[Cites 16, Cited by 0]
Bombay High Court
Amitkuamar S/O Satyanarayan Kushwah vs State Of Mha. Thr. Pso Ps Deori Tah.Deori ... on 5 January, 2026
2026:BHC-NAG:4
1 apeal 169.23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 169 OF 2023
Amitkumar s/o Satyanarayan Kushwah,
Aged about 27 years, Occupation - Kacchi,
R/o Idlapur, Post - Madanpur,
Tahsil - Sikohabad, District - Firojabad
(UP), at Present R/o Durga Chowk,
Deori, District - Gondia. .... APPELLANT
VERSUS
1) State of Maharashtra,
through Police Station Officer,
Police Station, Deori, Tahsil - Deori,
District - Gondia.
2) XYZ (Victim),
through Police Station Officer,
Police Station, Deori, Tahsil - Deori,
District - Gondia.
(Spl. POCSO Case No. 12/2015)
Crime No. 104/2014. .... RESPONDENTS
______________________________________________________________
Mr. Raju Kadu, Sunil Kulkarni and Kunal Dhoble, Counsel for the
appellant,
Ms. H.N. Prabhu, Addl.P.P. for respondent No.1/State,
Ms. Radha Mishra, Counsel (appointed) for respondent No.2.
______________________________________________________________
CORAM : NIVEDITA P. MEHTA, J.
DATE : 5th JANUARY, 2026
JUDGMENT :
The present appeal is preferred by the appellant/accused, who is
aggrieved by the judgment and order dated 21.08.2021 passed by the
2 apeal 169.23.odt
learned Special Judge (POCSO), Gondia in Special Case No.12/2015.
By the said judgment, the appellant was convicted for the offences
punishable under Sections 376, 354-A of the Indian Penal Code (IPC)
and Section 3 read with Section 4 of the Protection of Children from
Sexual Offences Act (POCSO Act) and sentenced to suffer rigorous
imprisonment for three years and to pay a fine of Rs.3,000/-, in default
to suffer rigorous imprisonment for one month, for the offence
punishable under Section 354-A of the (IPC). The appellant was further
sentenced to suffer rigorous imprisonment for ten years and to pay a
fine of Rs.10,000/-, in default to suffer rigorous imprisonment for one
month, for the offences punishable under Sections 3 and 4 of the
Protection of Children from Sexual Offences Act, 2012 (POCSO Act). In
view of provisions of Section 42 of the POCSO Act, the learned Special
Judge imposed alternate punishment under Section 3 read with Section
4 of the POCSO Act instead of Section 376 of the IPC.
2. The prosecution case, in brief, is that on 23.12.2014, the victim
had gone to her school at about 9.30 a.m. At about 1.30 p.m., the
appellant allegedly went to the school and informed the victim that her
brother was admitted in the hospital. Upon receiving this information,
the victim was stated to have taken permission from the class captain,
Neha Parteki, and left the school premises along with the appellant on
his motorcycle.
3 apeal 169.23.odt
3. The victim and the appellant proceeded to Government Hospital,
Deori, where the victim's mother was present with her brother. The
mother asked the victim to bring warm clothes from home. Accordingly,
the victim again went home with the appellant, collected the clothes,
and handed them over to her mother at the hospital. The victim
informed her mother that she was returning to school.
4. It is alleged that while taking the victim back, the appellant did
not stop the motorcycle near the school despite the victim's request.
Instead, he allegedly took her towards Keshori Lake on Shedepar Road,
stopped the motorcycle, caught hold of the victim's hand, dragged her
towards the forest and forcibly kissed her. Inspite of protest from the
victim, the appellant did not release her hand. Then the victim got her
hand released and rushed towards the road. At that time, the school
Peon Shri Gondhale was standing there along with some other persons.
5. The prosecution further alleged that the appellant committed
sexual intercourse upon the victim inside the forest. After the victim's
brother was discharged from the hospital, the victim went to Police
Station, Deori, and lodged a report regarding the incident.
6. On the basis of the said report, Crime No.104/2014 came to be
registered initially for the offences punishable under Section 354-A of
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IPC and Section 12 of the POCSO Act. During the course of
investigation, the Investigating Officer prepared the spot panchnama,
seized the motorcycle, sent the victim and the appellant for medical
examination, recorded statements of witnesses and forwarded the
seized articles for chemical analysis.
7. Subsequently, on the basis of a supplementary statement of the
victim, allegations of forcible sexual intercourse were introduced and
offences under Section 376 of IPC and Section 3 read with Section 4 of
the POCSO Act were added. After completion of the investigation, the
charge-sheet was filed.
8. The learned trial Court framed Charge (Exhibit 3) against the
appellant under Sections 376 and 354-A of IPC, Sections 3 read with 4
of the POCSO Act, and Sections 3(1)(xi) and 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(Atrocities Act). The appellant pleaded not guilty and claimed to be
tried.
9. The prosecution examined 21 witnesses. The statement of the
appellant was recorded under Section 313 of the Code of Criminal
Procedure. The appellant denied all allegations and entered the witness
box as Defence Witness No.1.
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10. After appreciating the evidence on record, the learned Special
Judge convicted the appellant for offences under Sections 376 and 354-
A of IPC and Section 3 read with Section 4 of the POCSO Act, while
acquitting him of the offences under the Atrocities Act.
11. Heard Mr. Kulkarni, learned Counsel for the appellant, Mrs.
Prabhu, learned Additional Public Prosecutor for the State, and Ms.
Radha Mishra, learned Counsel for the victim.
12. Submission on behalf of the Appellant :
12.1 Learned Counsel for the appellant submitted that the initial FIR
dated 24.12.2014 discloses allegations only of catching hold of the
victim's hand and forcibly kissing her, attracting Section 354-A of the
IPC and Section 12 of the POCSO Act. It was argued that the allegation
of rape was introduced subsequently by way of a supplementary
statement, which amounts to a material improvement.
12.2 Learned Counsel for the appellant further submitted that the
entire prosecution case rests solely on the testimony of the victim,
which itself is not consistent and suffers from material improvements. It
was argued that when the initial version given by the victim
immediately after the incident discloses only an offence under Section
354-A of the IPC, the subsequent introduction of allegations of rape in
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a supplementary statement, without any contemporaneous
corroboration, renders the prosecution version doubtful.
12.3. The victim stated that the incident occurred between 3.00 p.m.
and 4.00 p.m., and that she reached home between 5.00 p.m. and 6.00
p.m., when her father was present, yet she did not disclose the incident
to him. Contrary to this, the father of the victim deposed that he was
taken to the spot of incident and thereafter took the victim to the
hospital. These contradictory versions, according to the appellant,
strike at the root of the prosecution case.
12.4 It was further contended that the evidence of school teachers
and staff is highly suspicious. Though they claimed to be present near
the spot and waiting for the victim to come out of the forest, none of
them entered the forest or raised alarm or immediately informed the
police. Their statements were recorded after considerable delay, which
raises a strong possibility of tutoring and afterthought.
12.5 It was further argued that the victim alleged that she was
dragged for 50 to 60 meters and subjected to forcible sexual
intercourse. However, the medical examination revealed no external or
internal injuries on her person. The doctor admitted that hymen
rupture can occur due to cycling or sports like Kabaddi, which the
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victim admittedly used to play. It was submitted that this demolishes
the prosecution's attempt to medically corroborate the allegation of
rape.
12.6 The learned Counsel also pointed out that the victim claimed
that the appellant was beaten by the school peon, yet no injury was
found on the appellant. It was further submitted that the conduct of the
victim, as reflected from her own deposition, is unnatural and
inconsistent with the prosecution story. Though she claimed that she
was forcibly dragged into the forest and sexually assaulted, she
admittedly did not raise any alarm despite the place being accessible
and despite the presence of people on the road. Further, even after
reaching home when her father was present, she did not disclose the
alleged incident to him, which conduct seriously affects the credibility
of her version.
12.7 It was submitted that there are inconsistencies regarding the
timing of the incident, as some witnesses stated that it occurred around
2.00 p.m., whereas the victim stated it occurred between 3.00 p.m. and
4.00 p.m.
12.8 Learned Counsel also submitted that the Chemical Analysis
report does not support the prosecution case, as no semen or blood
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stains were detected on the clothes of the victim or the appellant.
12.9 It was lastly argued that the appellant, in his deposition, stated
that due to monetary disputes with the victim's brother, he was falsely
implicated. It was submitted that this defence was plausible but was
brushed aside by the learned trial Court without proper consideration.
12.10 It was therefore submitted that in view of material
contradictions, improvements and lack of corroboration, the
prosecution failed to prove its case beyond reasonable doubt. The
appellant has already undergone incarceration of more than four years
and six months, which exceeds the sentence for the lesser offence.
13. Submissions On Behalf Of The State And Victim :
13.1 Per contra, the learned Additional Public Prosecutor submitted
that the testimony of the victim is reliable and inspires confidence. The
frightened mental condition of the victim while deposing was noted by
the learned trial Court and explains the initial hesitation in disclosing
the full incident.
13.2 It was contended that though the initial report mentioned a
lesser offence, the supplementary statement clearly discloses rape. It
9 apeal 169.23.odt
was further submitted that the victim's testimony has remained
consistent on the core aspect that the appellant misled her, took her to
an isolated place, and committed sexual assault. Minor discrepancies
regarding timing or sequence of events are bound to occur and do not
go to the root of the matter.
13.3 It was further submitted that teachers and staff members of the
school deposed that they found the victim in a disturbed mental
condition immediately after the incident, and she disclosed the assault
to them at the earliest opportunity. They also stated that they informed
the victim's father and took him to the spot. Their conduct in informing
the victim's father and accompanying him to the spot supports the
prosecution case.
13.4 It was argued that minor omissions and discrepancies are
natural and do not affect the core of the prosecution case. Absence of
injuries is not fatal to the prosecution case, and medical evidence
supports the occurrence of sexual intercourse.
13.5 Learned Additional Public Prosecutor further submitted that the
evidence of the victim cannot be discarded merely on the ground that
the initial report disclosed a lesser offence. It was argued that it is not
uncommon for victims of sexual offences, particularly young girls, to
10 apeal 169.23.odt
initially understate the incident due to fear, shame, and social stigma.
The subsequent disclosure of rape in the supplementary statement and
in Court is therefore natural and believable.
13.6 Learned Additional Public Prosecutor contended that the medical
evidence does not rule out sexual intercourse. Absence of injuries or
semen is not decisive, particularly when there is delay in medical
examination and when the victim did not offer violent resistance due to
fear. It was argued that medical evidence is only corroborative and
conviction can be based solely on the trustworthy testimony of the
victim.
13.7 Learned Counsel for the victim submitted that the learned trial
Court, which had the advantage of observing the demeanor of the
victim, found her testimony to be natural and credible. The frightened
mental condition of the victim while deposing was specifically noted,
which supports the prosecution case. It was therefore contended that
the learned trial Court has properly appreciated the oral and
documentary evidence and has rightly convicted the appellant. The
appeal deserves to be dismissed.
14. Before adverting to the rival submissions and recording
conclusions, it becomes necessary to critically evaluate the testimonies
11 apeal 169.23.odt
of the prosecution witnesses.
15. PW-1 Shivcharan Barse (Panch - Spot & Seizure): PW-1 deposed
that he acted as a panch for spot panchnama and seizure of clothes of
the victim. However, in cross-examination, he admitted that no written
notice was issued to him personally, no movement entry was taken in
his office, and he was deputed merely on oral instructions of his
superior. He further admitted that the spot was not within his personal
knowledge.
The admissions regarding absence of written notice, lack of
official movement entry, and absence of personal knowledge of the spot
seriously weaken the credibility of the spot panchnama. The possibility
of preparation of panchnama in police station cannot be ruled out.
16. PW-2 Victim : The victim alleged that the appellant took her from
school on the pretext of her brother's illness, took her to jungle near
Shivling Mandir near Keshori Lake and committed forcible sexual
intercourse. However, she admitted that she did not give any written
application to leave school, that several important facts stated in Court
were not mentioned in her FIR or police statement, and she could not
assign any reason for such omissions. She further admitted that she did
not immediately disclose the incident to her father.
12 apeal 169.23.odt
Material omissions and subsequent improvements relating to the
manner of assault, alleged public beating of the appellant, and conduct
immediately after the incident materially affect the reliability of her
testimony. The delay in disclosure and contradictions create serious
doubt.
17. PW-3 Manoj Shende (Panch - Blood Samples) : PW-3 deposed
about seizure of blood samples of the accused and victim. In cross-
examination, he admitted that no written notice was issued to him and
that panchnamas were signed in the police station.
Signing panchnamas in police station without written notice
undermines the sanctity of the seizure process and weakens the
evidentiary value of forensic linkage.
18. PW-4 Tulshiram Salame (Teacher): PW-4 stated that he was
informed by a Peon that a girl in school uniform was seen with a boy in
jungle and that the victim told him she was raped. He admitted that he
had no personal knowledge of the incident and that he did not know
when the FIR was lodged.
This witness is not an eye-witness. His evidence is hearsay and
based solely on what the victim allegedly narrated, offering no
independent corroboration.
13 apeal 169.23.odt
19. PW-5 Dashrath Gondhle (Peon): PW-5 stated that he saw the
victim and appellant coming out of jungle arranging clothes and that
the victim told him about forcible intercourse. He admitted that the
school gates remain locked during school hours and that the victim did
not take permission to leave.
Though he claims presence near the spot, he did not witness the
alleged act. His admission regarding lack of permission to leave school
contradicts the prosecution's version that the victim lawfully left school.
20. PW-6 Dr. Gagan Gupta (Medical Officer): PW-6 examined the
appellant and opined that he was capable of performing sexual
intercourse. However, he admitted that he did not examine the
appellant on the date initially stated.
The discrepancy regarding date of examination creates doubt
about procedural correctness and reliability of medical evidence against
the appellant.
21. PW-7 Dipmala Rathod (LPC): PW-7 deposed that she escorted the
victim for medical examination and handed over samples to the
Investigating Officer.
This is a formal witness. Her evidence does not corroborate the
occurrence of the offence.
14 apeal 169.23.odt
22. PW-10 Neha Parteki (Class Captain): PW-10 claimed that she
permitted the victim to leave school. However, she admitted that this
fact was not mentioned in her police statement.
The omission regarding her authority to permit students is
material and raises doubt whether the victim actually obtained
permission to leave school.
23. PW-12 Chimutai Rakshanwar (Teacher): PW-12 admitted that her
statement was recorded one month after the incident and that she did
not disclose the incident to anyone during that period.
Unexplained delay in recording statement and silence for a
month weakens credibility and raises suspicion of afterthought.
24. PW-13 Arun Shahare (Teacher): PW-13 stated that victim told
him that appellant forced himself on her. He admitted that his
statement was recorded after one month.
Delayed statement and absence of direct witnessing makes his
evidence unreliable and merely corroborative hearsay.
25. PW-16 Najukram Kadpate (Teacher): PW-16 admitted that the
victim did not submit any application to leave school and that no report
was lodged by school authorities.
15 apeal 169.23.odt
Failure of school authorities to report the matter and absence of
school records dent the prosecution story regarding victim leaving
school during school hours.
26. PW-21 Dr. Garima Mishra (Medical Officer): PW-21 found no
external or internal injuries on the victim. She admitted that age could
not be conclusively determined without ossification test and that timing
of hymen rupture could not be ascertained.
Absence of injuries and inability to fix timing of sexual
intercourse fails to medically corroborate the prosecution version,
especially considering the alleged manner of assault.
27. Defence Witness (DW-1):DW-1 deposed regarding monetary
transactions with the victim's brother and prior threats of false
implication.
The defence version appears plausible and raises a reasonable
doubt regarding motive for false implication, which the prosecution
failed to disprove.
28. It is well settled that in an appeal against conviction, the
appellate Court is required to re-appreciate the entire evidence on
record and arrive at its own independent conclusions. Though a
16 apeal 169.23.odt
conviction can be based on the sole testimony of the prosecutrix, such
testimony must be of sterling quality and must inspire implicit
confidence. If the evidence suffers from material contradictions,
omissions, or improbabilities, the accused is entitled to the benefit of
doubt.
29. In the present case, the incident is alleged to have occurred on
23.12.2014. The FIR lodged on 24.12.2014 discloses allegations limited
to catching hold of the victim's hand and forcibly kissing her, leading to
registration of offence under Section 354-A of the IPC and Section 12 of
the POCSO Act. The allegation of forcible sexual intercourse was
introduced subsequently by way of a supplementary statement. The
victim herself admitted in cross-examination that she had initially given
only one statement wherein offence under Section 376 of IPC was not
invoked. No satisfactory explanation has been offered as to why such a
serious allegation was not disclosed at the earliest opportunity.
30. Though it is true that victims of sexual offences may hesitate to
disclose the entire incident due to fear or social stigma, it is equally
settled that when a subsequent version introduces a graver offence, the
same must be examined with greater caution and should receive
corroboration from independent or medical evidence. In the present
case, such corroboration is conspicuously absent.
17 apeal 169.23.odt
In Radhu v. State of Madhya Pradesh, (2007) 12 SCC 57; the
Hon'ble Apex Court has held that while courts must be sensitive to the
trauma and hesitation of victims of sexual offences, and must equally
avoid mechanical appreciation of evidence, but at the same time they
must also exercise caution where the allegation is susceptible to false
implication. The determination of whether rape occurred must
ultimately rest on the facts and circumstances of each case, and where
the version is doubtful or expanded to a graver offence, careful scrutiny
and corroboration may be required. The relevant para of the said
judgment is reproduced below :
"6. -------- The courts should, at the same time, bear in
mind that false charges of rape are not uncommon. There
have also been rare instances where a parent has
persuaded a gullible or obedient daughter to make a false
charge of a rape either to take revenge or extort money or
to get rid of financial liability. Whether there was rape or
not would depend ultimately on the facts and circumstance
of each case."
31. The conduct of the victim, as emerging from her deposition, also
raises serious doubt. According to her, she was dragged for about 50 to
60 meters into the forest and sexually assaulted. However, she admitted
that she did not raise any hue and cry, despite the place being
accessible and despite the presence of passersby on the road. Further,
after reaching home, when her father was present, she admittedly did
18 apeal 169.23.odt
not disclose the incident to him. This version stands in contradiction to
the deposition of her father, who stated that he was taken to the spot of
incident by school staff and thereafter took the victim to the hospital.
These inconsistent versions strike at the root of the prosecution case.
32. While the reaction of a victim may vary from person to person,
the Courts cannot ignore conduct which is wholly inconsistent with
normal human behaviour when such conduct is not satisfactorily
explained. In the facts of the present case, the conduct of the victim
creates serious doubt regarding the veracity of the prosecution story.
In Tameezuddin @ Tammu v. State (NCT of Delhi) , (2009) 15
SCC 566; the Hon'ble Apex Court in para 9 has observed as follows:
"9. It is true that in case of rape the evidence of the
prosecutrix must be given predominant consideration, but
to hold that his evidence has to be accepted even if the
story is improbable and belies logic, would be doing
violence to the very principles which govern the
appreciation of evidence in a criminal matter. ......".
33. The evidence of the school teachers and staff also does not
inspire confidence. None of these witnesses is an eye-witness to the
alleged incident. Their testimony is based entirely on what the victim
allegedly narrated to them. Though they claimed that they were
present near the spot and waited for the victim to come out of the
19 apeal 169.23.odt
forest, none of them entered the forest, raised alarm, or immediately
approached the police. Their statements were recorded after
considerable delay, extending up to one month in some cases, without
any explanation. Such evidence, being hearsay and delayed, cannot be
treated as reliable corroboration.
34. The medical evidence assumes significance in the present case.
PW-21, the Medical Officer who examined the victim, found no external
or internal injuries on her person. The doctor admitted that though the
hymen was not intact, the timing of rupture could not be ascertained
and that such rupture can occur due to cycling or sports activities like
Kabaddi, which the victim admittedly used to play. In cases alleging
forcible sexual intercourse involving dragging and resistance, absence
of injuries assumes importance. Though absence of injuries is not
always fatal, in the present case it fails to lend assurance to the
prosecution version.
35. The Chemical Analysis report further weakens the prosecution
case, as no semen or blood stains were detected on the clothes of the
victim or the appellant. In a case alleging completed sexual intercourse,
absence of forensic corroboration, when viewed along with other
infirmities, creates serious doubt regarding the prosecution story.
20 apeal 169.23.odt
36. The evidence of the panch witnesses also suffers from serious
procedural infirmities. PW-1 and PW-3 admitted that no written notices
were issued to them and that panchnamas were signed in the police
station. PW-1 further admitted that he had no personal knowledge of
the spot. These admissions cast doubt on the authenticity of the spot
and seizure panchnamas, thereby affecting the credibility of the
investigation.
37. The appellant, examined as Defence Witness No.1, put forth a
plausible defence of false implication on account of a monetary dispute
with the victim's brother. This defence could not be effectively
demolished by the prosecution. It is well settled that the defence is not
required to prove its case beyond reasonable doubt. If the defence
version appears probable and creates doubt in the prosecution case, the
accused is entitled to benefit of doubt.
In Narender Kumar v. State (NCT of Delhi) , (2012) 7 SCC 171,
the Hon'ble Apex Court has held in paras 28, 29 and 30 which read
thus:
"28. The courts while trying an accused on the charge of
rape, must deal with the case with utmost sensitivity,
examining the broader probabilities of a case and not get
swayed by minor contradictions or insignificant
discrepancies in the evidence of witnesses which are not of
a substantial character.
21 apeal 169.23.odt
29. However, even in a case of rape, the onus is always
on the prosecution to prove, affirmatively each ingredient
of the offence it seeks to establish and such onus never
shifts. It is no part of the duty of the defence to explain as
to how and why in a rape case the victim and other witness
have falsely implicated the accused. The prosecution case
has to stand on its own legs and cannot take support from
the weakness of the case of defence. However great the
suspicion against the accused and however strong the
moral belief and conviction of the court, unless the offence
of the accused is established beyond reasonable doubt on
the basis of legal evidence and material on the record, he
cannot be convicted for an offence. There is an initial
presumption of innocence of the accused and the
prosecution has to bring home the offence against the
accused by reliable evidence. The accused is entitled to the
benefit of every reasonable doubt. (Vide Tukaram v. The
State of Maharashtra, and Uday v. State of Karnataka).
30. Prosecution has to prove its case beyond reasonable
doubt and cannot take support from the weakness of the
case of defence. There must be proper legal evidence and
material on record to record the conviction of the accused.
Conviction can be based on sole testimony of the
prosecutrix provided it lends assurance of her testimony.
However, in case the court has reason not to accept the
version of prosecutrix on its face value, it may look for
corroboration. In case the evidence is read in its totality
and the story projected by the prosecutrix is found to be
improbable, the prosecutrix case becomes liable to be
rejected.
31. The court must act with sensitivity and appreciate
the evidence in totality of the background of the entire case
and not in the isolation. Even if the prosecutrix is of easy
virtue/unchaste woman that itself cannot be a
determinative factor and the court is required to adjudicate
whether the accused committed rape on the victim on the
occasion complained of."
38. On a cumulative appreciation of the entire evidence on record,
this Court finds that the prosecution case suffers from material
22 apeal 169.23.odt
contradictions, unexplained improvements, lack of medical and forensic
corroboration, unreliable hearsay evidence, and serious procedural
lapses. The prosecution has failed to establish the guilt of the appellant
beyond reasonable doubt. The record reveals that the learned trial
Court convicted the appellant under Sections 376, 354-A of the IPC and
Section 3 read with Section 4 of the POCSO Act primarily on the basis
of the subsequent version given by the victim. However, upon careful
scrutiny of the evidence on record, the prosecution has failed to
establish the allegation of forcible sexual intercourse said to have been
committed by the appellant by dragging the victim into the forest, as
subsequently narrated by her. The medical evidence assumes
significance in this regard. The Medical Officer (PW-21), who examined
the victim, categorically noted the absence of any external or internal
injuries on her person and reserved the final opinion regarding sexual
intercourse pending receipt of the Forensic Science Laboratory report.
The Chemical Analysis report, in turn, does not detect the presence of
blood stains or semen on the clothes of either the victim or the
appellant. These circumstances materially weaken the prosecution case.
In the light of such medical and forensic evidence, coupled with
unexplained inconsistencies, anomalies, and material variations in the
versions given by the victim, her testimony does not attain the standard
of a sterling witness so as to sustain conviction for the said offences. In
23 apeal 169.23.odt
these circumstances, this Court is constrained to extend the benefit of
doubt to the appellant.
39. Consequently, the conviction of the appellant for the offences
punishable under Section 376 of the IPC and Section 3 read with
Section 4 of the POCSO Act cannot be sustained. However, considering
the initial version disclosed in the FIR and the evidence on record, the
offence under Section 354-A of IPC and Section 12 of the POCSO Act
stands proved. The record reveals that the appellant has already
undergone rigorous imprisonment of four years and six months. Since
the appellant has already undergone substantial period of
incarceration, he is entitled to be released forthwith. Hence, I proceed
to pass the following order:
Order
(i) Criminal Appeal is partly allowed.
(ii) The judgment and order dated 21.08.2021 passed by the learned
Special Judge (POCSO), Gondia in Special Case No.12/2015 is
hereby quashed and set aside.
(iii) The conviction under Section 354-A of IPC and Section 12 of the
POCSO Act is maintained.
(iv) Since the appellant-accused has already undergone the sentence
prescribed for the offence under Section 354-A of the IPC, he shall
be released forthwith, if not required in any other case.
24 apeal 169.23.odt
(v) The fine, if paid by the appellant under Section 354-A of the IPC,
shall not be refunded.
(vi) The fees of the learned Counsel Ms. Radha Mishra appointed for
the victim be quantified and paid as per rules.
( NIVEDITA P. MEHTA, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 05/01/2026 15:50:12
