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Cri. Appeal No.540.2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.540 OF 2022Kamesh s/o. Jagan Mate,Age : 26 years, Occ. Labour,r/o. Sitalnagar, Flat No.F-4,Shahnoorwadi, Tq. and Dist. Aurangabad..AppellantVs.1.The State of Maharashtra2.XYZ..Respondent----Mr.S.J.Salunke, Advocate for appellantMr.B.B.Bhise, APP for respondent no.1Mr.Rohit Patwardhan, Advocate for respondent no.2---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : MARCH 27, 2024 JUDGMENT (PER R.G.AVACHAT) :- The challenge in this appeal is to the judgment and order ofconviction and consequential sentence passed by learned SpecialJudge (POCSO Act), Aurangabad, in Special Case No.342 of 2021. Theoperative order of conviction and consequential sentence, reads asfollows :-1 Accused Kamesh Jagan Mate is herebyconvicted of the offence punishable under section506 of the Indian Penal Code, under sections 4, 5(l)r/w 6, 5(n) r/w 6, 8, 9(l) r/w 10 and 9(n) r/w 10 ofthe Protection of Children from Sexual Offences Act, 2Cri. Appeal No.540.20222012 and 75 of Juvenile Justice (Care andProtection of Children) Act, 2015, as per section235(2) of Code of Criminal Procedure. 2 Accused is convicted of the offencepunishable under section 506 of the Indian PenalCode as per section 235(2) of the Code of CriminalProcedure and sentenced to suffer rigorousimprisonment for two years only. 3Accused is convicted of the offencepunishable under section 4 of the Protection ofChildren from Sexual Offences Act, 2012 as persection 235 (2) of Code of Criminal Procedure andsentenced to suffer rigorous imprisonment for lifeand to pay fine of Rs.1000/- (Rs.One thousand). 4 Accused is convicted of the offencepunishable under section 5(l) r/w 6 of theProtection of Children from Sexual Offençes Act,2012 as per section 235(2) of Code of CriminalProcedure and sentenced to suffer rigorousimprisonment for life and to pay fine of Rs. 1000/-(Rs. One thousand). 5 Accused is convicted of the offencepunishable under section 5(n) r/w 6 of theProtection of Children from Sexual Offences Act,2012 as per section 235 (2) of Code of CriminalProcedure and sentenced to suffer rigorousimprisonment for life and to pay fine of Rs. 1000/-(Rs. One thousand). 6 Accused is convicted of the offencepunishable under section 8 of the Protection ofChildren from Sexual Offences Act. 2012 as persection 235(2) of Code of Criminal Procedure andsentenced to suffer rigorous imprisonment for fiveyears and to pay fine of Rs. 500/- (Rs. Fivehundred), in default to further undergo rigorousimprisonment for one month. 7Accused is convicted of the offencepunishable Under section 9(l) r/w 10 of theProtection of Children from Sexual Offences Act, 3Cri. Appeal No.540.20222012 as per Section 235(2) of Code of CriminalProcedure and sentenced to suffer rigorousimprisonment for seven years and to pay fine of Rs.500/- (Rs. Five hundred), in default to furtherundergo rigorous imprisonment for one month. 8Accused is convicted of the offencepunishable under section 9(n) r/w 10 of theProtection of Children from Sexual Offences Act,2012 as per section 235(2) of Code of CriminalProcedure and sentenced to suffer rigorousimprisonment for seven years and to pay fine of Rs.500/- (Rs. Five hundred), in default to furtherundergo rigorous imprisonment for one month. 9Accused is convicted of the offencepunishable under section 75 of the Juvenile Justice(Care and Protection of Children) Act, 2015 as persection 235(2) of Code of Criminal Procedure andsentence to suffer rigorous imprisonment for threeyears and to pay fine of Rs. 500/- (Rs. Fivehundred), in default to further undergo rigorousimprisonment for one month. 10 All the sentences to run concurrently. 11 ………..12 ………..13………..14………..15………..The appellant is, therefore, before us in this appeal.2.The facts, giving rise to the present appeal, are asfollows:-The First Information Report has been lodged by PW 2 -victim (`X’) on 02.09.2021. It is her case that she was born on 4Cri. Appeal No.540.202218.12.2004. She was residing along with her mother, brother andappellant (step-father). One Raju Bhalerao was her biological father.Two years before the alleged incident, marriage between her motherand said Raju was dissolved by a decree of divorce. Her mother gotremarried with the appellant. All of them, therefore, started residingnear Morya Mangal Karyalaya. Initially, the appellant was behavingproperly. Once, her mother was out of the house. The appellanttouched the victim’s private part. He removed her clothes and didsexual intercourse with her. The appellant had threatened her if shedisclose the same to her mother. The appellant did the same thingmany a time, whenever her mother and brother used to be awayfrom home. 3.It is her further case that then, they shifted theirresidence to Ramanagar. On the given day (02.09.2021), her motherhad gone to Beed-bye-pass road for some work. Her brother hadgone for tuition. It was about little past 02.00 p.m. The appellantagain did sexual intercourse with her. The victim related the same toher mother on her arrival. The mother, therefore, accompanied herto the police station. The victim lodged the FIR (Exh.29). Based onthe FIR, a crime vide C.R. No.350 of 2021, came to be registered withPundlik Nagar Police Station, Aurangabad. The victim was medically 5Cri. Appeal No.540.2022screened. The appellant was arrested. He too was medicallyexamined. The scene of offence panchnama (Exh.37) was drawn.During the medical screening of both of them, samples of certainthings were obtained. Those were sent to F.S.L. for chemical analysisand report. Upon completion of the investigation, the appellant wasproceeded against by filing charge sheet. The case was committedto the Court of learned Special Judge (POCSO Act), Aurangabad (trialcourt), for trial in accordance with law. 4.The trial court framed Charge (Exh.13). The appellantpleaded not guilty. His defence was of false implication.5.To bring home the charge, the prosecution has examinedfour witnesses and produced in evidence certain documents. Thetrial court, on appreciation of the evidence in the case, convicted theappellant and consequently, sentenced as stated above. 6.Heard learned counsel for the parties.7.Learned counsel for the appellant would submit that thevictim, in her cross-examination, did not stand by the prosecution.The victim was not declared to have been won over by the appellant.As such, whatever has been deposed to by her in her examination-in-chief, has been washed out during her cross-examination. The
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6Cri. Appeal No.540.2022victim’s mother also did not stand by the prosecution. The medicalscreening report of the victim would, therefore, be of littleconsequence. He, therefore, urged for allowing the appeal.8.Learned APP supports the impugned judgment and order.Learned counsel for respondent no.2 – victim submitted for rejectionof the appeal.9.Let us advert to the evidence on record and appreciatethe same.PW 1 – Hajuri Kaur was in-charge Headmistress of GuruTeg Bahadur Primary English School, Osmanpura, Aurangabad. Shetendered in evidence the extract from the victim’s school admissionregister (Exh.24). During cross-examination, she testified to have nopersonal knowledge about the date of birth of the victim. She,however, testified that according to the school record, the date ofbirth of the victim is 18.12.2004. 10.PW 2 – `X’ (victim) testified on oath. It is in her evidencethat she was born on 18.12.2004. She was residing along with hermother, brother and appellant (step-father). One Raju Bhalerao washer biological father. Two years before the alleged incident, marriagebetween her mother and said Raju was dissolved by a decree of 7Cri. Appeal No.540.2022divorce. Her mother got remarried with the appellant. All of them,therefore, started residing near Morya Mangal Karyalaya. Initially,the appellant was behaving properly. Once, her mother was out ofthe house. The appellant touched the victim’s private part. Heremoved her clothes and did sexual intercourse with her. Theappellant had threatened her if she disclose the same to her mother.The appellant did the same thing many a time, whenever her motherand brother used to be away from home. It is her further case thatthen they shifted their residence to Ramanagar. On the given day(02.09.2021), her mother had gone to Beed-bye-pass road for somework. Her brother had gone for tuition. It was about little past02.00 p.m. The appellant again did sexual intercourse with her. Thevictim related the same to her mother on her arrival. The mother,therefore, accompanied her to the police station. 11.During the cross-examination, what has been deposed toby PW 2 - victim in her examination-in-chief, has been renderedunreliable. In response to the questions put to her in cross-examination, she testified that after taking admission in the school,she realised that her date of birth was 18.12.2002. It is further in herevidence that since before marriage of her mother with theappellant, he (appellant) was residing with them. The appellant wasaddicted to alcohol. He used to hurl abuses to her and her mother. 8Cri. Appeal No.540.2022Because of his harassment, her mother and herself had got fed up.It is further in her evidence that on having been fed up, they decidedto approach the police station. It is further in her evidence that she,therefore, approached the police on 02.09.2021 to lodge the reportabout harassment meted out to her by the appellant. It is further inher evidence that the police had called the appellant to the policestation in their presence. The appellant was under influence ofalcohol. Quarrel between him and the police took place at the policestation. It is further in her evidence that the police had asked hermother and herself to sit in a separate room. The police obtained allthe information about the appellant from them. It is further in herevidence that the police obtained her signature on typed papers.She went on to state that the police did not read over the contents ofthe said document. It is further in her evidence that before recordingher statement under Section 164 of the Code of Criminal Procedure,the police had called her. She was provided with a written paper andwas asked to state accordingly, during recording of such statement.The victim went on to state that except the harassment meted out toher by the appellant under influence of liquor, he did nothing withher. To top of it, she testified to have been treated by the appellantlike his daughter. According to her, there was no any other kind ofrelationship between her and the appellant. 9Cri. Appeal No.540.202212.PW 3 - `Y’, mother of the victim, was also examined. Shetoo did not stand by the prosecution. Learned APP did cross-examineher extensively. However, nothing fruitful could be brought onrecord. She too was subjected to cross-examination on behalf of theappellant. It is in her evidence that the appellant would illtreat herunder consumption of alcohol. He uttered abusive words. So, sheand the victim had been to the police station to lodge report againsthim. It is in her evidence that on the date of lodging of the report,the appellant had consumed liquor very much. After lodging of thereport, the appellant was called to the police station. He hadquarreled with the police. It is further in her evidence, that thepolice obtained signature of the victim and herself on written papers.She went on to admit that the victim was more than 19 years of age,while the report (FIR) was lodged. She testified that the victim’sdate of birth in the school record was incorrect.13.The medical screening report (Exh.35) indicates thatthere were no signs of use of force. The Medical Officer reserved herfinal opinion, pending the availability of the F.S.L. report. Sexualintercourse, however, could not be ruled out.14.C.A. report (Exh.51) do not support the prosecution case.No semen was detected on `vaginal swab’. No semen was detected 10Cri. Appeal No.540.2022on the clothes including knicker of the victim. Same is the case ofvaginal and verbal swab and smear of the victim. 15.In view of the aforesaid evidence on record, the trialcourt ought not to have convicted the appellant. We are, therefore,not at one with the findings recorded by the trial court. Interferencewith the impugned order of conviction and sentence is, therefore,warranted. 16.In the result, the appeal succeeds. Hence, the followingorder :-i) The Criminal Appeal is allowed.(ii) The Judgment and Order dated 22/06/2022, passedby the learned Special Judge [POCSO Act], Aurangabad inSpecial Case No.342/2021 convicting and sentencing theAppellant for the offences punishable under Section 506of the Indian Penal Code, Sections 4, 5[l] r/w 6, 5[n] r/w6, 8, 9[l] r/w 10 and 9[n] r/w 10 of the Protection ofChildren from Sexual Offences Act, 2012 and Section 75of the Juvenile Justice (Care and Protection of Children)Act, 2015, is set aside.(iii) He stands acquitted of the offences for which hewas convicted and consequently sentenced under theorder impugned herein. 11Cri. Appeal No.540.2022(iv) He be released forthwith, if not required in anyother case.(v) Fine amount paid by the Appellant, if any, berefunded to him. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP