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APEAL-628-21+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 628 OF 2021Shivaji Eknath MaliAge: 40 years, Occu.: Labour,R/o Bidkin, Tq. Paithan,Dist. Aurangabad..APPELLANTVERSUSState of Maharashtra..RESPONDENTWITHCRIMINAL APPEAL NO. 522 OF 2022State of MaharashtraThrough Police Inspector,Police Station Paithan,Tq. Paithan, Dist. Aurangabad..APPELLANTVERSUS1. Shivaji Eknath Mali Age: 40 years, Occu.: Labour, R/o Bidkin, Tq. Paithan, Dist. Aurangabad2. XYZ..RESPONDENTS....Mr. S.G. Bobade, Advocate for appellant in APEAL/628/21 and forrespondent no.1 in APEAL/522/22Mr. A.D. Wange, A.P.P. for respondent – State in APEAL/628/21 and forappellant in APEAL/522/22Ms. S.S. Tekale, Advocate for respondent no.2 in APEAL/522/22 (appointed)....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJRESERVED ON : 18th JUNE, 2024PRONOUNCED ON : 21st JUNE, 20241 / 17 APEAL-628-21+1.odtJUDGMENT ( PER : R.G. AVACHAT, J. ) :1.Both these appeals are decided by this common judgment sincethey are inter-connected. Criminal Appeal No. 628 of 2021 is filedchallenging the judgment and order of conviction and consequential sentencepassed on 21st August, 2019 by Special Judge (POCSO Act), Aurangabad inSpecial Case Child Protection No. 202 of 2016. Vide the impugned order, theappellant has been convicted for the offences punishable under Sections376(f) and 506-Part II of the Indian Penal Code (‘I.P.C.’) and consequentlysentenced to suffer rigorous imprisonment for fourteen years and one yearrespectively and to pay total fine of Rs.3,500/- with default stipulation.Whereas, Criminal Appeal No. 522 of 2022 is preferred by State against theappellant’s acquittal of the offences punishable under Sections 4, 6, 8 and9(n) of the Protection of Children from Sexual Offences Act, 2012 (‘POCSOAct’). For the sake on convenience, we refer the said parties as appearing inCriminal Appeal No. 628 of 2021.2.The facts of the prosecution case in brief, are as follows :-P.W.11 – A (name withheld) was the step-daughter of theappellant. P.W.12 - Gayabai is the victim’s natural mother. Her husbanddeserted her. She came in contact with the appellant and was residing withhim as his wife for more than five years. She claimed the appellant to be herhusband.2 / 17 APEAL-628-21+1.odt3.It so happened that on 15th September, 2016, the appellant, thevictim – A and her mother (P.W.12 – Gayabai) had come together to villagePategaon, Tq. Paithan, Dist. Aurangabad for doing labour work. They wereengaged for construction of a road. They stayed at the house of P.W.4 –Dhrupadabai, maternal aunt of the victim, overnight. It was 16th September,2016. The trio went to sleep on otla of the house of P.W.4 – Dhrupadabai. Itis the case of the prosecution that the appellant asked P.W.12 – Gayabai tosleep away from him. He slept close to the victim. The appellant undressedthe victim and committed sexual intercourse with her twice. Gayabai saw thesame. She raised hue and cry. The appellant allegedly gave threats to herlife. The incident was stated to be witnessed by P.W. 4 – Dhrupadabai too.After having gathered courage, they approached P.W.3 – Fakirchand. All ofthem went to Paithan Police Station to lodge the report. The victim’sstatement was recorded by lady police official, P.W.5 – Komal. Her anotherstatement was recorded by P.W.6 – Swapna, A.P.I. The statement is one andthe same. It is not known as to why two different exhibit numbers have beengiven to the victim’s statement–cum–F.I.R. For the sake of convenience, werefer it as Exhibit 47.4.Based on the F.I.R. (Exh.47), crime vide C.R. No. 354 of 2016 wasregistered against the appellant for the offences punishable under Sections376 and 506 of the I.P.C. and under Sections 4, 6, 8, 9(n) and 10 of POCSOAct.3 / 17 APEAL-628-21+1.odt5.During investigation, the victim was medically screened. Duringmedical screening of the victim, samples of certain articles were obtained forC.A. Crime scene panchanama (Exh.13) was drawn. Clothes on the personof both, the appellant and the victim were seized. The victim was furthermedically screened by the radiologist to ascertain her age. The appellant toowas medically screened. Statements of the persons acquainted with the factsand circumstances of the case were recorded. Upon completion of theinvestigation, charge-sheet was filed.6.Court of Additional Sessions Judge-cum-Special Court constitutedfor trial of the offences punishable under the POCSO Act framed the charge(Exh.24). The appellant pleaded not guilty. His defence was of falseimplication. According to him, the victim was previously married. She waseven involved with one Kaduba Gaikwad. She delivered a baby. The victimand her mother dumped the baby alive. The appellant had witnessed thesame. He wanted to relate the matter to police. A quarrel, therefore, ensuedbetween him and P.W.12 – Gayabai, mother of the victim. He has, therefore,been falsely implicated.7.To bring home the charge, prosecution examined ten witnessesand produced in evidence certain documents. The trial Court, onappreciation of the evidence in the case, convicted and consequently4 / 17 APEAL-628-21+1.odtsentenced the appellant as stated above. The appellant was, howeveracquitted of the offences punishable under the POCSO Act. The trial Court,relying on the report of the radiologist indicating the victim’s age to be in theage group of fourteen to sixteen years, gave the benefit of margin of twoyears on either side and held the prosecution to have failed to prove thevictim was a child, below eighteen years of age at the relevant time.8.Learned counsel for the appellant would submit that there is delayof four days in lodging of the F.I.R. Medical evidence does not support theprosecution case. It was just illogical to imagine that by 09:00 in the nightthe appellant would undress his so called step-daughter. He too undressedhimself and committed sexual intercourse twice at a place surrounded byresidential houses. Learned counsel brought to our notice certaininconsistencies inter se evidence of the prosecution and history given by thevictim as well. According to him, the appellant has been languishing behindthe bars for about eight years. He took us through the evidence of each andevery witness to ultimately urge for allowing the appeal.9.Learned A.P.P. and learned counsel representing the victim, reliedon the judgment of Division Bench of this Court in case of Sunil FattesingSable Vs. State of Maharashtra, Criminal Appeal No. 718 of 2016, dated 03rdOctober, 2023, wherein it has been observed that in the absence of any other5 / 17 APEAL-628-21+1.odtmaterial in proof of age of the victim, age shall be determined by anossification test or any other latest medical age determination test conductedon the orders of the Committee or the Board. Both the learned counsel reliedon the report of radiologist suggesting the victim to have been in the agegroup of fourteen-sixteen years at the relevant time. According to them, thevictim had no reason to falsely implicate her father. The appellant’s wifewould also not depose against him putting her marital relationship at stake.Our attention then adverted to the medical examination report (Exh.95)which suggests the victim was sexually exploited. Learned counsel took usthrough the evidence of each and every witness. According to them, since itwas a matter amongst the family members, delay occurs in such matters.There was delay of four days in registration of the F.I.R. The appellant hasthreatened the P.W.12- Gayabai, mother of victim (his wife) of direconsequences, if the matter was reported to police. Learned counsel took usthrough the reasons given by the trial Court in support of the impugnedjudgment and order. Both of them ultimately urged for dismissal of theappellant’s appeal with further prayer of allowing the State’s appeal.10.Considered the submissions advanced. Perused the evidence onrecord. Also perused the impugned judgment and order. Let us advertthereto and appreciate the same.6 / 17 APEAL-628-21+1.odt11.P.W.1 – Ramesh is a witness to the crime scene panchanama(Exh.13). Nothing incriminating was found thereat. The said panchanama is,therefore, of little consequence to further the prosecution case. However, it isadmitted fact that on the given night, the appellant, the victim – A and hermother were slept on the otla of the house of P.W.4 – Draupadabai. Theincident was said to have taken place by 09:00 p.m. Admittedly, there arevarious residential houses by the side and in front of the house ofDraupadabai. According to the case of the prosecution itself, the incident waswitnessed by the victim’s mother, P.W.12– Gayabai and P.W.4 – Draupadabai.12.Although the incident took place at the night (09:00 p.m. on 16thSeptember, 2016), the matter was reported to the police on 20th September,2016 i.e. four days after the incident. The same was recorded by P.W.5 –Komal and P.W.6 – Swapna. P.W.11 – A, the victim testified that theappellant is her step-father. In the year 2016, they had come for work toPaithan. They had stayed at the house of P.W.4 – Dhrupadabai, her maternalaunt. It was the 16th day of the month. She went to sleep on otla of thehouse of her maternal aunt. The appellant asked her mother to sleep at somedistance away from him. The appellant then came close to her (victim) andremoved her clothes. He undressed himself. The appellant then committedsexual intercourse with her twice. Her mother, P.W.12 – Gayabai, therefore,raised noise and asked the appellant not to do so. The appellant thereby gave7 / 17 APEAL-628-21+1.odther threats. Then she, alongwith her mother and maternal aunt approachedthe police station. She lodged the report (Exh.47).13.The victim was subjected to a searching cross-examination,wherefrom it has been brought on record that she did not remember the dayand date of the incident. Her natural father had fled with another woman.Her mother (P.W.12 – Gayabai), therefore started residing with the appellant.She denied to have already been married with one Kaduba Gaikwad. Shedenied to have been conceived by him and even delivered a baby. Shefurther denied to have thrown the newly born in a boar well. She furtherdenied the same was seen by the appellant and he wanted to report the saidmatter to the police. She denied that a false report was, therefore, lodgedagainst the appellant. It is further in her evidence that she did not knowFakirchand, Draupadabai and Vitthal Barde. She then admitted to haveknown them. According to her, at the relevant time it was dark. She deniedto have been more than eighteen years of age at the relevant time. Shedenied that no such incident did take place. She was confronted with herstatement (recorded under Section 164 of Cr.P.C.) (Exh.102). According toher, the contents thereof are correct.14.We do not propose to refer the evidence of P.W.5 – Komal andP.W.6 – Swapna since their evidence is only in relation to recording ofstatement-cum-F.I.R. (Exh.47 and 56).8 / 17 APEAL-628-21+1.odt15.P.W.2 – Pratibha is a witness to the panchanamas whereunderclothes of the appellants and victim were seized (Exh.15 and 16) respectively.Since those were seized a few days after the alleged incident, naturally theC.A. reports in relation thereto do not support the prosecution case. Thepolice officer, who carried those articles to the FSL has not been examined.The C.A. reports find place at Exhibit 132. It is true, one of the C.A. reportsindicates that there was semen stains on the nicker. Since the police officer,who carried the articles to FSL was not examined and the list of articles sentto have not been proved, it is just difficult to come to the conclusion that itwas the knicker of the appellant and none else. Moreover, panchanamaindicates no knicker of the victim was seized. P.W.3 – Fakirchand testified inrelation to the incident that took place on the night of 16th September, 2016.He admittedly not an eye witness to the incident. It is in his evidence that on21st September, 2016, the victim, her mother and P.W.4 – Dhrupadabai hadcome to him. The victim’s mother (P.W.12 - Gayabai) related her about theincident and threats given by the appellant. On their request, he accompaniedthem to the police station whereat the victim reported the matter.16.In his cross-examination, questions relating to the defence versionwere put. He denied the same. It is, however suggested to him that on thegiven night the appellant, victim – A and her mother had slept on the otla ofthe house9 / 17 APEAL-628-21+1.odt17.P.W.4 – Dhrupadabai testified that on the given night, theappellant, the victim and her mother Gayabai had come to her village. Theyhad stayed at her house overnight. It was about 09:00 p.m. The trio went tosleep on the otla of her house. She claimed to have seen the appellantundressed the victim and slept with her. According to her, P.W.12 - Gayabai,mother of the victim too witnessed the same. The appellant gave threats andeven quarreled with Gayabai. On the following day, therefore, they went toP.W.3 – Fakirchand and related him about the incident. During her cross-examination, it has been brought on record that she was previously marriedto one Arun Mali. Vitthal Barde was her second husband. She hadaccompanied Vitthal to Court to give evidence. It is further in his evidencethat there were public lamp posts nearby the crime scene. She admitted thatby 09:00 p.m., the neighbours remained awake. She was suggested that itwas raining that time. She denied the appellant to have not committedatrocity on the victim and/or abused and threatened Gayabai. It is further inher evidence that Vitthal is the real brother of P.W.3 – Fakirchand. Thedefence version was put to her during her cross-examination. She stoutlydenied the same.18.P.W.12 – Gayabai, mother of the victim, gave her evidence on thelines of the evidence of victim herself. It is in her evidence that she had cometo village Pategaon alongwith her daughter (victim) and husband (appellant).10 / 17 APEAL-628-21+1.odtThey were staying in the house of P.W.4 – Dhrupadabai. The incident tookplace by 09:00 p.m. on 16th September, 2016. The appellant, the victim andherself were sleeping on the otla of the house. The appellant had asked herto sleep at some distance from him. The appellant went close to the victim.He undressed her and also removed clothes on his person. He thencommitted sexual intercourse twice, with her (victim). She had seen it. Sheasked the appellant not to commit such act. The appellant assaulted her. Thevictim was frightened. She thereafter took the victim to the police stationalongwith her maternal aunt, P.W.4 – Dhrupadabai. The victim lodged thereport at the police station.19.In her cross-examination, she admitted that adjacent to the otlathey were sleeping on, there were several houses. She could not state date ofbirth of the victim. Defence of the appellant was put to her in the form ofsuggestions. She has stoutly denied the same.20.On registration of the F.I.R., the victim was medically screened byP.W.7 – Dr. Supriya. The victim gave her following history :-“History narrated by survivor herself, named Jyoti Popat Thakre,who is residing with her mother and her step father Shivaji Mali,since last 5 years approximately. (Prior to that she was residingwith her aunt). Since then her father is abusing her (since last 5years), and having forceful sexual intercourse with her. Hethreatens to kill her mother if she opposes for intercourse. Lastintercourse was on 17/9/16, at night, at her aunt’s home which11 / 17 APEAL-628-21+1.odtwas noticed by people around and complaint was launchedagainst him.”21.The medical examination report reads thus :-“There are signs suggestive of forceful penetration of vagina.Genital injury in the form of old healed hymenal tear present.Pubic hairs, vaginal swabs, smears, blood collected of chemicalanalysis are available.”22.The very doctor was put to questionnaire by the investigatingofficer. The answers thereto are as follows :-“fQ;kZnh ukes (A)] MLC Case No.17033/SUK/16, oS|dh; ijh{k.kvfHkizk; &1- laHkksx >kysyk vkgs- dkyko/kh fuf’pr lkaxrk ;sr ukgh- 2- lnj fiMhr eqyhps o; 14 rs 16 o”kkZnjE;ku vlkos] vgoky lkscrtksMysyk vkgs-3- xqIrkaxkoj t[kek vkgs- ;ksuhekxkZpk iMnk QkVysyk vkgs-4- fiMhr eqyhps Ogtk;uy LoWc jk[kwu Bsoysys vkgs- 5- fiMhr eqyhP;k jDrkpk uequk jk[kwu Bsoysyk vkgs-6- cykRdkj laca/kkus vko’;d rikl.kh gksowu vko’;d vlysys loZ lWaaiyjk[kwu Bsoysys vkgs-”23.The appellant too was medically screened by P.W.9 – Dr.Vishal tofind him to be nothing abnormal to opine him unfit for sexual intercourse.The victim was subjected to radiological examination test for ascertaining herage. It is P.W.8 – Shruti, who examined her and certified to be in the agegroup of fourteen to sixteen years. Her cross-examination is very relevant.She admitted that on having seen x-ray film of the victim, she determined her12 / 17 APEAL-628-21+1.odtage. She went on to state that her observations of age on bone wasapproximate. She further admitted that there may be difference of plus orminus two years in the age observed by her of the victim.24.Based on this cross-examination, the trial Court held theprosecution to have failed to prove the victim to have been below eighteenyears of age. We too do not find any other reason to disagree therewith.Reliance on the judgment in case of Sunil Fattesing Sable (supra) would oflittle consequence for the prosecution in view of the admission given byP.W.8 – Shruti in her cross-examination. There was no other evidence inproof of age of the victim.CONCLUSION :-25.On appreciation of the aforesaid evidence, we find the prosecutionto have failed the prove the victim to have been below eighteen years of ageat the relevant time. When two views are possible based on the evidence onrecord, the one which favours the accused needs to be taken. The State’sappeal against acquittal of the appellant for the offences under the POCSOAct, therefore, fails.26.Admittedly, the appellant was the step-father of the victim. Herreal father was said to have eloped with some other woman. The appellant,the victim and her mother (P.W.12) had come to village Pategaon for labour13 / 17 APEAL-628-21+1.odtwork. Admittedly, they had stayed at the house of P.W.4 – Dhrupadabai.Close reading of the evidence indicates that there was no relationshipbetween the victim and Dhrupadabai. Dhrupadabai was said to be her fostermaternal aunt. Admittedly, on the given night (16th September, 2016), thetrio i.e. the appellant, the victim and her mother were asleep on the otla infront of the house of Dhrupadabai. There were public lamp posts at andaround the area of crime scene. The crime scene panchanama (Exh.13) andfurther evidence on record indicate that it was a populated area. There weremany houses adjoining and around the crime scene. True, it was raining.Case of the prosecution is that the appellant completely undressed the victim.He too undressed himself. He then committed sexual intercourse with hertwice. There is no evidence to indicate the victim to have raised alarm. Asper the case of prosecution, the act was witnessed by P.W.12 – Gayabai,mother of the victim. She, therefore, asked the appellant not to commit suchact. P.W.4 – Dhrupadabai also claimed to have witnessed the said incident.All these facts indicate that if at all such act did take place and noticed byneighbours, there was no difficulty for the victim and her mother to approachthe police station on the very next day. The appellant gave threats to thevictim’s mother appears to be a reason put forth afterthought so as to explainthe delay of four days in registration of the crime. Since the victim wasmedically screened 4/5 days after the incident, the C.A. reports (Exh.132) inrelation to the clothes on the person of both, the appellant and the victim, do14 / 17 APEAL-628-21+1.odtnot further the prosecution case. History given by the victim to the medicalofficer is very much inconsistent with her evidence before the Court.Moreover, her statement under Section 164 of Cr.P.C. was recorded. Thedefence confronted the same to the victim. Said statement finds place atExhibit 102. What has been stated there is as under :-“eh ikVsxko ;sFkhy jLR;kps dke pkyw vlysY;k fBdk.kh ek>s nqljs oMhyf’kokth ekGh o vkbZ ;kaP;klkscr jkgr gksrs- xsY;k vkBoM~;kr jk+=hP;k osGhek>s oMhy nk# fiowu vkys o R;kauh ek>~;k vkbZyk ekjgk.k dsyh o ek>~;kvkbZyk nwj >ksi.;kl lkafxrys o eyk R;kaP;ktoG >ksi.;kl lkafxrys- ehR;kauk rqEgkyk rqeph ck;dks vkgs] rqEgh vkbZtoG >ksik vls lkafxrys vlrkR;kauh ek>~;k vkbZyk ekjgk.k d#u dk<wu fnys o eyk tcjnLrhus toG>ksifoys- ek>~;k ofMykaph fu;r fQjyh gksrh- rs eyk d# ns vls Eg.kkys oukghrj rqyk Qk’kh nsbZu vls Eg.kkys o ek>~;koj vR;kpkj dsyk- R;kuarj ehek>~;k vkbZ o ekeklkscr iksyhl Bk.;kr xsys gksrs-”27.True, from this statement one may infer that something hashappened with the victim on the given night. But the said statement in noway lead us to infer the appellant to have committed sexual intercourse withher.28.The trial Court relied on this statement to observe to havecorroborative evidence of the victim. It also found the defence of theappellant to have not been proved. There is difference between anaccused/appellant failing to make out his defence and/or coming out with afalse defence. It is true that false defence gives a missing link. So is not thecase herein.15 / 17 APEAL-628-21+1.odt29.On appreciation of the evidence in the case, we find testimony ofthe victim to be not inspiring confidence. It is reiterated that it was just09:00 p.m. There is evidence to indicate that neighbours were awake. It wasa populated area. Street lights were there. The appellant completelyundressed himself. He then undressed the victim. He then committed sexualintercourse twice, with the victim. The victim did not raise alarm. It is onlyher mother (P.W.12 – Gayabai), who noticed the same and then confrontedthe appellant. This speaks in volumes to infer even the case may be otherway round. We do not propose to observe anything more on this aspect. Thevictim has already found to be not below eighteen years of age. The historygiven by her to the medical officer and statement under Section 164 ofCr.P.C. (Exh.102) do not reinforce her evidence before the Court about theincident that took place on the given night. We, therefore, found theevidence of the victim to have not been inspiring confidence. The delay inregistration of the F.I.R. has not been explained with sound reasons. Basedon such kind of evidence, in our view, the trial Court ought not to haveconvicted the appellant. The appellant has been in jail since 20th September,2016 till date i.e. close to eight years.30.For all the aforesaid reasons, interference with the order ofconviction and consequential sentence is warranted. In the result, we passthe following order :-16 / 17 APEAL-628-21+1.odtORDER(I)Criminal Appeal No. 628 of 2021 is allowed.(II)Impugned judgment and order dated 21st August, 2019passed by Special Judge (POCSO Act), Aurangabad therebyconvicting the appellant for the offences punishable underSections 376(f) and 506-Part II of the Indian Penal Code ishereby set aside. The appellant is acquitted thereof.(III)The appellant be released forthwith, if not required in anyother case.(IV)Criminal Appeal No. 522 of 2022 preferred by State againstacquittal of the appellant of the offences punishable underSections 4, 6, 8 and 9(n) of the Protection of Children fromSexual Offences Act, 2012 is dismissed.(V)Fees of Ms. Sayali S. Tekale, learned counsel, appointedthrough Legal Aid to represent Respondent No.2, isquantified to Rs.10,000/- (Rupees Ten Thousand).( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD17 / 17