[Cites 17, Cited by 0]
Bombay High Court
Vicky Sambhaji Nikam vs State Of Maharashtra And Anr. on 18 December, 2025
2025:BHC-AS:56049
APEAL-1276-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1276 OF 2022
Mr. Vicky Sambhaji Nikam }
Age-31 years, Occ: Service }
R/at Room No.109, 1st Floor, Sayyed }
Apartment, Shanti Nagar, Kurla (W), }
Mumbai-400070 }
Presently lodged in Kolhapur Prison } .... Appellant
V/s.
Digitally signed
NILAM by NILAM
SANTOSH
1. State of Maharashtra }
SANTOSH KAMBLE
KAMBLE Date: 2025.12.18
17:29:26 +0530
At the Instance of the Sr. PI Kurla Police }
Station, Mumbai. }
}
2. X.Y.Z. }
Kurla police Station }
Cr.No.13/21 } .... Respondents
----
Mr. Tapan Thatte a/w Mr. Vivek Arote and Mr. Akshay Dingale,
for the Appellant.
Mr. A.S. Gawai, APP, for the Respondent No. 1.
Mr. Chaitanya Chavan a/w Mr. Neil Patel for Respondent No. 2.
Mr.Satish Thorat, PSI, Kurla Police Station, Mumbai - Present
----
CORAM : R.M. JOSHI, J.
RESERVED ON : 12th DECEMBER 2025
PRONOUNCED ON : 18th DECEMBER 2025
JUDGMENT :
. This Appeal takes exception to the judgment and
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order dated 2nd June 2022 passed in POCSO Special Case
No.325 of 2021 whereby the Appellant/Accused is convicted for
the offence punishable under Section 6 of the Protection of
Children From Sexual Offences Act, 2012 ('POCSO Act' for
short) and sentenced to suffer RI for 20 years with fine of
Rs.25,000/- in-default Simple Imprisonment for six months. He
has also been sentenced to suffer RI of one year with fine of
Rs.1,000/- in-default simple imprisonment for 15 days for the
offence punishable under Section 12 of the POSCO Act. Since,
the Accused is convicted for the offences punishable under
Section 6 and 12 of the POCSO Act, no punishment was
imposed against him for the offence punishable under Section
376(A) and (B) and 354D of Indian Penal Code, 1858 ('IPC' for
short) and Section 10 of the POCSO Act.
2. The facts appearing from the record indicate that, on
10th January 2021 at about 10.10 p.m. report came to be lodged
by Informant with Kurla Police Station stating that on that day at
about 9.30 p.m. when she along with her husband and relative
was in the house, her daughter came running to the house, in
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threatened state. When she questioned her as to why she was
crying, informants daughter told her that
"AmmaI Apnao ibalDIMga mao rhnao vaalao ivakI AMkla nao maoro saaqa gaMdI hrkt kI ivakI AMkla nao
maora hat pkDkr mauJao ]nakI poSaaba vaalaI jagah pr pkDnao ko ilae baaolaa AaOr mauJasao gaMdI
gaMdI baat krnao lagaa AaOr mao ivakI AMkla ko hat kao JaTka dodI."
3. She informed about the same to her husband. When
they came outside the house, they saw Accused going out. When
her husband stopped him, he ran away from the spot. Thereafter,
complaint came to be lodged at the instance of the mother of the
victim against the Accused. On the basis of which offence is
registered vide Crime-No. 13 of 2021.
4. During the course of the investigation the statement
of the victim was recorded under Section 161 of the Cr.P.C. So
also she had been referred for medical examination. Though
general medical examination was permitted, informant refused
her daughter to undergo the genital examination. Statement of
the victim was also recorded before the Magistrate under Section
164 of Cr.P.C. Panchanama was drawn of the spot of the incident.
Seized articles were sent sealed for Chemical Analysis. Statement
of witnesses were recorded including statement of Medical officer
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who had clinically examined the victim. On conclusion of the
examination charge-sheet came to be filed against the Accused.
5. Charge is framed against the Accused vide Exhibit
15. Accused denied the charges, hence was tried before the Trial
court. In order to prove guilt of the Accused, prosecution
examined following six witnesses.
Serial No. Witness Name Exhibit No.
PW - 1 Rajashree Vinayak Alkunte Exh. 22
Page no. 51-52
PW - 2 Mother of victim Exh. 23
Page no. 53-59
PW - 3 Victim Exh. 32
Page no. 80-89
PW - 4 Mr. Pramod @ Sachin Mahavir Upalkar Exh. 35
Page no. 91-93
PW - 5 Pankaj Ramdhan Pardeshi Exh. 39
Page no. 121-125
PW - 6 Gajanan Marutrao Deshmukh Exh. 48
Page no. 146-151
6. The learned Trial court found evidence led by the
prosecution sufficient to bring home guilt of the Accused and
therefore by impugned judgment and order convicted the
Accused and sentenced him to suffer imprisonment as stated
herein above.
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7. The learned counsel for the Appellant/Accused
submits that there is evidence on record to indicate that the
parties are in unimical terms. It is his submission that the
testimony of the victim is not free from doubt and possibility of
tutoring is not ruled out. It is his submission that the First
Information Report which is lodged on the basis of information
given by the victim to her mother wherein there is no allegation
against the Accused with respect to penetrative sexual intercourse
so also act of the oral intercourse. According to him this becomes
vital in the context of the fact that the mother of the victim has
refused genital examination of the victim. It is his submission
that though excuse is sought to be given about victim being ill
then, there is no evidence of Medical Officer to support the said
claim of Informant. It is his further submission that this is not a
case wherein the incident has occurred at isolated place, but the
same is claimed to have occurred on the first floor of the building
in the passage. He drew attention of the Court to the testimony
of victim which according to him indicates that one independent
witness Sajid was present, however as admitted by the
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Investigating Officer his statement is not recorded during the
course of investigation. It is his submission that, adverse
inference needs to be drawn against the prosecution firstly on the
ground of not permitting the victim to undergo the medical
examination and not recording statement of the witness who was
present at the spot. He further drew attention of the Court to the
admission of the PW-4 as well as informant indicating that there
was installation of CC Tv cameras in the building, however, the
Investigating Officer has not collected the said evidence.
Argument is also made about the discrepancies in the statement
of the victim as to the mobile phone on which she was shown
objectionable contents by the Accused. It is argued that in case of
sterling quality of evidence of the victim, corroboration need not
be sought. However, according to him in the instant case the
evidence of the victim as narrated to her mother and FIR coupled
with the fact that the medical examination of the victim was
refused, there is reason to believe that this is a case of false
implication of the Accused in crime. To support his submission
he placed reliance on following judgment:-
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1. Raju @ Balachandran & Ors. v. State of Tamil Nadu AIR 2013 SC
2. Nirmal Premkumar & Anr. v. State Rep. by Inspector of
Police 2024 (SC) 221
8. The learned counsel for Respondent No.2 and
learned APP supported the impugned judgment and order. It is
contention of learned counsel for Respondent No.2/Victim that
the FIR is not encyclopedia and merely because certain facts not
narrated therein, that would not be sufficient discarded testimony
of victim. To support his submission, he placed reliance on
judgment in case of State of Uttar Pradesh V/s. Naresh & Ors.
(2011) 4 SCC 324. On the point of the Medical Examination, it
is his submission that the medical examination was conducted,
however, the genital examination was not permitted by the
mother of the victim. It is his submission that having regard to
the evidence of victim, the genital examination of the victim was
not at all essential. To support this submission he placed reliance
on the judgment of the Hon'ble Supreme Court in the case of
Aslam V/s. State of Uttar Pradesh (2014) 13 SCC 350 . On the point
of phone being used in the crime to show pornographic substance to
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the victim, reference is made to the evidence of victim as well as
to the statement of Accused under Section 313 of Cr.P.C. It is
submitted that Article 9 is the mobile phone which belongs to the
Accused and with which the victim says that the objectionable
substance was shown therefrom.
9. Insofar as the absence of collecting evidence of C.C.
TV it is argued that the Informant has accepted about the
existence of the CC TV at the entrance of the building and not
on the first floor. It is thus his submission that merely on the basis
of such statement it cannot be assumed that there was CC-TV
footage which was not collected by the Investigating Officer. In
this regard reference is made to the evidence of Investigating
Officer who denied installation of CC TV at the spot of the
incident. According to him though in statement under Section
313 of Cr.P.C. the Accused has sought to raise plea of alibi, there
is absolutely no evidence to support the same. It is his contention
that since the victim is 6 and ½ years old and she narrated the
incident before the Court, there is no reason to discard her
testimony and the alleged animosity between the parties becomes
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irrelevant. Directing to the judgment in case of State of Punjab
V/s. Gurmit Singh (1996) 2 SCC 384, the learned counsel argued
that there is no possibility that the father of the girl of such young
age would falsely implicate the Accused through her. On the
point of non-examination of eye witness it is contented that the
testimony of the victim would be sufficient to prove the guilt of
the Accused without seeking any corroboration as such non-
examination of the witness is not fatal to the case of the
prosecution. To support this submission he placed reliance of
judgment of the Hon'ble Supreme Court in case of Rameshwar
V/s. State of Rajasthan (1952) SC 54 and Appabhai & Anr. v.
State of Gujarat (1988) SC 696.
10. The learned APP apart from supporting submissions
of counsel for victim, submitted that, the Section 29 provides for
presumption of the offence against the Accused and here in this
case he has failed to rebut the same. It is submitted that the
testimony of victim is consistent with her previous statement so
also the history narrated to the Medical Officer. He also seeks to
take aid of the judgment of the Supreme Court in case of Gurmit
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Singh (Supra).
11. At the outset, this Court finds it appropriate to refer
the judgment of the Hon'ble Supreme Court in case of Nirmal
Parmar (Supra) wherein the law of appreciation of evidence in
respect of sexual offence has been dealt with and summarized as
under:-
11. Law is well settled that generally speaking, oral
testimony may be classified into three categories, viz.: (i)
wholly reliable; (ii) wholly unreliable; (iii) neither wholly
reliable nor wholly unreliable. The first two category of
cases may not pose serious difficulty for the Court in
arriving at its conclusion(s). However, in the third category
of cases, the Court has to be circumspect and look for
corroboration of any material particulars by reliable
testimony, direct or circumstantial, as a requirement of the
rule of prudence.
12. In Ganesan v. State (2020) 10 SCC 573, this Court
held that the sole testimony of the victim, if found reliable
and trustworthy, requires no corroboration and may be
sufficient to invite conviction of the accused.
13. This Court was tasked to adjudicate a matter involving
gang rape allegations under section 376(2)(g), I.P.C in Rai
Sandeep v. State (NCT of Delhi) (2012) 8 SCC 21. The
Court found totally conflicting versions of the prosecutrix,
from what was stated in the complaint and what was
deposed before Court, resulting in material inconsistencies.
Reversing the conviction and holding that the prosecutrix
cannot be held to be a 'sterling witness', the Court opined
as under:
"22. In our considered opinion, the 'sterling witness'
should be of a very high quality and calibre whose
version should, therefore, be unassailable. The court
considering the version of such witness should be in a
position to accept it for its face value without any
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hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more
relevant would be the consistency of the statement
right from the starting point till the end, namely, at
the time when the witness makes the initial statement
and ultimately before the court. It should be natural
and consistent with the case of the prosecution qua
the accused. There should not be any prevarication in
the version of such a witness. The witness should be
in a position to withstand the cross-examination of
any length and howsoever strenuous it may be and
under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons
involved, as well as the sequence of it. Such a version
should have co-relation with each and every one of
other supporting material such as the recoveries
made, the weapons used, the manner of offence
committed, the scientific evidence and the expert
opinion. The said version should consistently match
with the version of every other witness. It can even be
stated that it should be akin to the test applied in the
case of circumstantial evidence where there should
not be any missing link in the chain of circumstances
to hold the accused guilty of the offence alleged
against him. Only if the version of such a witness
qualifies the above test as well as all other such similar
tests to be applied, can it be held that such a witness
can be called as a 'sterling witness' whose version can
be accepted by the court without any corroboration
and based on which the guilty can be punished. To be
more precise, the version of the said witness on the
core spectrum of the crime should remain intact
while all other attendant materials, namely, oral,
documentary and material objects should match the
said version in material particulars in order to enable
the court trying the offence to rely on the core
version to sieve the other supporting materials for
holding the offender guilty of the charge alleged."
(underlining ours, for emphasis)
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14. In Krishan Kumar Malik v. State of Haryana (2011) 7
SCC 130, this Court laid down that although the victim's
solitary evidence in matters related to sexual offences is
generally deemed sufficient to hold an accused guilty, the
conviction cannot be sustained if the prosecutrix's
testimony is found unreliable and insufficient due to
identified flaws and lacunae. It was held thus:
"31. No doubt, it is true that to hold an accused guilty
for commission of an offence of rape, the solitary
evidence of the prosecutrix is sufficient provided the
same inspires confidence and appears to be absolutely
trustworthy, unblemished and should be of sterling
quality. But, in the case in hand, the evidence of the
prosecutrix, showing several lacunae, which have
already been projected hereinabove, would go to show
that her evidence does not fall in that category and
cannot be relied upon to hold the appellant guilty of
the said offences.
32. Indeed there are several significant variations
in material facts in her Section 164 statement,
Section 161 statement (CrPC), FIR and
deposition in court. Thus, it was necessary to get
her evidence corroborated independently, which
they could have done either by examination of
Ritu, her sister or Bimla Devi, who were present
in the house at the time of her alleged
abduction. The record shows that Bimla Devi
though cited as a witness was not examined and
later given up by the public prosecutor on the
ground that she has been won over by the
appellant."
15. What flows from the aforesaid decisions is that in
cases where witnesses are neither wholly reliable nor
wholly unreliable, the Court should strive to find out the
true genesis of the incident. The Court can rely on the
victim as a "sterling witness" without further
corroboration, but the quality and credibility must be
exceptionally high. The statement of the prosecutrix
ought to be consistent from the beginning to the end
(minor inconsistences excepted), from the initial
statement to the oral testimony, without creating any
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doubt qua the prosecution's case. While a victim's
testimony is usually enough for sexual offence cases, an
unreliable or insufficient account from the prosecutrix,
marked by identified flaws and gaps, could make it
difficult for a conviction to be recorded.
Keeping in mind the observations of the Hon'ble
Supreme Court, the evidence on record would be appreciated.
12. In the beginning it needs to be recorded that age of
the victim is 6 and ½ years. Her date of birth is 11 th June 2014
which has been proved by producing Birth Certificate on record.
In fact the defence also has not made dispute with regard to the
fact that the victim is minor and child within the meaning of
Section 2(d) of POCSO Act.
13. It is case of the Informant that on the fateful day at
around 9.30 p.m. her daughter (victim) came home shivering
and in frightened state. When Informant questioned about the
reason therefor, she told her that "Vicky uncle (Accused) has
done dirty act with her and accused is put his penis in her mouth
as well as inserted it in her vagina". The Informant claims that
immediately thereafter she went to the Police Station and lodged
FIR at Exhibit-24. She admits contents of the FIR to be correct.
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The First Information Report however, records the narration
given by victim to her as follows :-
"AmmaI Apnao ibalDIMga mao rhnao vaalao ivakI AMkla nao maoro saaqa gaMdI hrkt kI
ivakI AMkla nao maora hat pkDkr mauJao ]nakI poSaaba vaalaI jagah pr pkDnao
ko ilae baaolaa AaOr mauJasao gaMdI gaMdI baat krnao lagaa AaOr mao ivakI AMkla ko
hat kao JaTka dodI."
14. The substantive evidence of Informant before the
Trial Court gives different version of the incident as compared to
the FIR lodged by her to the police. It is sought to be argued on
behalf of the counsel of the victim that considering the mental
stress, some of the contents of the incident are not included in the
report and to support this submission he placed reliance on
judgment of the Hon'ble Supreme Court in case of State of Uttar
Pradesh V/s. Naresh & Ors. (2011) 4 SCC 324 wherein it is held
that the FIR is not encyclopedia and non-inclusion of certain
facts does not lead to the discarding of case of prosecution in a
trial.
15. There cannot be any dispute with regard to the said
prepositions canvassed by the counsel for the victim. However, at
the same time, it needs to be assured that the variance in the FIR
and testimony before the Trial Court is not on
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substantial/material aspects. Any minor/insignificant variation
can be ignored since it does not materially affects the overall case
sought to be made out by prosecution. This rule however, wont
have application in case of exclusion of material facts, having
bearing on the case. Perusal of the statement of Informant before
the Trial Court and in FIR give completely different version of
the occurrence of the incident. Most importantly FIR never
explains the reason for which such difference has occurred. It is
not open for the counsel for the victim through argument to
substantiate the said reason unless it was so explained by the
Informant before the Trial Court.
16. Moreover, it is necessary to see as to whether the said
variances is insignificant or has no material bearing on the
outcome of the case. In the FIR Informant never discloses to the
Police about alleged act of the Accused of putting his penis in the
mouth of the victim. What she had claimed is that Accused
caught hold of the hand of the victim and asked her to hold his
penis. She however states in the substantive evidence before the
Court that it is the case of insertion of the penis into the vagina of
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victim. It is accepted fact that she did not permit genital
examination of the victim. Non-examination of the victim in
order to ascertain any such incident of insertion of the penis into
the vagina has led to, their being no medical evidence to support
the case of the Informant in this regard. It is sought to be argued
on behalf of the victim that in case of putting penis into the
mouth of the victim would not reflect anything from the medical
evidence and therefore non-examination of the genital of the
victim is not fatal to the case of the prosecution. If this fact is
admitted that the prosecution is seeking conviction of the
Accused solely on the basis of the allegation that the Accused has
put his penis into the mouth of the victim, absence of the said
statement in the FIR does not become insignificant or immaterial
fact which could be permitted to be improvised during the course
of the trial. With utmost respect the view expressed by the
Hon'ble Supreme Court in case of Naresh (Supra) the said
judgment does not apply to the present case for the reason that
the change in the version of the incident is material and non
mentioning of the said alleged act done by the Accused to the
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victim would become fatal to the case of the prosecution.
17. Testimony of victim is said to be consistent with the
history given to the Medical officer. It is argued that victim being
aged about 6 and ½ years would have no reason to make false
statement before the Court to implicate the Accused. At the same
time, considering the age of the victim, the Court has to be on the
guard in order to assure that, the possibility of the tutoring is
absent in the case. Victim in her substantive evidence before the
Trial Court states about the incident as under:-
"Vicky uncle called me near the lift. He had shown
me dirty photos on mobile. He asked me to press
his organ of urination (meaning 'penis') he touched
his penis near my organ of urination. The he put
his penis in my mouth."
18. This statement of her however is contrary to the
statement of the Informant before the Court as well as in the FIR,
pertinently informant claims in her examination-in-chief itself
that the history was given to the Medical officer by her. Thus
there is no substance to say that the statement of the victim before
the Court is consistent with the history given to the Medical
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Officer.
19. From the evidence on record the discrepancies which
have occurred in respect of the incident in question can be
highlighted as under:
Sr.No. Statement Statement before Court Statement to Medical
in FIR Officer
1 vEeh vius By Victim: Victim came home
fcfYMax es crying at around 9
jgus okys She was playing in the pm. Mother asked
fodh vady passage of her home. why she was crying,
us esjs lkFk Vicky Uncle called her then she said that
xanh gjdr
to the lift and showed accused took her to
dh] fodh
side of lift to show
vadyus nao her dirty pictures and
her some videos.
maora hat videos on the mobile.
pkDkr He undressed his
mauJao ]nakI He asked her to press pant and asked her to
poSaaba vaalaI his organ of urination touch his penis, he
jagah pr i.e. his penis and then kept asking even
pkDnao ko touched it to her when she refused. He
ilae baaolaa vagina. He then put his
AaOr mauJasao also touched the
gaMdI gaMdI penis in her mouth. same to her vagina
baat krnao and put it in her
After the incident, she
lagaa AaOr mao mouth.
ivakI AMkla came home and told
ko hat kao her mother, who told She vomited and ran
JaTka the same to her father. away. At home, she
dodI." They went to the police explained the
station to file the case. incident to her
mother after repeated
questions. After
which, they went to
file a case.
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2 By Informant:
Victim told Informant
that Vicky uncle (the
accused) did a dirty act
with her, that he put his
organ of urination i.e.
the penis in her mouth
as well as her vagina.
20. The afore-stated discrepancies occurred in the
evidence of the prosecution are not minor but
substantial/material in nature and which indicate that the
evidence of the victim is not of sterling quality in order to base
connection thereupon without seeking corroboration.
21. There is evidence on record to indicate that the
family of the victim and Accused where in inimical terms. In this
regard reference can be made to the testimony of the PW-4
Pramod who is neighbor of victim and Accused. In no uncertain
terms admits about there being disputes and quarrel between two
families. He has also stated about altercations having taken place
between the members of the family in August 2020 when there
was a satanaryan pooja organized at the house of the Accused.
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22. There is no further cross-examination or re-
examination of this witness in order to dispute the facts which she
admits in the cross-examination about disputes/quarrels between
the two families. On one side counsel for the Appellant/Accused
claims that in view of the said dispute, possibility of false
implication was ruled out. Whereas counsel for the victim claims
that the victim is not gave enough to lead to the false implication.
23. No doubt the previous enimity is a double edge
weapon which may prompt a person to commit crime so also
make another to falsely implicate some one therein. However, as
a matter of caution, when there are disputed between the parties,
the Court has to be on guard while appreciating the evidence on
record and the testimonies of the witnesses are required to be
taken with pinch of salt.
24. Though there is less possibility of the parents of a
small girl involving her in the case like one in hand, to falsely
implicate Accused, however the same possibility is not ruled out
completely. The material discrepancies in the testimonies of
victim and Informant compared to their prior statements become
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more relevant and important in view of the previous dispute
between the parties. In the light of these facts, the act of the
mother of the victim having refused the genital examination of
the victim cannot be ignored and brushed aside lightly. It was the
case of the Informant in her FIR that there was insertion of the
penis by the Accused into the vagina of victim, there was no
reason or justification for not permitting Medical Officer to
examine the genital. The excuse sought to be given before the
Trial Court about the illness of the victim does not find place in
the report of of the Medical Officer nor Medical Officer states so
in substantive evidence. Non-examination of the victim on the
material aspect leads to drawing of adverse inference of the
absence of causing of the incident of the Accused inserting the
penis into the vagina of the victim and therefore she being not
allowed to be examined, which would have exposed the said
allegations to be false.
25. Though this Court finds some substance in the
contention of counsel for the victim that there is no cogent
evidence on record with regard to the availability of the CC TV
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footage at the place of the incident. However, the victim admits
that, at the time of occurrence of the incident one Sajid was
present at the spot she claims that she was playing on mobile
phone of her mother whereas Sajid was also playing on mobile. It
is not the law that for the purpose of proving a particular fact a
specific number of witnesses are required. However, when the
independent witness is available and is not examined before the
Court nor his statement is recorded, the burden is upon the
prosecution to explain the same. Here in this case the
Investigating Officer admits to have not recorded statement of
Sajid, without affording any explanation therefor.
26. Recording of the statement of Sajid was absolutely
necessary which would have at least confirmed the fact that the
Accused was present at the spot along with victim. Here in this
case the prosecution seeks conviction of the Accused on the basis
of testimony of interested witnesses whose evidence does not
inspire confidence and hence non-examination of the
independent witness who was present at the spot of the incident
give serious blow to the case of the prosecution. This Court finds
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no hesitation draw adverse inference that, the said witness was
not examined as his statement would have led to the innocence of
the Accused.
27. Insofar as the allegations with regard to the victim
being shown pornographic video and photograph, testimony of
the victim indicates that the mobile phone on which she was
playing was taken away by the Accused and from the said mobile
phone videos and photos were shown to her. Whereas she further
states that those videos were being shown from the mobile of the
Accused. The victim identifies the videos shown to her however
the said testimony of the victim does not inspire confidence for
the reason that at one place she claims that the videos were shown
from the mobile phone which she was having i.e. her mother's
mobile phone whereas later on she she claims that she was shown
videos from the mobile phone of the Accused. Most importantly
such act of the Accused of showing obscene videos and photos
finds no place in the FIR.
28. Considering the dispute between the parties and
having regard to the nature and quality of the evidence led before
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the Trial Court, it cannot be said that the prosecution has
discharged his burden upon proving the guilt of the Accused
beyond reasonable doubt. Needless to say that, even in the trial
under the provisions of POCSO, the prosecutions burden of
proving the guilt of the Accused beyond doubt does not stand
dispensed with. As far as rebuttance of the presumption is
concerned, the Accused can rebut the same by leading evidence
even by cross-examining the witness of the prosecution. Herein
this case the defense was successful in rebuttance thereof by
bringing material admissions from the witnesses during cross-
examination.
29. Having regard to the above discussion, it cannot be
held that the guilt of the Accused has been proved beyond doubt
and hence the judgment and order of conviction of the Accused
is not sustainable in law. Hence, order.
ORDER
(i) Appeal stands allowed.
(ii) The Appellant/Accused stands acquitted of all
charges.
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(iii) The amount paid, if any, be refunded to the
Accused.
(iv) The Appellant be released forthwith from the
jail, if not, required in any other crime.
(v) Registry to convey this order to the jail
authorities for its implementation.
(vi) All pending Applications are disposed of.
(R.M. JOSHI, J.)
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