1 apeal606.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.606/2017
Mohan Ambadas Meshram,
aged 43 years, Occ. Labour,
r/o Ratnapur, Tahsil Sidewahi,
District Chadrapur. …..APPELLANT
…V E R S U S…
State of Maharashtra through
Police Station, Chandrapur. …RESPONDENT
——————————————————————————————-
Mr. Mir Nagman Ali, Advocate for appellant.
Mrs. Geeta Tiwari, A.P.P. for respondent.
——————————————————————————————-
CORAM:- MANISH PITALE, J.
DATED :- JULY 3, 2018
ORAL JUDGMENT
1. The appellant herein has been convicted under Section
376 (2) (i) of Indian Penal Code (IPC) and Section 6 of Protection
of Children From Sexual Offences Act, 2012 (POCSO Act) and he
has been sentenced to suffer rigorous imprisonment for 10 years
and to pay a fine of Rs.5,000/-. The Sessions Court, Chandrapur
(Trial Court) has, by the impugned judgment and order, imposed
aforesaid conviction and sentence on the appellant in Special
(Child) Case No.30/2015.
2. The prosecution case in brief is that on 08.01.2015,
prosecutrix (PW4), victim in the present case, was playing under a
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tree near the house of the appellant (accused) which was under
construction. When the friends of the prosecutrix went to answer
call of nature, the appellant lured her into the said house by
offering her Rs.2/-. Friends of the prosecutrix (PW4) returned and
upon hearing the voice, they went to the house and peeped in from
a hole in the wall, where they saw that knicker of the prosecutrix
(PW4) had been removed and the appellant was sleeping on her
body. One of the friends i.e. Sneha (PW5) then went to the house
of Shila Meshram (PW2) and told her about the incident
whereupon Shila (PW2) went near the house of the appellant and
she saw through a hole in the wall that the appellant was
committing sexual intercourse with the prosecutrix (PW4).
3. The said Shila (PW2) then took the prosecutrix (PW4) to
her mother i.e. the first informant; Diksha Meshram (PW1) and
told her about the incident. It was the case of the prosecution that
since father of the prosecutrix was not at home, report pertaining
to the said incident was not immediately lodged by the mother
Diksha (PW1) and that the oral report was submitted on the next
day i.e. on 09.01.2015 at Police Station, Sindewahi, which is the
reason for late registration of the offence against the appellant.
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4. After registration of the offence, the prosecutrix (PW4)
was sent for medical examination and she was examined by
Dr.Jaya Bhongle (PW9). Clothes of the prosecutrix (PW4) were
seized and sent for anlaysis. Police recorded statements of
witnesses and on the basis of the same as also the medical
examination report, the police submitted charge-sheet and the
appellant was made to face the trial.
5. In support of its case, the prosecution examined 10
witnesses, out of whom the material witnesses were Diksha (PW1)
i.e. informant and mother of the prosecutrix, Shila Meshram
(PW2), neighbour and eye witness to the incident, Narendra
Gahane (PW3), Police Patil of village, prosecutrix herself (PW4),
Sneha Meshram (PW5), friend of the prosecutrix who was also eye
witness, Dr. Jaya Bhongle (PW9) and API Bansu Kodape (PW10)
the investigating officer.
6. On the basis of the oral and documentary evidence on
record, the trial Court found that the prosecution had been able to
prove its case beyond reasonable doubt against the appellant and
accordingly, the trial Court convicted and sentenced the appellant
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by the impugned judgment and order. The present appeal has
been filed challenging the same.
7. Mr. M. N. Ali, learned counsel appearing on behalf of the
appellant, submitted that conviction and sentence imposed against
the appellant by the trial Court was unsustainable because there
was lack of evidence to prove the prosecution case. It was pointed
out that there were material omissions and contradictions in the
evidence of the prosecution witnesses, particularly the two alleged
eye witnesses; Shila (PW2) and Sneha (PW5). It was further
contended that the evidence of informant Diksha (PW1), when
compared with the evidence of the aforesaid alleged eye witnesses,
demonstrate material contradictions. It was further contended that
the evidence of the prosecutrix shows that she was a tutored child
witness and that the entire prosecution case was based on such
tutored version given by the prosecutrix, who was only 6 years old.
It was further contended that medical evidence on record also does
not support the prosecution case as there was no injury found on
the genitals or body of the prosecutrix and that the cross-
examination of API Kodape (PW10), the investigating officer,
demonstrated that the material omissions in the evidence of the
other prosecution witnesses stood proved. It was also pointed out
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that the evidence of Sneha (PW5) was rendered unbelievable
because of admission made in the cross-examination that before
deposing in the Court, police had read over her statement to her.
On this basis, it was contended that the impugned judgment and
order deserves to be set aside. The learned counsel placed reliance
on the judgment of Division Bench of this Court in the case of
Suresh s/o Purushottam Ashtankar Vs. State of Maharashtra
and anr.; reported in 2015 (3) Mh.L.J. (Cri) 424 and judgment of
the learned Single Judge of this Court in the case of Rustam s/o
Ukarda Jadhav Vs. State of Maharashtra; reported in 2016 ALL
MR (Cri) 248.
8. Per contra, Mrs. Geeta Tiwari, learned A.P.P. appearing
on behalf of the State, submitted that the omissions and
contradictions, if any, in the evidence of the prosecution witnesses
were minor in nature and perusal of the evidence demonstrates
that there was ring of truth in the prosecution case and that the
impugned judgment and order deserves to be confirmed. It was
submitted that when there were eye witnesses to the incident and
the appellant had not denied presence of the prosecutrix in his
house, there was no reason why the prosecution case could be
disbelieved. It was further submitted that, suggestion of enmity
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between Shila (PW2) with the appellant regarding property dispute
as the basis for false implication, was not supported by any
material on record. It was further submitted that, in any case, the
informant Diksha (PW1), mother of the prosecutrix, did not have
any enmity with the appellant, who was her own brother-in-law
and that it was beyond belief that a mother would allow her six
years old daughter to be used for false implication. On this basis,
the learned A.P.P submitted that the appeal deserves to be
dismissed. Reliance was placed on judgment of the Hon’ble
Supreme Court in Rammi alias Rameshwar Vs. State of M.P.;
reported in (1999) 8 SCC 649.
9. Heard learned counsel for the parties. Before
examining the evidence on record, it would be appropriate to
analyse the basis of conviction and sentence imposed by the trial
Court in the impugned judgment and order. Perusal of the
impugned judgment and order passed by the trial Court shows that
emphasis has been placed on the evidence of the two eye witnesses
to the incident i.e. Shila (PW1) and Sneha (PW5). The trial Court
has found that the evidence of these two eye witnesses was wholly
believable. In fact, as regards the evidence of Sneha (PW5), the
trial Court has gone to the extent of saying that her sole testimony
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was enough to bring home the guilt of the accused. It has been
found by the trial Court that these two witnesses had corroborated
the evidence of each other, which unmistakably pointed towards
guilt of the appellant. Apart from this, the trial Court has
examined the evidence of prosecutrix (PW4) and upon noticing
certain contradictions, the trial Court has held that this was
perhaps because of the tender age of the prosecutrix (PW4). It is
opined that the sole testimony of the prosecutrix could not be
sufficient to hold the appellant guilty but the evidence of Shila
(PW2), Sneha (PW5) and that of Diksha (PW1), was sufficient to
prove the prosecution case.
10. The trial Court has referred to the medical evidence
on record and it is found that the same supported the prosecution
case. It is found by the trial Court that hymen was found to be
torn, although there were no injuries on the genitals and the body
of the prosecutrix. As regards absence of swelling on the genitals,
the trial Court has found that the medical examination of the
prosecutrix (PW4) was conducted beyond 48 hours and that,
therefore, absence of swelling or injury on the genitals of the
prosecutrix (PW4) could not be said to be fatal to the prosecution
case. In this context, as regards delay in registration of FIR, the
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trial Court has not found it to be adverse to the prosecution case.
The trial Court has also referred to presumption that operates
against the appellant under Section 29 of the POCSO Act and it has
been found that the appellant has failed to discharge the burden of
proving the contrary once the presumption operated against him.
These are the factors taken into consideration and relied upon by
the trial Court while convicting and sentencing the appellant in the
aforesaid manner.
11. In this backdrop, it becomes necessary to examine
the evidence of the prosecution witnesses. Diksha (PW1) was the
informant and mother of the prosecutrix. Her evidence, as regards
the manner in which the incident took place, is necessarily hearsay
in nature. This is because she acquired knowledge about details of
the incident on the basis of what was narrated to her by the
prosecutrix (PW4) and Shila (PW2). Therefore, to that extent, her
evidence would not be of much avail to the prosecution. The only
relevant portion of the evidence of this witness is her explanation
regarding delay in approaching the police for lodging the report
regarding the incident. It has come on record that while the
incident allegedly took place at about 12.00 noon on 08.01.2015,
the oral report leading to registration of FIR was lodged by Diksha
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(PW1) at about 8.00 p.m. on 09.01.2015. Ostensible reason given
by Diksha (PW1) for such a delay was that her husband (father of
the prosecutrix) was not available but it is relevant that when the
report was actually lodged with the police on 09.01.2015, only
Diksha (PW1) and Shila (PW2) went with the prosecutrix (PW4) to
the police station. Therefore, explanation for delay in approaching
the police does not appear to be convincing.
12. The evidence of Shila (PW2) who claims to be an
eye witness to the incident shows that when Sneha (PW5) told her
about the appellant committing the act of sexual intercourse with
the prosecutrix, she reached the place of the incident, which was
an under-construction house of the appellant. This witness claims
to have seen the incident from a hole in the wall. A perusal of the
the photos of the house placed on record show that the house was
under- construction and windows and door were open and
incomplete. The hole in the wall, from which this witness claimed
to have seen the incident, is below the window and just above the
height of the said witness. It is also claimed by the said witness i.e.
Shila (PW2) that there were other children also present at the
place when the incident took place and that she took the
prosecutrix after the incident to her house where another child
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namely; Prajakta Meshram called mother of the prosecutrix i.e.
Diksha (PW1) to the house of Shila (PW2) where the victim had
not told anything as she was crying. This is contradictory to the
statement of Diksha (PW1) that the prosecutrix (PW4) came along
with Shila (PW2) and told her about the incident. It is stated in
the evidence of Shila (PW2) that she had tried to encroach on the
land belonging to the appellant. This is significant in the context of
suggestion given by the evidence that there was dispute pertaining
to property between the appellant and Shila (PW2), leading to
false implication. It has further come in the evidence of Shila
(PW2) that at the time of the incident, Police Patil of the village;
Narendra (PW3) and another person were measuring paddy crops
nearby. It is further admitted by this witness that the said Police
Patil Narendra (PW3) was at a shouting distance from her when
the incident took place but she claimed that as she had panicked,
she failed to inform the Police Patil about the said incident. In the
cross-examination of this witness, it has come on record that there
were omissions noticed in her statement given to police pertaining
to Sneha (PW5) informing her about the appellant committing
sexual intercourse with the prosecutrix, that she asked the
prosecutrix to remove her knicker but the prosecutrix refused to do
so and that she had asked the other child Prajakta to call Diksha
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(PW1) to her house where the incident was narrated to Diksha
(PW1). These omissions were put to the investigating officer and
they stood proved. Evidence of this witness, therefore, shows that
there were improvements made in her evidence before the Court
and that there were material contradictions between the evidence
of this witness as compared to that of Diksha (PW1).
13. The prosecution examined Police Patil Narendra
(PW3). The evidence of this witness shows that he was, indeed,
present near the spot of the incident and that Shila (PW2) did not
inform him anything about the said incident.
14. The evidence of prosecutrix (PW4) was crucial for
the prosecution case. A perusal of her evidence shows that she has
admitted in the cross-examination that she was told how she was
to give her statement in the Court and that whatever she deposed
in the Court was as per the directions of her mother Diksha (PW1)
and Shila (PW2). Although, this witness has stated in her
examination-in-chief in support of the prosecution case regarding
the manner in which the incident took place, she has not
specifically stated about the appellant having committed sexual
intercourse with her and she has simply stated that he slept on her
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body. Apart from this, in cross-examination, the prosecutrix (PW4)
has stated that she along with her friend went inside the house of
the appellant where he was resting on sand. She has stated that
she has played for some time and, thereafter, upon hearing voice of
her friends, she came out of house. This is in complete
contradiction to the prosecution case regarding sexual assault by
the appellant on the prosecutrix when she entered the house. The
admissions given in the cross-examination demonstrate that this
witness, who was only about 6 years of age, was tutored to make
statement in the Court.
15. Sneha (PW5) was friend of the prosecutrix who
claimed to be an eye witness to the incident. She claimed to have
seen the incident from a hole in the wall of the under-construction
house from which Shila (PW2) had also seen the incident. It has
been already noted above that the hole in the wall was just above
the height of Shila (PW2). Sneha (PW5), in her cross-examination,
has admitted that her height was about 3.5 Ft. This clearly
demonstrates that the claim of the prosecution that Sneha (PW5)
saw the incident from the hole in the wall, is wholly unbelievable.
Apart from this, in cross-examination, this witness had admitted
that she was accompanied by her father at the time of her
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deposition and that police had read over her statement to her
before giving the evidence. This admission on the part of the said
witness discredits her evidence before the Court. She was a 10
years old child deposing before the Court and statements made in
the cross-examination do show that she could not be said to be an
eye witness to the incident.
16. Dr. Jaya (PW9) is the doctor who had medically
examined the prosecutrix on 10.01.2015 at about 1.50 p.m. i.e.
about 48 hours after the alleged incident. Perusal of the medical
examination report (Exh.-46) and the answers to the queries given
by Dr. Jaya (PW9), show that although there was tear of hymen,
there were no injury marks seen over the body or genitals of the
prosecutrix. The said witness has stated that there was no swelling
found on the genitals of the prosecutrix, but she opined that such
swelling could have been observed if sexual intercourse occurred
within 24 hours. It was also stated by the said witness that she had
not seen any stains of sand, mud or semen on the clothes of the
prosecutrix and further that there may be several reasons for a tear
in the hymen. Thus, the medical evidence did not show any sign of
injury on the genitals of the prosecutrix or on her body.
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17. The investigating officer API Kodape (PW10) has
deposed about the manner in which he carried out the
investigation. In the cross-examination, he has made statement
that proved the omissions in the evidence of the prosecution
witnesses. It is also stated by the said witness that it was not true
that Shila (PW2) had come along with the prosecutrix and the
informant Diksha (PW1), while lodging the report. This also
contradicted the claims made by Diksha (PW1), Shila (PW2) and
the prosecutrix (PW4).
18. The aforesaid analysis and perusal of the evidence
of the material prosecution witnesses, shows that the prosecution
has not been able to place on record convincing evidence to prove
its case beyond reasonable doubt against the appellant. The
evidence of Shila (PW2) and Sneha (PW5), the alleged eye
witnesses, shows that there are not only omissions but material
contradictions in the manner in which they have described the very
same incident. The evidence of Diksha (PW1) informant, also
shows some variance in her statement, as compared with that of
Shila (PW2). The delay in lodging report before the police has also
not been satisfactorily explained in the present case. The
ostensible reason given was that the husband of Diksha (PW1) i.e.
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father of the prosecutrix, was not at home due to which the report
could not be made. But record shows that even when the report
was eventually lodged on 09.01.2015 at about 8.00 p.m. it was
only Diksha (PW1) who approached to the police along with the
prosecutrix. This is also a factor which goes against prosecution.
19. Apart from this, evidence of prosecutrix (PW4) itself
renders prosecution unreliable. The cross-examination of the said
witness shows that she is a tutored witness because she has
conceded to the fact that she had deposed in the Court as per the
directions of her mother Diksha (PW1) and Shila (PW2). She has
also given a version regarding what had happened on the date of
the incident, which was completely contradictory to the
prosecution case and what she herself had stated in her
examination-in-chief. In this situation, it would not be safe to rely
upon the evidence of the said child witness-prosecutrix. In this
context, the law laid down by the Hon’ble Supreme Court in
Radhey Shyam Vs. State of Rajasthan; reported in (2014) 5 SCC
389, becomes relevant, which reads as follows:
“12. In Panchhi, (1998 SCC (Cri) 1561) after reiterating
the same principles, this Court observed that the evidence
of a child witness must be evaluated more carefully and
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witness is an easy pray to tutoring. This Court further
observed that the courts have held that the evidence of a
child witness must find adequate corroboration before it
is relied upon. But, it is more a rule of practical wisdom
than of law. It is not necessary to refer to other
judgments cited by learned counsel because they reiterate
the same principles. The conclusion which can be deduced
from the relevant pronouncements of this Court is that
the evidence of a child witness must be subjected to close
scrutiny to rule out the possibility of tutoring. It can be
relied upon if the court finds that the child witness has
sufficient intelligence and understanding of the obligation
of an oath. As a matter of caution, the court must find
adequate corroboration to the child witness’s evidence. If
found, reliable and truthful and corroborated by other
evidence on record, it can be accepted without hesitation.
We will scrutinize PW-2 Banwari’s evidence in light of
the above principles.”
20. The Hon’ble Supreme Court has also held in the
case of Lallu Manjhi and another Vs. State of Jharkhand;
reported in (2003) 2 SCC 401, that witness could be categorised in
three categories namely; (i) wholly reliable, (ii) wholly unreliable,
and (iii) neither wholly reliable nor wholly unreliable. In case of
the third category, Hon’ble Supreme Court has laid down that,
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corroboration of evidence of such witness is extremely necessary.
In the present case, at the most, the prosecution witnesses,
particularly prosecutrix (PW4) herself, fall in the category of the
witness that was neither wholly reliable nor wholly unreliable. In
this situation, corroboration of her evidence becomes crucial for
proving the prosecution case. In the present case, there is lack of
evidence to corroborate the claim made by the prosecutrix (PW4)
and Shila (PW2) as well as Sneha (PW5) who claimed to be the
eye witnesses to the said incident. The evidence of Sneha (PW5) is
rendered unreliable due to crucial admission made in her cross-
examination that police had read over her statement to her before
deposing in the Court. The law in this regard, as laid down by a
series of judgments, shows that if a witness is permitted to
stealthily refresh his or her memory before entering the Court and
deposing then the evidence of such a witness is rendered
unreliable. This dictum has been laid down as far back as in the
ahiruddin Vs.
judgment of the Privy Council reported in Z
Emperor; reported in AIR 1947 PC 75 and in one of the recent
judgments of Division Bench of this Court in the case of Suresh
s/o Purushottam Ashtankar, supra. In the said case, while
approving the view taken by a learned Single Judge of this Court,
the Division bench has held as under:
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“32. In para 10 of the said reported Judgment, the
learned Single Judge found that Pundlik (PW-1) has
admitted that the police had read over his statement to
him and also told him to tender the evidence as per his
statement. The learned Single Judge has observed thus:
“There would indeed be nothing wrong in the witness
refreshing his memory, but that ought to be done
before the Court and not outside the Court. In order to
test the veracity of a witness, he would be required to
recollect the incident out of his own memory and
should he falter on some material aspect, he could be
allowed to refresh his memory with reference to the
contemporaneous records of the incident created by
the police. It would not be permissible for such witness
to stealthily refresh his memory before entering the
Court and deposing about the entire evidence giving
minute details as if he was reeling them out from his
memory. Therefore, the objection to the reliability of
evidence of PW-2 Prabhakar taken by learned Counsel
for the appellant is valid”.
(emphasis is supplied by us.)
We approve the dictum of the learned Single
Judge in that behalf.”
21. Applying the said position of law to the present
case, it becomes evident that testimony of Sneha (PW5) is rendered
unreliable. Yet, the trial Court has erroneously held in the
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impugned judgment and order that the evidence of Sneha (PW5)
would itself be sufficient to bring home the guilt of the appellant.
Therefore, it is only the evidence of the remaining alleged eye
witness Shila (PW2) that could support the prosecution case. But,
as noted above, there are material omissions in her testimony, duly
proved in the cross-examination of the investigating officer
(PW10), and there are material contradictions rendering her
evidence unreliable. These contradictions could not be said to be
mere variations in the narration of the incident. Therefore, the
learned A.P.P. was not justified in relying upon judgment of the
Hon’ble Supreme Court in the case of Rammi alias Rameshwar
Vs. State of M.P., (supra).
22. In the face of such nature of evidence of prosecution
witnesses, it becomes difficult to accept that the prosecution could
prove foundational facts of its case beyond reasonable doubt. The
absence of proof of such foundational facts would have the result
of presumption under Section 29 of the POCSO Act, not being
triggered at all in the facts of the present case. Although, Section
29 of the POCSO Act raises a presumption and the accused is
required to prove contrary, but no presumption can be absolute.
The presumption would arise only upon the prosecution first
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proving the basic foundational facts of its case before the Court
beyond reasonable doubts. Any other interpretation would do
violence to the fundamental principle enshrined in Article 21 of the
Constitution of India that no person should be deprived of his
liberty without procedure established by law.
23. In any case, the nature of presumption in Section 29
of the POCSO Act would be rebuttable on the touchstone of
preponderance of probabilities. A presumption can be rebutted by
defence either by leading defence evidence or by discrediting the
evidence of the witnesses produced by the prosecution. In the
present case, perusal of cross-examination of the prosecution
witnesses shows that all the material witnesses; Diksha (PW1)
informant, Shila (PW2), prosecutrix (PW4) and Sneha (PW5)
stands discredited. The prosecution case is not made out and in
that backdrop, suggestion of false implication of the appellant due
to property dispute with Shila (PW2) assumes significance. In her
cross-examination, Shila (PW2) has conceded to the fact that she
had indeed tried to encroach upon the land of the appellant.
Learned A.P.P. forcefully argued that there was nothing to show
that there was enmity between Diksha (PW1) informant-mother of
the prosecutrix and the appellant who was her brother-in-law. On
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this basis, it was submitted that suggestion of false implication
deserved to be discarded. But evidence of Diksha (PW1) informant
itself shows that she believed about the manner in which the
incident took place on the basis of what was told to her by Shila
(PW2). It is possible for the mother of the prosecutrix to have
believed what was told to her and that she acted on said narration
of the incident made by Shila (PW2). Therefore, the said
submission made on behalf of the State cannot be accepted.
24. A perusal of the impugned judgment and order
shows that the trial Court has been perhaps moved by seriousness
and heinous nature of the allegations made against the appellant as
he was alleged to have committed sexual intercourse with his own
niece, who was a child of tender age of six years. There is no
doubt that the allegation made against the appellant was of serious
nature but the Court is not supposed to analyse the evidence only
in the backdrop of seriousness of allegations in its mind. The
evidence needs to be convincing and if it does not prove case of the
prosecution against the accused beyond reasonable doubt, the
benefit has to go to the accused. In the present case, the evidence
of prosecution witnesses has fallen way short of proving the
prosecution case beyond reasonable doubt. The medical evidence
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does not support the case of the prosecution at all. There was no
injury found on the body and genitals of the prosecutrix despite the
fact that the allegation of the prosecution was that the appellant,
who was a fully grown man, had sexual intercourse with the
prosecutrix, who was a child of mere six years of age. A perusal of
the entire evidence and material on record shows that the
prosecution case was not proved against the appellant beyond
reasonable doubt and that, therefore, he could not have been
convicted and sentenced under the provisions of the Indian Penal
Code and the POCSO Act.
25. In the light of the above, the instant appeal is
allowed. The impugned judgment and order is set side and the
appellant is acquitted of the offence with which he was charged.
The appellant shall be released from custody, if not required in any
other case.
(Manish Pitale, J.)
kahale
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