Urmila Joshi Phalke, J.

1. Heard finally with the consent of learned counsel for the parties.

2. In this appeal, the challenge is to the judgment and order dated 13.08.2021 passed by Extra Joint District Judge and Additional Sessions Judge, Akola in Sessions Trial No.92/2019 by which the accused is convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.1,00,000/-, in default further simple imprisonment for six months.

3. Brief facts which are necessary for the disposal of the appeal are as under:-

The complainant, who is mother of the victim, lodged report with police alleging that she is residing at village Ajani Bk. and her daughter is studying in their Chimanlalji Ramprasad Bharatiya School, Paranda in 4th standard. On 10.07.2019 there was awareness programme on the subject of sexual exploitation of children in the school of the victim. Due to the said programme the victim became aware and disclosed to her that while she was studying in 2nd standard, the accused in absence of family members, used to come to their house and disrobed her and subjected her for the penetrative sexual assault and continued with such act till she was studying in 4th standard. It was further disclosed by her that accused threatened her not to disclose the fact to the parents. On getting such information the informant called the mother of the accused. However, she did not turn and accused was absconding since 26.06.2019. Therefore, the informant approached to the police station. On the basis of said information police registered the crime against the present accused.

4. On registration of crime the wheels of the investigation started rotating. During investigation the Investigation Officer has referred the victim for medical examination. Her medical certificate was obtained. Panchanama regarding spot of incident, the seizure of the clothes of the victim, seizure of the clothes of accused was drawn. The relevant statements of the witnesses are recorded and after completion of the investigation, the charge-sheet came to be filed. The learned trial Judge has framed the charge vide Exh.18. The contents of the charge are explained to the accused for which he pleaded not guilty. In order to prove the charge against the accused, prosecution has examined as many as eight witnesses. The learned Judge on consideration of the evidence found the accused guilty of the above offence and sentenced him as stated above. Being aggrieved by the judgment and order the accused has preferred this appeal.

5. Heard Mr. S.V. Sirpurkar, learned counsel for the appellant/accused, Mrs. Sneha Dhote, learned APP for the State and Ms Ayushi Dangre, learned counsel for the victim.

6. It is submitted by learned counsel for the appellant that as far as the evidence of PW-1 (Mother of victim) and PW-2 (Victim) is not inspiring the confidence. He took us through the entire evidence and pointed out that the foundational fact as to the sexual assault with victim when she was in second standard itself was not proved. He further submitted that even accepting that disclosure was made by the victim to the PW-1 informant FIR was lodged on 11.07.2019 at about 18.46 i.e. on the next day evening and there is no explanation as far as delay is concerned. He submitted that entire prosecution case shows that victim was subjected for sexual assault but she was no where stated about the nature of the act committed by the accused and when she was informed about good touch and bad touch in the school and thereafter she disclosed the incident to her mother itself is not established by the prosecution. The prosecution has examined PW-7 (Sandip Vijayrao Kale) who was head master of the school. The evidence on record further shows that there was previous enmity between the family of the informant and the accused over property dispute and due to that reason accused was falsely implicated in the alleged offence. In support of his contention he placed reliance in the case of Kalicharan and Ors. Vs. State of Uttar Pradesh reported in (2023) 2 SCC 583, Debraj Dutta vs. The Sate of West Bengal and another in Criminal Appeal SLP (Crl.) No.16838 of 2025, Suresh Purushottam Ashtankar vs. State of Maharashtra and another reported in 2016 (4) Bom. C.R. (Cri.) 375.

7. Per contra, learned APP submitted that evidence of victim and her mother corroborates the story of prosecution. The victim has specifically stated about the act committed along with her. The injuries on the person of the victim are not sine qua non to attract the offence. She submitted that the age of the victim is also proved by the prosecution. There is no reason for the prosecution witnesses to implicate the accused falsely and the evidence of these witnesses is not shattered during the cross-examination. For all above these reasons the judgment and order of sentence deserves to be maintained by dismissing the appeal.

8. Learned counsel for the victim also reiterated the said contentions and submitted that considering the consistent evidence of the victim as well as her mother sufficiently establishes the guilt of the accused and therefore, the appeal deserves to be dismissed. She placed reliance on the decision of Hon’ble Apex Court in the case of State of Himachal Pradesh vs. Manga Singh reported in (2019) 16 SCC 759.

9. In the backdrop of the evidence on record, it would be just and proper at the out set to consider the evidence of victim and her mother PW-1, who has stated that her daughter who is the victim in this case was studying in 4th standard. There was awareness programme in the school on 10.07.2019 wherein it was informed to the students about the good and bad touch. On that day, when victim returned from the school, she disclosed to her about sexual assault committed by the accused. She is specifically disclosed to her that accused, who subjected her for the penetrative sexual assault. Immediately PW-1 has disclosed the said incident to villagers namely Arun Ingle, Dhammapal Shirale, Rahul Tayade and Lakhan Ingale. She also gave message to the mother of the accused but she did not turn. The accused was also absconding from 26.06.2019. Therefore, she approached to the Police Station and lodged the report. Similarly, evidence of PW-2 victim examined vide Exh.32 shows that accused used to come to her house. He used to show her favour and by taking her inside her house subjected her for sexual assault on many times when she was studying in 2nd standard. She has disclosed the said incident when she was in 4th standard. The cross-examination of PW-1 shows that there was previous enmity between the family of the accused and the informant family on account of property dispute which she has admitted. It further came in her evidence that her house was surrounded by various houses. The cross-examination of victim shows that her parents are agriculturist. The evidence of PW-1 and PW-2 nowhere shows that PW-1 used to leave house for agricultural work on every day.

10. PW-2 has also not stated that her mother used to leave the house by keeping her alone at the house. More over the house of victim is surrounded by many houses. None of these witnesses are examined by the prosecution to substantiate the contention that at any point of time they have witnessed the accused entering into the house of victim in absence of PW-1 or father of victim. The cross examination of PW-2 also shows that after coming from the school she used to play with the neighbouring children.

11. The victim was referred for the medical examination. PW-4 Dr. Shital Paresh Mehata has examined the victim. No external injuries are found on the person of the victim. Only observation of the medical officer there was small opening of hymen of size 0.5 cm and no fresh injury was found.

12. PW-3 Sulochana Fulsing Rathod who acted as a Panch. However, a panchanama was carried out after a lapse of time. Therefore, nothing incriminating was found while drawing panchanama. Therefore, panchanama has no relevance.

13. PW-6 Ramesh Warathe is also another panch who has not supported the prosecution case.

14. The entire case of the prosecution shows that the victim has disclosed the incident as she came to know about such type of the incident requires to be disclosed after she attended awareness programme in the school. PW-7 Sandip Vijayrao Kale was serving as a Head Master in the same school where victim was studied. His evidence nowhere discloses that such type of programme was held in the school on 10.07.2019. His evidence only to the extent of birth date of the victim. There is no whisper in his evidence as to the awareness programme. Therefore, the reason mentioned by the prosecution witnesses that the alleged incident is disclosed by the victim as she came to know that such type of incident are to be disclosed to the parents after attending programme is falsified. As far as the age of the victim is concerned, which is not disputed seriously by the defence counsel. To prove the age of the victim prosecution has examined PW-7 wherein victim was firstly admitted. His evidence shows that date of birth of victim is 09.12.2009 and said entry was taken on the basis of birth certificate issued by Gram Panchayat.

15. PW-8 Vasant Shankar Dongare is examined to prove birth entry of the victim who was serving as a Gram Sevak at Ajani Bk. On the basis of record, he deposed that birth date of victim is 09.12.2009 and it was recorded there. He has produced on record the extract of the birth entry which is at Exh.67. Though PW-7 and PW-8 were cross-examined nothing incriminating brought on record to show that the birth date of victim was not 09.12.2009. Prosecution has also examined PW-5 who is the Investigating Officer who has narrated about the investigation carried out by them. The sum and substance of his evidence is that after receipt of the information he has visited the alleged spot of incident and drawn panchanama. The accused was arrested. Arrest panchanama at Exh.43. He has seized clothes and also seizure clothes of the victim by drawing seizure panchanama which are at Exh.44 and 45. He has obtained school admission extract from the Head Master of the school and birth extract from the Gram Sevak. He has forwarded the clothes and the samples obtained by the Medical officer of the victim and accused for CA analysis and after completion of the investigation he has submitted charge against the accused.

16. His cross-examination shows that he has not recorded statements of Rahul Tayade, Dhammapal Shirale, Arun Ingale and Lakhan Ingale who were knowing about the incident. He admitted that the incident was narrated by the victim to her parents on 10.07.2019. He further admitted that victim has not disclosed the date of the incident in her statement. He also did not inquire with the friends of victim and her neighbours. Another evidence on which prosecution relied upon is the CA certificates which are at Exh. 7 and 8 which shows that no blood no semen is detected either in the samples or on the clothes of the victim as well as accused.

17. The defence of the accused is that he was implicated in the false case as there is previous enmity on account of property. In support of his defence he examined defence witness Arun Pandurang Ingle, who disclosed that on 25.06.2019 there was quarrel between mother of the accused and parents of the victim on account of house property. DW-2 Dhammapal Champatrao Shirale also disclosed that there was dispute between the parents of the victim and accused on account of property. Similar evidence is adduced by DW-3 Lakhan Ingle. These, witnesses are also named by the mother of the victim in her deposition as she has disclosed the said incident to these persons. The evidence of these persons nowhere shows that such type of incident was disclosed to them by the mother of the victim. Though learned APP has cross-examined these witnesses but in the cross-examination also it was never suggested that after PW-1 mother of the victim girl came to know about the incident on the basis of disclosure by the victim, she has narrated the said incident to DW-1 to DW- 3. There was no suggestion by the learned APP that this incident was disclosed to them by the mother of the victim. Thus, though Investigating Officer has not recorded the statement of these witnesses, the accused have examined them as defence witnesses. The evidence of PW-1 specifically disclosed that since her daughter disclosed to her about the incident, she has called Arun i.e. DW-1, DW-2 Dhammapal and DW-3 Lakhan. However, the evidence of these witnesses completely silent about the disclosure made by mother of the victim to them disclosing the incident that accused has subjected her daughter for the forcible sexual assault.

18. Besides the oral evidence the prosecution relied upon the medical evidence. There is no dispute that injuries are not sine qua non for establishing the offence of sexual assault and admittedly, the victim is examined after long gap of the said incident. The victim has also not narrated last incident with her. As per medical report the last incident happened with her prior to 18 days back. However, except the opinion of the doctor that sexual assault cannot be ruled out, no other material brought on record to show that victim was subjected for the sexual assault. Only opinion given by the doctor is that there was opening of hymen to the extent of 0.5 cm. However, there may be various reasons for opening of the hymen.

19. The Protection of Children From the Sexual Offences Act, 2012 is enacted with the specific object that law should operate in a manner that the best interests and well being of the child are regarded as paramount importance at every stage to ensure the healthy, physical, emotional, intellectual, social development of the child. The object is also that the person of culpable state of mind should be punished for harassing the child and keep the society child friendly. The presumption under Section 29 is also operating. However, in the present case, the State has failed to discharge the burden to prove that it was the accused who has subjected the victim for sexual assault. As far as the application of Section 29 of the POCSO Act is concerned, the legal position is clear that the foundational facts would have to be established by the prosecution to make out a case under Sections 3, 5, 7 or 9 of the POCSO Act and thereafter the onus would shift upon the accused to rebut the said statutory presumption.

20. As per the evidence of PW-1 she came to know about the incident from victim on 10.07.2019 as victim was made aware in the school about good and bad touch. However, PW-6 Head Master of the school is completely silent about the said awareness programme. Therefore, the fact that victim has disclosed the incident as she came to know about the good and bad touch first time on 10.07.2019 itself is not established by the prosecution. Even accepting that on 10.07.2019 victim has disclosed the incident to her mother the report was not lodged immediately on the same day but it was lodged on next day and for which no explanation was put forth. As per the evidence of PW-1 after getting the information about the said incident, she immediately disclosed said incident to the villagers namely Arun Ingle who is DW-1, DW-2 Dhammapal Shirale and DW-3 Lakhan Ingale who have not supported this fact that such type of incident was disclosed to them by PW-1. There is no medical evidence to corroborate the case of the prosecution. The cross-examination of the victim shows that the accused was residing along with his parents in the house. None of the neighbouring witness was examined to substantiate the fact that at any point of time accused was seen in the house of victim in absence of her parents. Evidence of PW-1 and PW-2 nowhere discloses that her parents used to go out of the house to do the agricultural work everyday. Thus, all these evidence create a doubt about the prosecution case. There is no explanation as to why the police complaint was not lodged as soon as PW-1 has received the information. Therefore, delay in lodging of the FIR also assumes greater importance.

21. It is well settled that unless the testimony of victim child is found to be fully credible and trustworthy, the question of applying the presumption on the strength of such statement alone would not arise. The foundational fact of sexual assault that would attract the presumption under Section 29 of the POCSO Act would require more than the statement of victim and statement of her mother on the face of it was not credible as what she has stated to her mother was not borne out by her own statement before the trial Court. The victim child has narrated the incident to her mother on 10.07.2019 and she has disclosed the said incident to some of the villagers who were not examined by the prosecution as witnesses but they were examined as defence witness and they have not whispered about any disclosure by the mother of the victim to them about the incident. On the contrary PW-1 has admitted that there was dispute between the parents of the accused on account of the property. PW-1 specifically admitted about the property dispute. The defence of the accused further supported by the evidence of PW-1 to PW-3 which shows that on 25.06.2019 there was quarrel between the victim’s parent and the parents of the accused on account of house property. The sum and substance of the entire evidence is that the prosecution has failed to prove the charges against the accused. The failure on the part of the prosecution also negates the possibility of applying the statutory presumptions.

22. In the light of given facts and the circumstances of the case in a hand, we are of the view that the judgment of conviction would not sustain and therefore, appeal deserves to be allowed.

23. Accordingly, we proceed to pass the following order:-

                   (i) The appeal is allowed.

                   (ii) The judgment and order of conviction dated 13.08.2021 passed by Extra Joint District Judge and Additional Sessions Judge, Akola in Sessions Trial No.92/2019 is hereby quashed and set aside. The accused shall be released forthwith, if he is not required in any other case.

                   (iii) Bail bonds of the accused stands cancelled.

24. Criminal appeal is disposed of.

25. The fees of the appointed counsel be quantified as per rules.

26. Pending application/s, if any, stands disposed of accordingly.