Bombay High Court
Maroti Madhav Tikekar vs The State Of Maharashtra on 21 February, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:5137-DB
Cri.Appeal No.143/2021
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.143 OF 2021 WITH
CRIMINAL APPLICATION NO.2443 OF 2021
Maroti s/o Madhav Tikekar,
Age 40 years, Occ. Labour,
R/o Savergaon Mal, Tq. Bhokar,
Gandhewar Colony, Bhokar,
Tq. Bhokar, Dist. Nanded ... APPELLANT
VERSUS
1. The State of Maharashtra
Through Police Station, Bhokar,
Tq. Bhokar, Dist. Nanded
(Copy to be served on the
Public Prosecutor, Bombay High
Court, Bench at Aurangabad)
2. XYZ ... 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 AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 20th January, 2025
Date of pronouncing judgment : 21st February, 2025
JUDGMENT (PER : R.G. AVACHAT, J.) :
The challenge in this appeal is to a judgment and
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order of conviction and consequential sentence, passed by the
Court of Additional Sessions Judge (Trial Court), Bhokar,
District Nanded, in Special (POCSO) Case, No.7/2019. The
material part of the impugned order of conviction and sentence
reads thus :
01) Accused Maroti S/o Madhav Tikekar, Age 40 Years
Occu. Labour R/o Savergaon Mal, Tq.Bhokar at present
Gandhewar colony,Bhokar Tq.Bhokar Dist. Nanded is
hereby convicted u/sec. 235(2) of Cr.P.C. for the
offences punishable under sections 376(2)[f][i][j],
354(A)(1), 323, 504 and 506 of Indian Penal Code and
Sections 4 and 6 of The Protection of Children from
Sexual Offences Act, 2012.
02) Accused Maroti S/o Madhav Tikekar is hereby
convicted u/sec. 235(2) of Cr.P.C for the offence
punishable under sections 376(2)[f][i][j] and he is
sentenced to suffer Life Imprisonment which shall mean
the remainder of that person's natural life and to pay fine
of Rs. 5,000/ (Rs. Five thousand only). In default of fine
he shall undergo simple imprisonment of 6 months.
03) Accused Maroti S/o Madhav Tikekar is hereby
convicted u/sec. 235(2) of Cr.P.C for the offence
punishable under section 354(A)(1) and he is sentenced
to suffer one year Rigorous Imprisonment and fine of
Rs. 2,000/ (Rs. Two thousand only). In default of fine he
shall undergo simple imprisonment of 3 months.
04) Accused Maroti S/o Madhav Tikekar is hereby
convicted u/sec. 235(2) of Cr.P.C for the offence
punishable under section 323 of Indian Penal Code and
he is sentenced to suffer 6 months Rigorous
Imprisonment and fine of Rs. 500/- (Rs. Five hundred
only). In default of fine he shall undergo simple
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imprisonment of 1 month.
05) Accused Maroti S/o Madhav Tikekar is hereby
convicted u/sec. 235(2) of Cr.P.C for the offence
punishable under section 504 of Indian Penal Code and
he is sentenced to suffer one year Rigorous
Imprisonment and fine of Rs. 1,000/ (Rs. One thousand
only). In default of fine he shall undergo simple
imprisonment of 3 months.
06) Accused Maroti S/o Madhav Tikekar is hereby
convicted u/sec. 235(2) of Cr.P.C for the offence
punishable under section 506 of the Indian Penal Code
and he is sentenced to suffer one year Rigorous
Imprisonment and fine of Rs.1,000/ (Rs. One thousand
only). In default of fine he shall undergo simple
imprisonment of 3 months.
07) Accused Maroti S/o Madhav Tikekar is hereby
convicted u/sec. 235(2) of Cr.P.C. for the offence
punishable u/sec.4 and 6 of The Protection of Children
from Sexual Offences Act, 2012, as offence under
section 6 is aggravated and major offence therefore, I am
giving punishment in major offence under section 6 of
POCSO Act, and accused is hereby sentenced to suffer
Life Imprisonment and shall pay fine of Rs.5000/-
[Rs.Five thousand only] In default of fine he shall
undergo simple imprisonment of 3 months.
08) All above substantive sentences shall run concurrently.
09) Accused is punished for life imprisonment which shall
mean imprisonment remainder of that person's natural
life, therefore question does not arise to give set off
under section 428 of Cr.P.C to the accused.
2. The facts giving rise to the present appeal are as
follows :-
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The appellant married P.W.2 - "S" about 10 - 15
years before March 1, 2019. The couple was blessed with a
girl child, who was little over 14 years of age at the material
time. She is P.W.1 - "R" (name withheld). She was a student
of 8th Standard. The appellant, his wife and the victim would
reside together. His wife was not keeping well psychologically.
The appellant was said to be addicted to liquor. For two
months next before March 1, 2019, the appellant would
behave with the victim inappropriately whenever his wife used
to be away from their house. He would touch her
inappropriately.
3. On March 1, 2019, the appellant told his mother
that the doctor had asked him to bring cum from his daughter's
private part for treating his cough. By little past 9.30 p.m., all
of them went to sleep. The victim slept on a cot. Her parents
slept on the floor. Thereafter, the appellant, in undressed
condition, slept on the cot on which the victim was sleeping.
He removed the clothes on the person of the victim and
committed sexual intercourse. He beat up her mother and
threatened both of them of dire consequences if the matter
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was reported to police.
4. The victim decided to relate the incident to her
teacher. As the examination of 10 th and 12th Standard were
underway, she could not meet her Teacher. On 12 March,
when she got the appointment, she related everything to her
Head Mistress and other teachers as well. On their
suggestion, she approached Bhokar Police Station along with
her grandfather and reported the matter. It was registered as
First Information Report (F.I.R. - Exh.9).
5. A crime vide C.R. No.0052/2019 was registered for
offences 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 Offences
Act, 2012
6. The crime was investigated. Crime scene
panchanama was drawn. The appellant was arrested. Both,
the appellant and the victim were medically screened. Clothes
on the person of both of them were seized. All the seized
articles were submitted to Forensic Science Laboratory (FSL).
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Statements of persons acquainted with the facts and
circumstances of the case were recorded. Upon completion of
the investigation, the appellant was proceeded against by filing
a charge sheet.
7. The Trial Court framed the charge. The appellant
pleaded not guilty. His defence was of false implication.
According to him, his wife was not keeping psychologically
well. Both, his wife and the daughter (victim) were residing
along with the appellant's in-laws. Just four months before, the
wife resumed cohabitation with him. The daughter (victim) too
joined them. The grandfather wanted his daughter to have
dissolution of her marriage. He and others had even assaulted
the appellant. The appellant intended to lodge police report
against him. With a view to avoid such prosecution, a false
report has been lodged at the behest of his father-in-law.
8. To bring home the charge, the prosecution
examined 10 witnesses and produced in evidence certain
documents. On appreciation of the evidence in the case, the
Trial Court passed the order impugned herein.
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9. Heard. The learned Advocate appointed to
represent the appellant would submit that, there was delay of
not less than 12 days in reporting the matter to the police. The
victim was subjected to medical screening 20 days after the
incident. The medical evidence and Chemical Analyser's
report do not reinforce the prosecution case. We were taken
through the cross-examination of the victim and her mother to
indicate as to how the appellant's father-in-law had influenced
the victim to lodge the report against him.
10. It was also pointed out that the appellant's wife and
the victim too did repent for filing of a false report. The same is
evident from number of letters written by the victim to her
father post conviction, and the affidavit filed by the victim's
mother.
11. We are conscious of the fact that, post conviction
material would hardly have any bearing on the fate of the
appeal. The learned Advocate ultimately urged for allowing the
appeal.
12. Learned A.P.P. would, on the other hand, submit
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that, the victim was just 14 years of age. The appellant had
threatened to kill her if she made the incident public. Since the
examinations were going on, the victim could not meet the
School Head Mistress or other Teachers for about 10 - 11
days. No sooner she got their appointment, she related
everything to them. Our attention was also drawn to a
circumstance during recording of the victim's evidence. She
was shy of relating as to how the appellant did the alleged act.
She, therefore, gave it to the Trial Court, in writing. The Trial
Court observed the demeanor of the victim. She was weeping.
The learned A.P.P. then took us through the evidence of the
victim's mother and Teachers as well, to submit that the
evidence of the victim has been duly corroborated. The school
record (Exh.48) indicates the victim was a child at the material
time. The medical evidence was also relied on to indicate the
same to have been consistent with the prosecution case. On
the 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 State
of H.P. Vs. Shree Kant Shekari, AIR 2004 SC 4404, wherein
it has been observed :-
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"In the instant case, teacher allegedly raped his
student. She did not disclose the incident to
anybody due to threats given by accused to her.
Her mother knew about the incident when the
victim girl became pregnant. FIR was lodged
thereafter. The unusual circumstances in this case
satisfactorily explained the delay in lodging of the
First Information Report. In any event, delay per
se is not a mitigating circumstance for the accused
when accusations of rape are involved. Delay in
lodging First Information Report cannot be used
as a ritualistic formula for discarding prosecution
case and doubting its authenticity. It only puts the
Court on guard to search for and consider if any
explanation has been offered for the delay. Once it
is offered, the Court is to only see whether it is
satisfactory or not. In a case if the prosecution
fails to satisfactorily explain the delay and there is
possibility of embellishment or exaggeration in the
prosecution version on account of such delay, it is
a relevant factor. On the other hand satisfactory
explanation of the delay is weighty enough to
reject the plea of false implication or
volunerability of prosecution case. As the factual
scenario shows, the victim was totally unaware of
the catastrophe which had befallen to her. That
being so, the mere delay in lodging of First
Information Report does not in any way render
prosecution version brittle."
The learned A.P.P. ultimately urged for dismissal of
the appeal.
13. The learned Advocate appointed to represent the
victim, in the first breath, would submit that, appreciation of the
evidence may indicate the offence might have been
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committed. He would submit that, the prosecution, to bring
home the charge, was required travel a long from "may" to
"must". He would then submit that, subsequent repentance by
the victim or her mother would be of little consequence on the
merits of the matter. He then supported the prosecution case.
It, however, appears that, the victim and her mother want the
appeal to be allowed.
14. Considered the submissions advanced. Perused
the judgment impugned herein. Let us advert to the evidence
on record and appreciate the same.
15. P.W.1 "R" testified that, her mother (P.W.2 "S") was
not 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 abuse
her in filthy language. It was March 1, 2019, she returned
home from school. She took lunch. Did some study. In the
evening by 9.30 p.m., her parents and she went to sleep. She
went to sleep on the cot. Parents slept on the floor. The
appellant came on her cot. He told her that doctor had asked
him to bring liquid (cum) from her private part. Since her
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mother was mentally ill, she believed the appellant. He
(appellant) thereafter undressed himself. He then removed her
undergarment and committed sexual intercourse.
16. The victim further testified that, on the following
day, she went to the school. She made attempt to disclose her
teachers the incident, but for the teachers were engaged in Xth
and XIIth Standard examinations. She therefore, met Shaikh
Madam, Manjramkar Madam and Bembare Madam on 11
March. She disclosed them the incident. On the following day
i.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 next
day 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, they
used to reside with her grandfather. She admitted that, the
appellant and her grandfather were not on talking terms. She
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further testified that, the appellant would tell her grandfather
that he wanted to contract second marriage since wife was not
keeping sound mind. She went on to state that, her
grandfather, therefore, threatened the appellant that he would
see how her performs second marriage (implied threat). She
denied that, 15 days before the incident, quarrel took place
between the appellant and her grandfather. She further denied
that the appellant had been thrashed by her grandfather. She,
however, admitted that, her father had suffered fracture by that
time. According to her, it was the result of fall. She denied
that, her grandfather took her to the teacher and then to the
Police Station and lodged the report with a view to teach the
appellant lesson.
18. P.W.1 further testified that, just four months before
the incident she along with her mother had started residing
with the appellant. For a few years therebefore, they were
residing with her grandfather. Rest of the questions were in
the nature of denial of the evidence in examination-in-chief.
She, however, admitted that, she attended the school regularly
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since March 1 to March 11. Head Mistress Patil Madam was
regularly attending the school.
19. The victim, while deposing before the Trial Court,
was found to have been frightened and was shy to relate about
the incident. She, therefore, gave in writing as to how did the
appellant commit sexual act with her. The said writing was
marked Exh.10. It has been stated therein that the appellant
removed her undergarment and committed coitus.
20. P.W.2 "S" (mother of the victim) testified that, on the
given day, the victim had slept on the cot. She along with her
husband, 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 allow
her to go outside the house. She, therefore, could not relate
her parents on cell phone. The appellant had even threatened
her if the matter is made public.
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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 second
marriage. Her father would ask her to give divorce to the
appellant. She, however, did not listen to him. The appellant
did not allow her father to enter his house. Her father was not
happy with the appellant. For about four years, she was
staying with her parents. It was only six months prior to the
incident she joined her husband (appellant). She was
confronted with a police statement to bring on record an
omission therein to the effect that she did not state that due to
threat given by the appellant she could not relate the incident
to anybody.
22. P.W.3 Shaikh Farida was the Assistant teacher in
the school in which the victim was taking education. She
testified that, the victim was waiting for 2-3 days to meet her. It
was on March 12, the victim met her and told that her father
(appellant) misbehaved with her. She further informed her that
the appellant would inappropriately touch her person. The
appellant would ogle at her. On one day, her mother was not
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at house, that time the appellant tried to embrace her.
Meantime the mother came. The appellant, therefore, relieved
her. She further testified that, the victim was continuously
weeping and was unable to make proper pronouncement of
words. She and another teacher convinced her. It is further in
her evidence that, on 13, the victim related the Head Mistress
and on the following day, she came with her grandfather to the
school. They told the grandfather to ensure immediate action
was taken against the appellant.
During her cross-examination, she testified that,
police recorded her statement on 19 March. The rest of the
questions are in the nature of denial.
23. P.W.4 Chaya Kadam was the Head Mistress of
Digambarrao Bindu Primary School, Bhokar. She produced in
evidence an extract of school admission register, wherefrom
the date of birth of the victim is disclosed as 7/6/2004. She
further testified that, along with admission form, birth certificate
was submitted. The school admission form was filled in by the
victim's grandmother. The document is at Exh.19.
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24. P.W.5 Surekha was the Head Mistress of
Manjulabai Kinalkar Girls High School, Bhokar. She testified
that, there were Standard X and XII examinations underway in
first week of March 2019. She was told by another teacher
that the victim was waiting for her. On March 13, when she
came to her office, the victim and other teacher Manjrekar
Madam were waiting for her. The victim started weeping. The
victim related her that, for the last 2 - 3 months, she was
suffering harassment at the hands of her father (appellant).
She related her that the appellant would inappropriately touch
her person. She further related her that the appellant did
sexual intercourse with her as he used to do with her mother.
She, therefore, asked the victim to come with her grandfather
on the following day. She accordingly came. They asked the
grandfather to take responsibility of the victim.
The cross-examination of this witness is in the
nature of almost denial of her evidence in examination-in-chief.
25. P.W.7 Dr. Raju Tompe examined the appellant and
certified him to be potent. The certificate is at Exh.31.
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26. P.W.8 Dr. Mohan was the Medical Officer. He
medically screened the victim on March 22, 2019. He
recorded the history given by the victim (would be referred
while appreciating the evidence). He testified that, on local
genital examination, he found hymenal injury and old healed
tear at 3, 6, 7 o'clock position. Thereafter he reserved
samples of blood, pubic hair, vaginal swab and nails and its
scrapping for chemical analysis and gave provisional opinion,
that his findings consistent with sexual intercourse, however,
final opinion was kept pending till chemical analysis report was
available.
APPRECIATION :
27. The aforesaid is the evidence adduced in the case.
The offence is serious and if proved, is to meet with a
sentence of imprisonment for life, which shall mean till the end
of the natural life of the culprit or which shall not be less than a
period of 20 years. Serious is the offence, stricter shall be the
proof.
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28. The offence in question allegedly took place on the
night of March 1, 2019. The victim, daughter of the appellant,
was at the relevant time, a student of 8th Standard. Her school
admission form indicate her date of birth was 7/6/2024
(Exh.19). The victim was below 18 years of age when the
offence took place. We have to consider her evidence in the
backdrop of certain facts namely, the mother of the victim was
admittedly not keeping mentally well. For so many years the
victim along with her mother would reside along with the
victim's grandfather. Just 4 - 5 months before the fateful night,
the victim and her mother had started residing with the
appellant. It has been admitted by the victim and her mother
that due to mental illness of the victim's mother, the appellant
had expressed desire to contract second marriage. The
appellant's father-in-law was strongly opposed to the said
proposal. All was not well between the appellant and his
father-in-law. Both of them were even not on talking and
visiting terms with each other. The father-in-law had even
threatened the appellant to ensure as to how would he contract
second marriage. Due to mental illness of the victim's mother,
there used to be frequent quarrels between the couple. It was,
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however, denied that, a few days before, the father-in-law of
the appellant had beaten him up, the appellant thereby
suffered fracture. The victim, however, stated that the father
(appellant) had suffered fracture of his limb due to fall. She
further denied that, the appellant wanted to lodge a report with
police against his father-in-law. She further testified that,
before she came to the Court to give evidence, she and her
mother had been to her grandfather's house a day before and
he accompanied them to the Court.
29. It is the case of the victim and her mother that the
appellant had threatened them of dire consequences if they go
public with the incident. Admittedly, the victim attended the
school 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 of
13 days in lodging the F.I.R. It is true that it was the father -
daughter relationship. The victim was little over 14 years of
age. While she was in the witness box to give evidence, she
was shy of telling the facts as to the way the appellant had
behaved with her. She even wept. She, therefore, narrated
the incident in writing. It is Exh.10. She stated the appellant to
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have sexual intercourse with her. It is further in her evidence
that, the appellant would touch her person inappropriately.
While the appellant committed rape of her, her mother woke
up. The mother too testified that, she pushed the appellant.
He thereupon gave them threats. According to the victim and
her mother, one doctor had asked the appellant to bring cum
from the victim's private part.
30. The victim did not relate the incident to anyone else
until 12 March. True, she testified that she made efforts to
have an appointment of the Head Mistress of her school to
relate the incident. She further testified that, she did not get
the appointment on account of ongoing X and XII Standard
examinations. To this piece of evidence, we can only observe
that 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 victim
related her and the other two teachers in the staff room that
she was waiting for 2 - 3 days to get their appointment. The
victim started crying. The victim told them that her father
(appellant) would harass her. He attempted to touch her with
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bad intention. The appellant would ogle at her. One day her
mother 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 was
continuously weeping and was unable to make proper
pronouncement of words. She and other teachers convinced
the victim. They told her that her mother would be called to the
school to inform her about the conduct and character of her
husband.
32. The evidence of P.W.3 Shaikh Farida indicates that,
although the victim had all the opportunity to share with her
trauma (penetrative sexual assault), the victim did not tell her
of the incident. What the victim narrated her was the
appellant's inappropriate behaviour with her (touching her
person inappropriately) and ogling at her.
33. It was after two days i.e. on 14, the victim along
with her grandfather went to the school.
34. P.W.5 Surekha was the Head Mistress of
Manjulabai Kinalkar Girls High School, Bhokar. She testified
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that, a day before i.e. on 13, victim met her in the company of
Manjramkar Madam. On enquiry with the victim, the victim
broke down. The victim related her that the appellant had
been harassing her for past 2 - 3 months by touching her
inappropriately. When she was asked why it was not reported
to the mother, she (victim) told that, the mother told her that
they would have to suffer, otherwise the appellant may kill
them. The victim then related the Head Mistress the appellant
committed sexual intercourse with her. The Head Mistress,
therefore, asked her to come with her grandfather.
Accordingly, both, the victim and grandfather visited the
school. The Head Mistress and other two lady teachers asked
the grandfather to take the responsibility of the victim and do
the needful. It appears that, thereupon the grandfather of the
victim 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 days
after the alleged incident. In between period, the victim or her
mother did not relate the incident to anyone else. When the
victim related P.W.3 Shaikh Farida on 12 March, the victim did
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not relate anything about penetrative sexual assault. She only
related her of having been harassed by touching her person
inappropriately. It is only on 13, the victim related her Head
Mistress 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 is
not known as to why the investigating officer referred the victim
for medical examination on March 22, i.e. 21 days after the
incident and 9 days after registration of the F.I.R. It was P.W.8
Dr. Mohan who medically screened her. The victim's medical
examination report is at Exh.38. The history stated by the
victim to P.W.8 Dr. Mohan reads thus :
"History stated by victim . . . her father came to
home when no one was in house ... father was in
drunken state, talked her irrelevant and abusively.
That time she tried to go from house. He
forcefully pulled inside house and undressed her
and made sexual contact with her and told her if
she says about incident to anyone he will kill her
so that she lodge complaint."
37. Close reading of the history given by the victim to
the Medical Officer indicates an altogether different version.
She did not relate the appellant to have had penetrative sexual
assault with her. True, it was stated that the appellant had
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undressed her and made sexual contact. When the victim was
very much specific while reporting in the F.I.R. and to the Head
Mistress that the incident took place on the night of March 1,
and mother was at house that time, the history given by the
victim is grossly inconsistent with the victim's oral evidence
and the averments in the F.I.R.
38. The medical screening report of the victim reads
thus :
"Finding consistent with sexual intercourse.
However, final opinion is kept pending till
chemical analysis report made available."
39. P.W.8 Dr. Mohan testified according to his
provisional opinion. The learned A.P.P., in-charge of the case,
did not advert the Medical Officer's attention to C.A's. report to
solicit his final opinion. The learned A.P.P. harped upon the
aforesaid opinion to submit the same to be consistent with the
sexual intercourse. The word, however, appearing in the
opinion and the evidence of P.W.8 Dr. Mohan indicate it was
provisional opinion and final opinion was to be given on receipt
of FSL reports. Meaning thereby, the Medical Officer was not
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firm of his opinion. It is a criminal case. On proof of an
offence, serious consequences follow.
40. On the question of delay, the learned A.P.P. relied
on 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 the
conviction and sentence passed against the appellant is
sustainable in view of the evidence. In our view, the answer
thereto is big "No". To sum up :-
(1) The victim and her mother were staying with the
victim's maternal grandfather for many years.
(2) Just about six months before the incident, both of
them had joined the company of the appellant.
(3) The victim's mother was not keeping mentally well.
(4) There, therefore, used to be frequent quarrels
between the couple.
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(5) The appellant had expressed desire to contract
second marriage.
(6) His father-in-law strongly opposed to the said
proposal.
(7) All was not well between the appellant and his father-
in-law.
(8) Both of them were not on talking and even visiting
terms.
(9) The appellant would not allow his father-in-law to visit
his residence.
(10) It was suggested that, 15 days before the appellant
was assaulted by his father-in-law and thereby he had
suffered fracture of his limb. Although the suggestion
was denied, the victim stated that the appellant
suffered fracture due to fall.
(11) The alleged penetrative sexual intercourse took place
on the night of March 1.
(12) The victim attended the school every day from March
2 onwards.
(13) She could meet P.W.3 Shaikh Farida on March 11.
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(14) During the said meeting, the victim did not related
P.W.3 _ (Teacher) about the appellant to have had
penetrative sexual intercourse with her.
(15) It is not known as to why she did not disclose the
same when she had full opportunity to relate
everything.
(16) It was only on 13, i.e. 12 days after the incident, the
victim related the incident to the Head Mistress.
(17) The F.I.R. was lodged on 14. The maternal
grandfather, who was inimical with the appellant, had
been to the school with the victim, and on instructions
of the Head Mistress, he accompanied the victim to
lodge the F.I.R.
(18) In spite of the F.I.R. to have been lodged 13 days after
the incident, the victim was medically screened on
March 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 of
his opinion.
:: 28 ::
(21) On receipt of FSL reports, those were not shown to
the Medical Officer nor his final opinion was solicited.
(22) The medical history given by the victim is altogether
different than her case in the F.I.R. and examination-
in-chief before the Court.
42. In view of all the aforesaid facts, the criminal
jurisprudence lead us to conclude that the case propounded
by the prosecution 'might' be true and not 'must' be true.
There is another aspect of the matter, to which we do not
propose to give slightest of importance. Since it is made a
part of record of appeal, a reference thereto is warranted.
The victim written number of letters to her father. Those
letters were produced before us by the appellant through
jail. Those letters indicate the victim repented over lodging
of the report. Reading between the lines may suggest the
victim wanted to tell that her report was not correct. Be that
as it may. We are not influenced by those letters.
43. Before parting, we appreciate the assistance
rendered by learned advocate Mr. Satej Jadhav, who was
appointed to represent the respondent No.2 - victim.
:: 29 ::
44. For all the aforesaid reasons, we find the Trial
Court ought not to have convicted the appellant based on
such evidence. The appellant is behind the bars for little
over six years.
45. Since we are not at one with the finding
recorded by the Trial Court, the appeal succeeds. Hence
the order :
ORDER
(i) The Criminal Appeal is allowed.
(ii) The order of conviction and sentence, dated
28/11/2019, passed by Additional Sessions Judge, Bhokar,
District Nanded in Special Case (POCSO) No.07/2019 is
hereby set aside. The appellant is acquitted of the offences
punishable under Sections 376(2)(f)(i)(j), 354(A)(1), 323,
504 and 506 of the Indian Penal Code and Sections 4 and 6
of the Protection of Children from Sexual Offences Act,
2012,
:: 30 ::
(iii) The appellant be set at liberty forthwith if not required
in any other case. Fine amount, if paid, be refunded to him.
(iv) Fees of learned Advocate Ms Ashwini Lomte, who
was 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/-
