn to acircumstance during recording of the victim’s evidence. Shewas shy of relating as to how the appellant did the alleged act.She, therefore, gave it to the Trial Court, in writing. The TrialCourt observed the demeanor of the victim. She was weeping.The learned A.P.P. then took us through the evidence of thevictim’s mother and Teachers as well, to submit that theevidence of the victim has been duly corroborated. The schoolrecord (Exh.48) indicates the victim was a child at the materialtime. The medical evidence was also relied on to indicate thesame to have been consistent with the prosecution case. Onthe ground of delay in lodging of the F.I.R., the learned A.P.P.has relied on the judgment of the Apex Court in case of Stateof H.P. Vs. Shree Kant Shekari, AIR 2004 SC 4404, whereinit has been observed :- Cri.Appeal No.143/2021:: 9 ::“In the instant case, teacher allegedly raped hisstudent. She did not disclose the incident toanybody due to threats given by accused to her.Her mother knew about the incident when thevictim girl became pregnant. FIR was lodgedthereafter. The unusual circumstances in this casesatisfactorily explained the delay in lodging of theFirst Information Report. In any event, delay perse is not a mitigating circumstance for the accusedwhen accusations of rape are involved. Delay inlodging First Information Report cannot be usedas a ritualistic formula for discarding prosecutioncase and doubting its authenticity. It only puts theCourt on guard to search for and consider if anyexplanation has been offered for the delay. Once itis offered, the Court is to only see whether it issatisfactory or not. In a case if the prosecutionfails to satisfactorily explain the delay and there ispossibility of embellishment or exaggeration in theprosecution version on account of such delay, it isa relevant factor. On the other hand satisfactoryexplanation of the delay is weighty enough toreject the plea of false implication orvolunerability of prosecution case. As the factualscenario shows, the victim was totally unaware ofthe catastrophe which had befallen to her. Thatbeing so, the mere delay in lodging of FirstInformation Report does not in any way renderprosecution version brittle.” The learned A.P.P. ultimately urged for dismissal ofthe appeal.13.The learned Advocate appointed to represent thevictim, in the first breath, would submit that, appreciation of theevidence may indicate the offence might have been Cri.Appeal No.143/2021:: 10 ::committed. He would submit that, the prosecution, to bringhome the charge, was required travel a long from “may” to“must”. He would then submit that, subsequent repentance bythe victim or her mother would be of little consequence on themerits of the matter. He then supported the prosecution case.It, however, appears that, the victim and her mother want theappeal to be allowed.14.Considered the submissions advanced. Perusedthe judgment impugned herein. Let us advert to the evidenceon record and appreciate the same. 15.P.W.1 “R” testified that, her mother (P.W.2 “S”) wasnot keeping mentally well since she was one year old.Whenever her mother used to be out of house, the appellant(father) would touch her person improperly. He would abuseher in filthy language. It was March 1, 2019, she returnedhome from school. She took lunch. Did some study. In theevening by 9.30 p.m., her parents and she went to sleep. Shewent to sleep on the cot. Parents slept on the floor. Theappellant came on her cot. He told her that doctor had askedhim to bring liquid (cum) from her private part. Since her
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Cri.Appeal No.143/2021:: 11 ::mother was mentally ill, she believed the appellant. He(appellant) thereafter undressed himself. He then removed herundergarment and committed sexual intercourse.16. The victim further testified that, on the followingday, she went to the school. She made attempt to disclose herteachers the incident, but for the teachers were engaged in Xthand XIIth Standard examinations. She therefore, met ShaikhMadam, Manjramkar Madam and Bembare Madam on 11March. She disclosed them the incident. On the following dayi.e. on 12 March, she related the Head Mistress (Patil Madam–P.W.5) everything. On the instructions of the Head Mistress,she took her maternal grandfather to the school on the nextday and then went to the Police Station and lodged the report(F.I.R. Exh.9).17.During her cross-examination, she admitted that,her mother was not mentally keeping well since beginning.Her maternal grandfather was residing at Motinagar, Bhokar.Whenever there used to be quarrel between her parents, theyused to reside with her grandfather. She admitted that, theappellant and her grandfather were not on talking terms. She Cri.Appeal No.143/2021:: 12 ::further testified that, the appellant would tell her grandfatherthat he wanted to contract second marriage since wife was notkeeping sound mind. She went on to state that, hergrandfather, therefore, threatened the appellant that he wouldsee how her performs second marriage (implied threat). Shedenied that, 15 days before the incident, quarrel took placebetween the appellant and her grandfather. She further deniedthat the appellant had been thrashed by her grandfather. She,however, admitted that, her father had suffered fracture by thattime. According to her, it was the result of fall. She deniedthat, her grandfather took her to the teacher and then to thePolice Station and lodged the report with a view to teach theappellant lesson.18.P.W.1 further testified that, just four months beforethe incident she along with her mother had started residingwith the appellant. For a few years therebefore, they wereresiding with her grandfather. Rest of the questions were inthe nature of denial of the evidence in examination-in-chief.She, however, admitted that, she attended the school regularly Cri.Appeal No.143/2021:: 13 ::since March 1 to March 11. Head Mistress Patil Madam wasregularly attending the school.19.The victim, while deposing before the Trial Court,was found to have been frightened and was shy to relate aboutthe incident. She, therefore, gave in writing as to how did theappellant commit sexual act with her. The said writing wasmarked Exh.10. It has been stated therein that the appellantremoved her undergarment and committed coitus. 20.P.W.2 “S” (mother of the victim) testified that, on thegiven day, the victim had slept on the cot. She along with herhusband, were sleeping on the floor. Her husband (appellant)told her that the doctor had asked him to bring liquid (cum)from her private part. She further testified that, in the midnight,the appellant forced himself on the victim. She, therefore,abused him and pushed as well. The appellant did not allowher to go outside the house. She, therefore, could not relateher parents on cell phone. The appellant had even threatenedher if the matter is made public. Cri.Appeal No.143/2021:: 14 ::21.During her cross-examination, she admitted that,her father and the appellant were not talking with each other.The appellant had told him that he wanted to contract secondmarriage. Her father would ask her to give divorce to theappellant. She, however, did not listen to him. The appellantdid not allow her father to enter his house. Her father was nothappy with the appellant. For about four years, she wasstaying with her parents. It was only six months prior to theincident she joined her husband (appellant). She wasconfronted with a police statement to bring on record anomission therein to the effect that she did not state that due tothreat given by the appellant she could not relate the incidentto anybody. 22.P.W.3 Shaikh Farida was the Assistant teacher inthe school in which the victim was taking education. Shetestified that, the victim was waiting for 2-3 days to meet her. Itwas on March 12, the victim met her and told that her father(appellant) misbehaved with her. She further informed her thatthe appellant would inappropriately touch her person. Theappellant would ogle at her. On one day, her mother was not Cri.Appeal No.143/2021:: 15 ::at house, that time the appellant tried to embrace her.Meantime the mother came. The appellant, therefore, relievedher. She further testified that, the victim was continuouslyweeping and was unable to make proper pronouncement ofwords. She and another teacher convinced her. It is further inher evidence that, on 13, the victim related the Head Mistressand on the following day, she came with her grandfather to theschool. They told the grandfather to ensure immediate actionwas taken against the appellant.During her cross-examination, she testified that,police recorded her statement on 19 March. The rest of thequestions are in the nature of denial. 23.P.W.4 Chaya Kadam was the Head Mistress ofDigambarrao Bindu Primary School, Bhokar. She produced inevidence an extract of school admission register, wherefromthe date of birth of the victim is disclosed as 7/6/2004. Shefurther testified that, along with admission form, birth certificatewas submitted. The school admission form was filled in by thevictim’s grandmother. The document is at Exh.19. Cri.Appeal No.143/2021:: 16 ::24.P.W.5 Surekha was the Head Mistress ofManjulabai Kinalkar Girls High School, Bhokar. She testifiedthat, there were Standard X and XII examinations underway infirst week of March 2019. She was told by another teacherthat the victim was waiting for her. On March 13, when shecame to her office, the victim and other teacher ManjrekarMadam were waiting for her. The victim started weeping. Thevictim related her that, for the last 2 – 3 months, she wassuffering harassment at the hands of her father (appellant).She related her that the appellant would inappropriately touchher person. She further related her that the appellant didsexual intercourse with her as he used to do with her mother.She, therefore, asked the victim to come with her grandfatheron the following day. She accordingly came. They asked thegrandfather to take responsibility of the victim. The cross-examination of this witness is in thenature of almost denial of her evidence in examination-in-chief.25.P.W.7 Dr. Raju Tompe examined the appellant andcertified him to be potent. The certificate is at Exh.31. Cri.Appeal No.143/2021:: 17 ::26.P.W.8 Dr. Mohan was the Medical Officer. Hemedically screened the victim on March 22, 2019. Herecorded the history given by the victim (would be referredwhile appreciating the evidence). He testified that, on localgenital examination, he found hymenal injury and old healedtear at 3, 6, 7 o’clock position. Thereafter he reservedsamples of blood, pubic hair, vaginal swab and nails and itsscrapping for chemical analysis and gave provisional opinion,that his findings consistent with sexual intercourse, however,final opinion was kept pending till chemical analysis report wasavailable.APPRECIATION : 27.The aforesaid is the evidence adduced in the case.The offence is serious and if proved, is to meet with asentence of imprisonment for life, which shall mean till the endof the natural life of the culprit or which shall not be less than aperiod of 20 years. Serious is the offence, stricter shall be theproof. Cri.Appeal No.143/2021:: 18 ::28. The offence in question allegedly took place on thenight of March 1, 2019. The victim, daughter of the appellant,was at the relevant time, a student of 8th Standard. Her schooladmission form indicate her date of birth was 7/6/2024(Exh.19). The victim was below 18 years of age when theoffence took place. We have to consider her evidence in thebackdrop of certain facts namely, the mother of the victim wasadmittedly not keeping mentally well. For so many years thevictim along with her mother would reside along with thevictim’s grandfather. Just 4 – 5 months before the fateful night,the victim and her mother had started residing with theappellant. It has been admitted by the victim and her motherthat due to mental illness of the victim’s mother, the appellanthad expressed desire to contract second marriage. Theappellant’s father-in-law was strongly opposed to the saidproposal. All was not well between the appellant and hisfather-in-law. Both of them were even not on talking andvisiting terms with each other. The father-in-law had eventhreatened the appellant to ensure as to how would he contractsecond marriage. Due to mental illness of the victim’s mother,there used to be frequent quarrels between the couple. It was, Cri.Appeal No.143/2021:: 19 ::however, denied that, a few days before, the father-in-law ofthe appellant had beaten him up, the appellant therebysuffered fracture. The victim, however, stated that the father(appellant) had suffered fracture of his limb due to fall. Shefurther denied that, the appellant wanted to lodge a report withpolice against his father-in-law. She further testified that,before she came to the Court to give evidence, she and hermother had been to her grandfather’s house a day before andhe accompanied them to the Court. 29.It is the case of the victim and her mother that theappellant had threatened them of dire consequences if they gopublic with the incident. Admittedly, the victim attended theschool every day from the next day of the incident till the F.I.R.was lodged on 13 March. Meaning thereby, there is a delay of13 days in lodging the F.I.R. It is true that it was the father –daughter relationship. The victim was little over 14 years ofage. While she was in the witness box to give evidence, shewas shy of telling the facts as to the way the appellant hadbehaved with her. She even wept. She, therefore, narratedthe incident in writing. It is Exh.10. She stated the appellant to Cri.Appeal No.143/2021:: 20 ::have sexual intercourse with her. It is further in her evidencethat, the appellant would touch her person inappropriately.While the appellant committed rape of her, her mother wokeup. The mother too testified that, she pushed the appellant.He thereupon gave them threats. According to the victim andher mother, one doctor had asked the appellant to bring cumfrom the victim’s private part. 30.The victim did not relate the incident to anyone elseuntil 12 March. True, she testified that she made efforts tohave an appointment of the Head Mistress of her school torelate the incident. She further testified that, she did not getthe appointment on account of ongoing X and XII Standardexaminations. To this piece of evidence, we can only observethat the victim may be correct. 31.P.W.3 Shaikh Farida was the Assistant Teacher.She testified that, the victim met her on March 12. The victimrelated her and the other two teachers in the staff room thatshe was waiting for 2 – 3 days to get their appointment. Thevictim started crying. The victim told them that her father(appellant) would harass her. He attempted to touch her with Cri.Appeal No.143/2021:: 21 ::bad intention. The appellant would ogle at her. One day hermother was out of house. The appellant tried to embrace her.Meantime, the mother returned. The appellant, therefore,released her. The witness further testified that, the victim wascontinuously weeping and was unable to make properpronouncement of words. She and other teachers convincedthe victim. They told her that her mother would be called to theschool to inform her about the conduct and character of herhusband. 32.The evidence of P.W.3 Shaikh Farida indicates that,although the victim had all the opportunity to share with hertrauma (penetrative sexual assault), the victim did not tell herof the incident. What the victim narrated her was theappellant’s inappropriate behaviour with her (touching herperson inappropriately) and ogling at her.33.It was after two days i.e. on 14, the victim alongwith her grandfather went to the school. 34.P.W.5 Surekha was the Head Mistress ofManjulabai Kinalkar Girls High School, Bhokar. She testified Cri.Appeal No.143/2021:: 22 ::that, a day before i.e. on 13, victim met her in the company ofManjramkar Madam. On enquiry with the victim, the victimbroke down. The victim related her that the appellant hadbeen harassing her for past 2 – 3 months by touching herinappropriately. When she was asked why it was not reportedto the mother, she (victim) told that, the mother told her thatthey would have to suffer, otherwise the appellant may killthem. The victim then related the Head Mistress the appellantcommitted sexual intercourse with her. The Head Mistress,therefore, asked her to come with her grandfather.Accordingly, both, the victim and grandfather visited theschool. The Head Mistress and other two lady teachers askedthe grandfather to take the responsibility of the victim and dothe needful. It appears that, thereupon the grandfather of thevictim accompanied her to the Police Station to lodge the F.I.R.(Exh.9).35.As stated above, the F.I.R. was lodged 13 daysafter the alleged incident. In between period, the victim or hermother did not relate the incident to anyone else. When thevictim related P.W.3 Shaikh Farida on 12 March, the victim did Cri.Appeal No.143/2021:: 23 ::not relate anything about penetrative sexual assault. She onlyrelated her of having been harassed by touching her personinappropriately. It is only on 13, the victim related her HeadMistress and then on the following day, the F.I.R. was lodged.36.In spite of the F.I.R. to have been lodged on 14, it isnot known as to why the investigating officer referred the victimfor medical examination on March 22, i.e. 21 days after theincident and 9 days after registration of the F.I.R. It was P.W.8Dr. Mohan who medically screened her. The victim’s medicalexamination report is at Exh.38. The history stated by thevictim to P.W.8 Dr. Mohan reads thus : “History stated by victim . . . her father came tohome when no one was in house … father was indrunken state, talked her irrelevant and abusively.That time she tried to go from house. Heforcefully pulled inside house and undressed herand made sexual contact with her and told her ifshe says about incident to anyone he will kill herso that she lodge complaint.”37.Close reading of the history given by the victim tothe Medical Officer indicates an altogether different version.She did not relate the appellant to have had penetrative sexualassault with her. True, it was stated that the appellant had Cri.Appeal No.143/2021:: 24 ::undressed her and made sexual contact. When the victim wasvery much specific while reporting in the F.I.R. and to the HeadMistress that the incident took place on the night of March 1,and mother was at house that time, the history given by thevictim is grossly inconsistent with the victim’s oral evidenceand the averments in the F.I.R.38.The medical screening report of the victim readsthus : “Finding consistent with sexual intercourse.However, final opinion is kept pending tillchemical analysis report made available.”39.P.W.8 Dr. Mohan testified according to hisprovisional opinion. The learned A.P.P., in-charge of the case,did not advert the Medical Officer’s attention to C.A’s. report tosolicit his final opinion. The learned A.P.P. harped upon theaforesaid opinion to submit the same to be consistent with thesexual intercourse. The word, however, appearing in theopinion and the evidence of P.W.8 Dr. Mohan indicate it wasprovisional opinion and final opinion was to be given on receiptof FSL reports. Meaning thereby, the Medical Officer was not Cri.Appeal No.143/2021:: 25 ::firm of his opinion. It is a criminal case. On proof of anoffence, serious consequences follow. 40.On the question of delay, the learned A.P.P. reliedon the judgment of the Apex Court in case of State of H.P. Vs.Shree Kant Shekari (supra).41.One cannot dispute the aforesaid observations.On facts of the case, we have to find as to whether theconviction and sentence passed against the appellant issustainable in view of the evidence. In our view, the answerthereto is big “No”. To sum up :-(1)The victim and her mother were staying with thevictim’s maternal grandfather for many years.(2)Just about six months before the incident, both ofthem had joined the company of the appellant.(3)The victim’s mother was not keeping mentally well.(4)There, therefore, used to be frequent quarrelsbetween the couple. Cri.Appeal No.143/2021:: 26 ::(5)The appellant had expressed desire to contractsecond marriage.(6)His father-in-law strongly opposed to the saidproposal.(7)All was not well between the appellant and his father-in-law.(8)Both of them were not on talking and even visitingterms.(9)The appellant would not allow his father-in-law to visithis residence.(10)It was suggested that, 15 days before the appellantwas assaulted by his father-in-law and thereby he hadsuffered fracture of his limb. Although the suggestionwas denied, the victim stated that the appellantsuffered fracture due to fall.(11)The alleged penetrative sexual intercourse took placeon the night of March 1.(12)The victim attended the school every day from March2 onwards.(13)She could meet P.W.3 Shaikh Farida on March 11. Cri.Appeal No.143/2021:: 27 ::(14)During the said meeting, the victim did not relatedP.W.3 _ (Teacher) about the appellant to have hadpenetrative sexual intercourse with her.(15)It is not known as to why she did not disclose thesame when she had full opportunity to relateeverything.(16)It was only on 13, i.e. 12 days after the incident, thevictim related the incident to the Head Mistress. (17)The F.I.R. was lodged on 14. The maternalgrandfather, who was inimical with the appellant, hadbeen to the school with the victim, and on instructionsof the Head Mistress, he accompanied the victim tolodge the F.I.R.(18)In spite of the F.I.R. to have been lodged 13 days afterthe incident, the victim was medically screened onMarch 22.(19)The Medical Officer gave his provisional opinion,reserving final opinion until receipt of FSL reports.(20)The same indicates the Medical Officer was not firm ofhis opinion. Cri.Appeal No.143/2021:: 28 ::(21)On receipt of FSL reports, those were not shown tothe Medical Officer nor his final opinion was solicited. (22)The medical history given by the victim is altogetherdifferent than her case in the F.I.R. and examination-in-chief before the Court.42.In view of all the aforesaid facts, the criminaljurisprudence lead us to conclude that the case propoundedby the prosecution ‘might’ be true and not ‘must’ be true.There is another aspect of the matter, to which we do notpropose to give slightest of importance. Since it is made apart of record of appeal, a reference thereto is warranted.The victim written number of letters to her father. Thoseletters were produced before us by the appellant throughjail. Those letters indicate the victim repented over lodgingof the report. Reading between the lines may suggest thevictim wanted to tell that her report was not correct. Be thatas it may. We are not influenced by those letters.43.Before parting, we appreciate the assistancerendered by learned advocate Mr. Satej Jadhav, who wasappointed to represent the respondent No.2 – victim. Cri.Appeal No.143/2021:: 29 ::44.For all the aforesaid reasons, we find the TrialCourt ought not to have convicted the appellant based onsuch evidence. The appellant is behind the bars for littleover six years.45.Since we are not at one with the findingrecorded by the Trial Court, the appeal succeeds. Hencethe order : O R D E R(i)The Criminal Appeal is allowed.(ii)The order of conviction and sentence, dated28/11/2019, passed by Additional Sessions Judge, Bhokar,District Nanded in Special Case (POCSO) No.07/2019 ishereby set aside. The appellant is acquitted of the offencespunishable under Sections 376(2)(f)(i)(j), 354(A)(1), 323,504 and 506 of the Indian Penal Code and Sections 4 and 6of the Protection of Children from Sexual Offences Act,2012,
Decision
Cri.Appeal No.143/2021:: 30 ::(iii)The appellant be set at liberty forthwith if not requiredin any other case. Fine amount, if paid, be refunded to him.(iv)Fees of learned Advocate Ms Ashwini Lomte, whowas appointed for the appellant, is quantified at Rs.10,000/-(Rupees ten thousand).(v)Criminal Application No.2443/2021 stand disposed of.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-