[Cites 14, Cited by 0]

Bombay High Court

Akshay S/O. Bhimrao Kapate vs The State Of Maharashtra on 5 February, 2026

2026:BHC-AUG:6162
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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                              CRIMINAL APPEAL NO. 852 OF 2019

          Akshay Bimrao Kapate
          Age: 19 years, Occu.: Agri.,
          R/o Yelegaon, Tq. Ardhapur,
          Dist. Nanded                                            ..APPELLANT

                VERSUS

          1. State of Maharashtra
             Through Police Station Officer
             Police Station Ardhapur,
             Tq. Ardhapur, Dist. Nanded

          2. XYZ                                                  ..RESPONDENTS

                                                ....
          Mr. N.S. Ghanekar, Advocate for appellant
          Ms. U.S. Bhosale, A.P.P. for respondent no.1 - State
          Ms. Renuka Ghule, Advocate for respondent no.2
                                                ....

                                                       CORAM : RAJNISH R. VYAS, J.
                                                       DATE : 05th FEBRUARY, 2026

          ORAL JUDGMENT :

. This appeal takes exception to the judgment passed by Special

Judge, Nanded in Special Case No. 20 of 2015 at the instance of appellant /

original Accused No.1, who was convicted for commission of offence

punishable under Section 376(2) read with Section 34 of the Indian Penal

Code (hereinafter referred to as 'I.P.C.') and under Section 3 of the Protection

of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the Act

of 2012'). He has been sentenced to suffer rigorous imprisonment for twenty

years and to pay a fine of Rs. 5,000/-. The default sentence was also imposed.

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2. The appellant was also convicted for the commission of an offence

punishable under Section 363 of the I.P.C. and sentenced to suffer rigorous

imprisonment for five years and to pay a fine of Rs. 5,000/- with a default

sentence.

3. The appellant was acquitted of the commission of an offence

punishable under Section 3(1)(x) and 3(2)(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989, as well as of an offence

punishable under Section 506 read with Section 34 of the I.P.C. The other

two accused, who were prosecuted, were acquitted of commission of offence

punishable under Sections 363 and 506 read with Section 34 of the I.P.C. and

Section3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989.

4. In short, it is the case of prosecution that the victim, who was at

the relevant time fourteen years, seven months and ten days old, was

subjected to forcible sexual intercourse at the instance of the present

appellant, on 10th April, 2015 to 12th April, 2015. The incident which is

deposed by PW 1 / victim is discussed at length in further part of the

judgment.

5. Since the accused has been convicted for the commission of an

offence under the provisions of the Act of 2012, it would be necessary to see

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whether the victim of the crime was a 'child' as defined under clause (d) of

Section 2 of the Act of 2012.

6. PW 1 is the victim of a crime, who has not stated anything about

her date of birth, except the fact that she was fifteen years of age at the time

of the commission of the offence. She stated that at the relevant time, she was

studying in 9th standard at Z.P. School in the village of Yelegaon. PW 3 is the

father of the victim, who has also not given the specific date of birth of the

victim. He stated in his testimony that at the time of incident, the victim was

running in fifteen years of her age. He has not stated anything about the

victim's education. He has not stated anything about the school. Thus, the

testimony of PW 5, the Headmaster, is required to be looked into.

7. PW 5 / Headmaster in his examination-in-chief has stated that he

was working with Z.P. Central School at village Yelegaon since 15th June,

2018, and the record of the school is in his custody. He submitted that one

Hanmante was the Headmaster of that school before him. He deposed that, as

per the school records, the victim took admission in the school on 12 th June,

2006, and her parents filled in the admission form for the school. He

expressed his willingness to produce copies of the same, as the original was

kept for the school record. He stated that, as per the original admission form,

the victim's date of birth is 07 th October 2000. The admission form was

scrutinised, and Mr. Baldeva, the then Headmaster, admitted the student.

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8. He further stated that the entry of date of birth is taken in school-

cum-admission register, which he had brought at the time of deposition. He

was shown the extract of the same in the proceedings, which tallied with the

original school record at Sr.No.2209. He deposed that, according to the school

admission-cum-leaving register was marked at Exhibit 84, and the true copy

of the admission form was marked at Exhibit 85, whereas the admission form

was marked at Exhibit 86.

9. In cross-examination, PW 5 has stated that the birth certificate of

the victim was not attached to the admission form as per the record available.

He stated that he deposed about the date of birth as mentioned in the

admission form by the father of the victim. He stated that there was also no

document attached to the admission form regarding the victim's caste. He

admitted that he had no personal knowledge about the date of birth or caste

of the victim.

10. If Exhibit 84 is perused, it would show that it is the admission

class in which the student had taken admission'. Column No. 15 shows that

the victim had passed the 7th standard examination. The reason for leaving

the school was that the concerned school did not have further

classes/standards. In this background, if the testimony of PW 1 is considered,

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it would show that she stated that at the time of the incident, she was

studying in the 9th standard at Z.P. School, Yelegaon. Exhibit 86 is the

application preferred by the father of the victim for the victim's admission to

the school. If the aforesaid document is perused, it would reveal that it bears

the signature of the father of the victim.

11. Surprisingly, the father in his testimony has nowhere stated that at

any point in time he either admitted the victim to the aforesaid school or

filled Exhibit 86. In that view of the matter, the best evidence was not

produced by the prosecution before the Court to conclude that the victim was

a 'child' at the time of the commission of the crime.

12. Learned A.P.P. has contended that there is absolutely no reason to

disbelieve either Exhibit 84 or Exhibit 86, since both certificates were issued

by the public servant while performing the public duty. She may be right, but

the fact remains that the foundation of Exhibit Nos. 84 and 86 were not

established by the prosecution. If, according to the victim, at the time of the

incident, she was studying in 9th standard, then Exhibit 85 clearly shows that

she had passed the 7th standard examination and thereafter did not attend

school, as no further classes/standards were available at the school. Her

testimony goes to the root of the matter, and therefore, I conclude that the

prosecution has not proved that on the date of the incident, the victim was a

minor.

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13. This takes me to test the contention of prosecution that it has

proved offence under Section 363 of the I.P.C., so also Section 376(2) of the

I.P.C. and Section 3 punishable under Section 4 of the Act of 2012. Before

dealing with the testimony of the witnesses, it is necessary to see what Section

363 of the I.P.C. speaks about. Section 363 of the I.P.C. prescribes

punishment for kidnapping. Kidnapping is defined under Section 359 of the

I.P.C. It says that kidnapping is of two kinds: kidnapping from India and

kidnapping from lawful guardianship. Section 363 of the I.P.C. prescribes

punishment for kidnapping, that whoever kidnaps any person from India or

from lawful guardianship, shall be punished with imprisonment of either

description for a term which may extend to seven years, and shall also be

liable to fine

14. Section 361 of the I.P.C. deals with kidnapping from lawful

guardianship. It says that whoever takes or entices any minor under sixteen

years of age if a male, or under eighteen years of age if a female, or any

person of unsound mind, out of the keeping of the lawful guardian of such

minor or person of unsound mind, without the consent of such guardian, is

said to kidnap such minor or person from lawful guardianship.

15. Thus, it is crystal clear that if the prosecution proves that the

victim was below 18 years of age and was taken away or enticed, then the

offence under Section 363 of the I.P.C. is attracted.

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16. Since the issue regarding the applicability of Sections 363, 376(2)

of I.P.C., and Section 3 of the Act of 2012 can be decided together, the

testimony is discussed below.

17. PW 1 / victim of crime has deposed that her father was doing

agricultural work and she used to reside jointly with her parents, brother and

grandmother. The incident took place on 11th April, 2015 at about 12:30 p.m.

At that time, she was in 9th standard at Z.P. School in the village of Yelegaon,

and she was 15 years old. Her mother had gone to the field for work. She

denied that the appellant had been to her to hand over a chit at 09:00 a.m.,

when she was proceeding to the field. She stated that it is not true to say that

the appellant wrote on the chit that he loves her. The moment this was

deposed in examination-in-chief before the Court, the prosecution requested

that, since the witness was not supporting the prosecution and resiled from

the earlier statement, the Court may permit to put suggestive questions to the

witness. Accordingly, permission was granted.

18. It is surprising to note that there was absolutely nothing on record

to conclude that the victim had resiled from the earlier part of the statement,

and therefore, granting permission by the Court was absolutely not justified,

in the peculiar facts of the case.

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19. PW 1 / victim of crime was then subjected to cross-examination at

the instance of prosecution in which she stated that on 12th April, 2015, she

lodged the complaint with the police station and the said complaint was

marked below Exhibit 61. She also submitted that her supplementary

statement was recorded by the police, as well as her statement before the

Magistrate. She admitted in cross-examination conducted by the prosecution

that on 10th April, 2015, the accused had forceful sexual intercourse with her

and Accused Nos. 2 and 3 were standing on the common bandh. She admitted

in the cross-examination conducted by the prosecution that Accused No.1 had

committed rape on her on 11th April, 2015. Further, he threatened to kill her

if she disclosed the aforesaid incident to anybody.

20. She stated that she was referred for the medical examination and

stated that the accused belongs to the 'Maratha' community, whereas she

belongs to the 'Mahar' community. She stated that she had handed over the

clothes to the police and had also brought her original caste certificate to the

Court. The original caste certificate was then compared with the photocopy

on record, and thereafter admitted into evidence below Exhibit 62.

21. Before discussing cross-examination at the hands of the defence of

PW 1, it is necessary to note that in examination-in-chief, initially, she had

stated that the incident took place on 11th April, 2015, at about 12:30 p.m.

What incident had taken place on 11th April, 2015, she has not stated. Even

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the victim has not stated anything about the spot of the incident, so far as the

incident dated 11th April, 2015 is concerned. When the prosecution sought

permission to put a suggestion to this witness, i.e., PW 1, she stated that on

12th April, 2015, she lodged the report. It is necessary to mention here that

she has not stated anything about the incident dated 12 th April, 2015, in her

cross-examination conducted by the prosecution.

22. PW 1 / victim of crime, in cross-examination at the behest of

prosecution, had stated that on 10th April, 2015, the accused - Akshay had

forceful sexual intercourse with her, and the accused nos. 2 and 3 were

standing on the common bandh. It is further necessary to mention here that

the spot of the incident dated 10 th April, 2015, is also not brought on record

by the testimony of the victim. In further cross-examination conducted by the

prosecution, she admitted it to be true that Accused No.1 had raped her on

11th April, 2015, and also threatened her. Again, the spot of the incident

dated 11th April, 2015, was not brought on record by the prosecution during

the cross-examination of this witness.

23. The defence then cross-examined this witness, and she admitted

that there is only one Z.P. School in the village Yelegaon. She stated that she

had been to the police station to submit an application and had lodged a

written complaint. She then denied that she had given a written application to

the police, stating that she had an altercation with the accused. She admitted

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that while allowing the application, her parents and relatives were with her.

In cross-examination by the defence, she admitted that her village is 20 km

away from Nanded city, and her house is situated adjacent to the way one

proceeds to the village Yelegaon to Nanded. She admitted that she did not

raise a hue and cry, but she volunteered that the accused asked her not to do

so.

24. She stated that she could not recall the name of the hotel where

they ate 'khichadi'. She admitted that she did not tell the doctor anything and

did not mention the names of the four accused persons at the beginning. She

admitted that she is Boudha, and the caste certificate was obtained after the

incident. She admitted that the fathers of Accused Nos. 1 to 3 had a political

rivalry with her father. She denied having lodged a false complaint against

the accused. If cross-examination of the victim of the crime at the instance of

the defence is perused, it would reveal that she has categorically stated that

she has no acquaintance with the accused before 12th April, 2015.

25. Challenging the testimony of PW 1, Mr Ghanekar, learned counsel

submitted that this witness is wholly unreliable as her testimony would show

that she is not confident about the date on which the incident had taken

place. On one hand, she states that before 12th April, 2015, she was not

acquainted with the accused and on the other hand, she states that on 10 th

and 11th April, 2015, she was subjected to forceful sexual intercourse by the

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accused. He further contended that so far as the spot of the incident dated

10th April, 2015 and 11th April, 2015 is concerned, the same is not brought on

record by the testimony of PW 1. According to him, the victim of the crime

cannot be trusted because she has changed her version time to time. He

further pointed out that the victim was permitted to ask the questions at the

instance of the prosecution. He submitted that there is absolutely no occasion

for granting permission to the prosecution to ask suggestive questions to the

victim since she has not resiled from earlier part of the statement. He

submitted that, as the right to a fair trial is violated, the Court's interference is

required.

26. Per contra, learned A.P.P. contended that the victim of the crime

was fourteen years old. Her evidence is reliable and cogent, and there was

absolutely no reason to implicate the accused falsely.

27. Ms. Ghule, learned counsel for the Respondent No.2 / victim, has

contended that the testimony of the victim is cogent and reliable and just

because there are minor omissions, contradictions and Improvements, it will

not go to the root of the matter.

28. Having discussed the testimony of PW 1, it is necessary to look into

the testimony of the relatives of the victim. PW 3 is the father of the victim,

who, under his examination-in-chief, stated that the incident took place on

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12th April, 2015. When he returned home at about 02:45 p.m., he could not

find the victim at home and therefore enquired about her. PW 3 was told that

the victim had gone to the field at 11.30 a.m. PW 4 / Ananda, who was his

cousin, came to his house and reported that Accused Nos. 1, 2 and 3

kidnapped his daughter from "J to B" road.

29. PW 3 further deposed that the victim returned home at 04:00 p.m.

on the same day. On questioning, she stated that she had been to the field at

11:00 a.m., at which time, Akshay and Navnath were on one motorcycle, and

Sadashiv was on another. According to PW 3, the victim said that the accused

- Navnath - stopped near her and uttered the words, "Ae Maharache,

Dhedache, Gadiwar Mukatyane Bus, Nahi Tar Jive Marto". Thereafter, the

victim was made to sit on the accused Akshay's motorcycle. They took her to

Nanded. Accused - Navnath and Sadashiv were on another motorcycle

following them. PW 3 further stated that the accused persons stopped at a

hotel near Taroda Naka, where they ate khichadi, and the accused compelled

her to eat khichadi under threat to life.

30. He deposed that while returning, the accused stopped their

vehicles on the road. Accused - Akshay took the victim to one Akhada in the

periphery of village Nila. Accused - Navnath and Sadashiv stayed on the road.

Accused - Akshay thereafter asked the victim to remove the clothes. At that

time, the victim tried to run away, but the accused caught her, held her,

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forcibly removed her clothes and then committed forceful sexual intercourse

with her. Accused persons threatened her that if she disclosed the incident at

home, they would kill her. Thereafter, the accused left the victim at the

village behind Z.P. School.

31. According to PW 3, PW 4 / Ananda saw his daughter at Nanded,

and also two witnesses - Sopan and Dipak saw the victim in the village on that

day on the motorcycle of the accused - Akshay. He identified the accused

persons in Court and further stated that, at the time of the incident, the victim

was 15 years old.

32. At this stage, it is necessary to mention here that this witness is

very specific in his deposition that the incident had taken place on 12 th April,

2015. What this witness stated is not at all supported by PW 1/victim in her

testimony.

33. In cross-examination, PW 3 admitted that he did not ask PW 4 -

Ananda as to why he had not obstructed the accused and the victim. He states

that PW 4 / Ananda did not inform him about this incident on the mobile. He

also admitted that he did not inform the police. He further admitted that he

had not gone to the police station after receiving the information from PW

4/Ananda. He further admitted that he did not inform police station on

telephone about kidnapping of his daughter and his daughter / victim

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informed him about the incident on her return to home. He deposed that he

did not know the episode before that. He denied that the victim was having a

love affair with the accused, Akshay. He deposed that he did not tell the

police that the accused - Navnath and Sadashiv uttered the words "Ae

Maharache, Dhedache, Gadiwar Mukatyane Bus, Nahi Tar Jive Marto". Other

suggestions given to this witness were denied.

34. Challenging the testimony of this witness, Mr Ghanekar, learned

counsel has contended that this witness has advanced a totally different story

and has not stated anything about the incidents dated 10 th and 11th April,

2015. What has come into the testimony of PW 3 / father of the victim, is the

incident dated 12th April, 2015. The victim does not even narrate it; therefore,

this witness cannot be relied upon.

35. Mr. Ghanekar submitted that if the testimony of PW 1 and 3 if

examined, it would reveal that the prosecution's story is going in a different

direction, which creates doubt. Therefore, the benefit of doubt ought to have

been given to the accused persons, more particularly, the present appellant.

36. Per contra, learned A.P.P., so also learned counsel for Respondent

No.2 / victim, have stated that there is absolutely no contradiction. According

to them, even the incident dated 12th April, 2015, is part of the charge framed

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against the accused, and, in fact, the testimony of PW 3 regarding the incident

dated 12th April, 2015, fortifies the prosecution's case.

37. Next witness is PW 4 / Ananda, who is the cousin of PW 3 and

consequently the uncle of PW 1 / victim. He has stated that the incident took

place on 12th April, 2015 at 12:00 noon when he was at Shivajinagar, Nanded

and was proceeding towards Raj Corner. While he was waiting at a signal, he

saw the victim and the accused on a motorcycle. The appellant/accused and

the victim were on one motorcycle, and the acquitted accused was on another

motorcycle, following the appellant's motorcycle. As there was a traffic signal,

those persons passed away from the front side, and he tried to chase them but

could not succeed.

38. PW 4 deposed that thereafter, he proceeded to Yelegaon at about

01:00 p.m. and went to the house of PW 3, where the wife and mother of PW

3 were present. He then told them that he had seen the victim with the

accused. He identified all the accused in the Court.

39. In the cross-examination, he stated that there were many shops of

all types at Raj Corner (at the signal). He admitted that there were CCTVs

installed at some point at the traffic signal. Bhagyanagar Police Station is a

two-minute walk from the traffic signal at Raj Corner. He stated in cross-

examination that he saw the victim on the accused's motorcycle. He felt that

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there was some foul play. He did not report the matter to the Bhagyanagar

Police Station or inform the police about this incident. He further admitted

that he did not inform the victim's relatives by phone about the incident, but

personally went to them. He admitted that he did not raise any shouts to stop

the victim or the accused/appellant. He admitted that the victim was a close

relative of his.

40. At this time, Mr. Ghanekar pointed out the conduct of this witness.

He submitted that the victim was admittedly a close relative of this witness

and Bhagynagar Police Station was within stone-throwing distance. Yet this

witness did not attempt to inform the police. He submitted that even a phone

call could have helped the victim, but he did not make one.

41. Per contra, learned A.P.P. contended that there is no definite set of

rules in which a person is required to be acted in a particular situation. She

submitted that every person will act differently in a particular situation. If the

testimony of PW 4 is seen, it would reveal that he has immediately gone to

the house of the victim and informed the mother and grandmother of the

victim. She submitted that nothing more can be expected from this witness.

Learned counsel for the victim has submitted that the testimony of this

witness is natural and there is absolutely no improvement. His testimony, if

perused, would reveal that it inspires confidence.

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42. There is one more witness, who is PW 6 / Dipak, who stated that

on 12th April, 2015, he was at his house in the village and at about 04:00

p.m., when he, along with one Sopan, was going towards Z.P. School from

the sugarcane factory, at that time two two-wheelers came from the opposite

direction. On the first motorcycle, the appellant and the victim were present;

however, he could not identify the persons on the other motorcycle. Both the

motorcycles stopped behind the school. The victim and the appellant were

talking. The victim alighted from the vehicle and started going towards the

house, keeping her head down. Thereafter, all those persons left. He then

learned that the victim had gone to lodge a report.

43. In cross-examination, he admitted that he resides in the village of

Yelegaon, and that the Z.P. School is on the main entry to the village. The

house of the victim is far away from the school, and the victim is the daughter

of his brother. He deposed that nothing happened at Z.P. School. He deposed

that the victim alighted from the motorcycle and went straight to the house.

He deposed that he did not try to stop those three people and that when he

saw the victim on the appellant's motorcycle, he did not find it suspicious. He

admitted that when he saw the victim on the motorcycle of the appellant, it

was time to return from the field. He denied further suggestions.

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44. Mr. Ghanekar argued similarly, which he has argued while

assailing the testimony of PW 4. Even learned A.P.P. and learned counsel for

the victim have reiterated their arguments

45. Ms Bhosale, learned A.P.P. submitted that the prosecution has

proved the case of rape not only from the testimony of PW 1 / victim, but also

from the testimony of PW 8, who was the Medical Officer. PW 8 has deposed

that on 13th April, 2015 he was working as an Assistant Professor with the

Department of Forensic Medicine at Government Medical College, Nanded

and examined the victim at 02:15 a.m., at which time the victim stated to him

that on 07th April, 2015, the appellant had performed forceful sexual

intercourse with her, putting her under the fear of death. He also submitted

that the victim had narrated that the appellant had performed forceful sexual

intercourse with her on 10th April, 2015 and 12th April, 2015, and the last

sexual intercourse was done on 12th April, 2015, around 11:00 a.m. He

submitted that on medical examination of the genital area, he could not find

any loose or matted hairs or any injury. He stated that there was an old

hymnal tear at the 6 O'clock position. He stated that on examination, he gave

the opinion that examination findings neither refused nor confirmed sexual

intercourse, and the final opinion will be given after receipt of the FSL report.

He proved the examination report at Exhibit 94.

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In cross-examination, the defence had tried to make out a case

that, in fact, this witness had not medically examined the victim.

46. Learned A.P.P. then pointed out the testimony of this witness and

contended that what was found in the medical examination was an old healed

hymenal tear at the 6 O'clock position. Therefore, this testimony is enough to

convict the appellant for the commission of an offence punishable under

Section 376(2) of the I.P.C. and under the provisions of the Act of 2012. The

same is supported by learned counsel for the victim.

47. At this stage, it is necessary to note that one more date has

emerged in the testimony of PW 8 at the behest of the victim. The victim,

while narrating history to this witness, has stated that on 07 th April, 2015, the

appellant had performed forceful sexual intercourse with her. This date was

not even reflected in the earlier examination-in-chief or cross-examination of

PW 1, and neither the father of the victim has uttered anything about it. Thus,

three different dates are given by PW 1, 3, and 8. PW 8 has also stated that

findings neither refuse nor confirm sexual intercourse, and the final opinion

would be given after receipt of the FSL report.

48. The prosecution has not brought anything on record to show that

the final report was submitted to substantiate the stand. If the testimony of all

these witnesses is considered as a whole, it would be crystal clear that the

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victim has not uttered anything about the incident dated 12 th April, 2015. In

contrast, PW 3/ father of the victim, has narrated the incident dated 12 th

April, 2015, at length. The victim, however, has stated the incidents on 10 th

April, 2015 and 11th April, 2015, but surprisingly, the places where they

occurred have not been narrated by the victim in her testimony. The conduct

of PW 4 and PW 6 in not informing the police immediately, though the victim

was their close relative, clearly shows that something is missing from the

prosecution that would connect the accused to the crime. Further testimony of

PW 6 that he did not find anything odd in the victim sitting on the appellant's

motorcycle, that both were talking at the time near the Z.P. School, and that

the victim then went away from that place to her house, clearly shows that

PW 6 did not harbour any suspicion. The medical evidence also fails to

support the prosecution's case, as no definite opinion has been given and no

final report is on record. The ring of truth is missing from the prosecution. It

is a well-settled principle of law that the more stringent the punishment, the

heavier is the burden upon the prosecution to prove the case. The manner in

which the prosecution has advanced its case clearly shows that the evidence

produced on record is insufficient to prove the ingredients of the offences

registered. The prosecution has not challenged the acquittal of the co-accused.

49. There is one more aspect to the case. The Investigating Officer

admits that during the investigation, he recorded the statements of the

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victim's mother and grandmother. The Investigating Officer has also admitted

that he has recorded a statement of the hotel owner, where the accused and

victim had taken 'khichadi'. Those statements were part of final report, but

surprisingly, these witnesses were not examined. No doubt, it is a well-settled

principle of law that it is for the prosecution to decide as to which witness

should be examined or not but the fact remains that the testimony of the

victim's mother and grandmother would have been important, since PW 4 has

categorically stated that he immediately informed the mother and

grandmother of the victim about the incident. Even the mother, grandmother,

and uncle of the victim did not take immediate steps to rescue the victim from

the clutches of the accused. The said conduct goes contrary to the natural

human conduct. Though, it is a well-settled principle of law that delay in

lodging the F.I.R. in such cases cannot be a ground to disbelieve the story

advanced by the prosecution; however, the previous and subsequent conduct

would play an important role, and this aspect is also incorporated under

Section 8 of the Indian Evidence Act.

50. Thus, the entire case of kidnapping in the form of enticing or

taking away the victim from the lawful guardianship and submitting her to

forceful sexual intercourse and penetrative sexual assault fails, which

consequently results in allowing the present appeal. Accordingly, the

following order is passed:-

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ORDER

(I) Criminal appeal is allowed.

(II) Judgment and order dated 16th August, 2019 passed by Special Judge, Nanded in Special Case (POCSO) No. 20 of 2015 whereby the appellant - Akshay Bimrao Kapate was convicted for the offence punishable under Sections 376(2) read with Section 34 of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012, so also under Section 363 of the Indian Penal Code is set aside.