Datta Somnath Jadhav vs State Of Maharashtra

S.S. Shinde, J.

Criminal Appeal No. 921 of 2014 filed by accused No.1 Datta Somnath Jadhav, is directed against the Judgment and Order dated 28th October,

2014 passed by the Additional Sessions Judge, Raigad Alibag thereby convicting accused No.1 Datta Somnath Jadhav for the offence punishable

under Section 376(2)(b) of the Indian Penal Code read with Section 5(c), 6 of Protection of Children from Sexual Offences Act (for short,

“POCSO Actâ€) and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.20,000/ and in default to suffer rigorous

imprisonment for two years. The Trial Court also convicted accused No.1 Datta Somnath Jadhav for the offence punishable under Sections 292, 509

of Indian Penal Code read with Section 14 of POCSO Act read with section 67ÂB of Information Technology Act and sentenced him to suffer

rigorous imprisonment for five years and to pay fine of Rs.10,000/, in default to suffer rigorous imprisonment for one year. The Trial Court also

convicted accused No.1 Datta Somnath Jadhav for the offence punishable under Section 342 of Indian Penal Code and sentenced him to suffer

rigorous imprisonment for one year and to pay fine of Rs.1,000/, and in default to suffer rigorous imprisonment for one month. The Trial Court also

convicted accused No.1 Datta Somnath Jadhav for the offence punishable under Section 354 of Indian Penal Code and sentenced him to suffer

rigorous imprisonment for two years and to pay fine of Rs.5,000/, and in default to suffer rigorous imprisonment for five months. All the sentences

were directed to be run concurrently.

Criminal Appeal No. 935 of 2014 filed by accused No.2 Â Vanita Vasant Patil is directed against the Judgment and Order dated 28th October,

2014 passed by the Additional Sessions Judge, Raigad Alibag thereby convicting her for the offence punishable under Section 376(2)(b), 109 of

Indian Penal Code read with Section 5(c), 6 and 17 of POSCO Act and sentencing her to suffer rigorous imprisonment for ten years and to pay fine

of Rs.10,000/Â and in default to suffer rigorous imprisonment for one year. The Trial Court also convicted accused No.2 Vanita Vasant Patil for the

offence punishable under Sections 292, 509, 109 of Indian Penal Code read with Sections 14 and 17 of POCSO Act read with Section 67ÂB of

Information Technology Act and sentenced her to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/, and in default to suffer

rigorous imprisonment for five months. The Trial Court also convicted accused No.2 Vanita Vasant Patil for the offence punishable under Section 342

of IPC and sentenced her to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/, and in default to suffer rigorous imprisonment for

one month. All the sentences were directed to be run concurrently.

Criminal Appeal No. 292 of 2015 is filed by the State for enhancement of the sentence imposed upon accused No.1 â€" Datta Somnath Jadhav and

accused No.2 â€" Vanita Vasant Patil. (for the sake of brevity, hereinafter we would refer Datta Somnath Jadhav as “accused No.1†and Vanita

Vasant Patil as “accused No.2â€​).

All these three Criminal Appeals are arising out of one and the same Judgment and Order passed by the trial Court, hence the same are being

decided by this common Judgment.

The prosecution case, in brief, is as under:

[A] The informant / victim girl [name is concealed] resides at village Mothi Jui, Taluka Uran along with her parents, brother and sisters and was

learning in 5th standard in Z.P. Primary School at village Mothi Jui. Accused No.1 was working as teacher, while accused No.2 was working as

headmistress in the said School. Two months prior to the filing of the report, informant/victim girl was playing in the school premises along with other

students. At that time, accused No.1 called informant and 2Â3 girls and then took informant alone in 6thâ€"A Class room by sending remaining girls to

their class room. Then accused No.1 bolted the said class room from inside and gave Kachha Aam chocolate to the informant and kept the informant

on a bench by saying that he wants to snap her photographs. Then accused No.1 laid the informant on the bench and removed her clothes and

snapped photographs of the chest and private part of the informant on his mobile by assuring to give money. Informant did not narrate the incident to

others. The informant along with her parents came to Uran Police Station and lodged the report on 20th January, 2013, regarding aforesaid incident.

[B] Upon receipt of the report, PSI Patil registered an offence vide Crime No.12 of 2013 and handed over the investigation to PI Â T.D.Patil. PI Patil

recorded the supplementary statement of the informant in which informant stated that accused No.2 bolted the door of computer room from outside,

and accused No.1 committed rape on her and also snapped the photograph of her breast and private part. PI Patil visited the spot and prepared the

spot panchnama. PI Patil referred the informant for medical examination and Dr. Jaya Shrinivasan examined the informant and opined that there was

possibility of evidence of sexual abuse. PI Patil arrested the accused and referred accused No.1 for medical examination. Dr.Bhimrao Kamble

examined accused and opined that accused No.1 was capable to do sexual intercourse. PI Patil seized the wearing clothes of the informant as well as

of accused. He collected the seizure panchnama of the mobiles of accused No.1 and panchnama of the said mobiles prepared in Crime No.10 of 2013

registered at Uran Police Station. API Puri recorded the statements of the girls students including the informant. Then investigation was handed over

to PI Awate who sent the seized articles to C.A. office and collected the C.A. reports. So also he got obtained sketch map of spot through Circle

Revenue Inspector. He collected the muster roll of the students and teachers from Z.P. Primary School, Mothi Jui. During the course of investigation,

it transpired that accused No.1 committed rape on minor informant and accused No.2 abetted accused No.1 in commission of the said crime. So also

accused No.1 taunted and committed sexual assault and harassment of the girl students including the informant and also snapped obscene photographs

of the informant on his mobile. So, Police after completion of investigation, submitted charge sheet in the Court of JMFC, Uran.

[C] As the offence under Section 376 of IPC is exclusively triable by Court of Sessions, so Judicial Magistrate, First Class, Uran committed the case

bearing R.C.C. No. 53/2013 to the Sessions Court for trial.

[D] A charge under Section 376(2)(b), 354, 292, 509, 342, 109 of the IPC and under Section 5(c), 6, 14 and 17 of Protection of Children from Sexual

Offences Act and under Section 67ÂB of Information Technology Act against accused No.1 and accused No.2 was framed vide ExhibitÂ3 and same

was read over and explained to the accused in vernacular. The accused pleaded not guilty and claimed to be tried.

After recording the evidence and conducting fullÂfledged trial, the trial Court convicted and sentenced the Appellants â€" accused for the aforesaid

offences. Hence Criminal Appeal No.921 of 2014 is preferred by Appellant  Datta Somanth Jadhav and Criminal Appeal No.935 of 2014 Appeal is

preferred by Appellant â€" Vanita Vasant Patil challenging the conviction and sentence. Criminal Appeal No.292 of 2015 is preferred by the State for

enhancement of the sentence imposed upon the accused persons.

1 7. Learned counsel appearing for the Appellant Vanita Patil in Criminal Appeal No.935 of 2014 submitted that victim girl has falsely implicated the

Appellant in the alleged incident. Though the victim girl alleged that she was sexually assaulted, she admits that she did not sustain any injury or

bleeding injury marks at the time of alleged incident of rape. Even the Medical Officer (PWÂ14) who examined the victim girl has specifically stated

that the victim girl was not having any external injury on any part of the body including private part and her hymen was intact, and therefore the

version of PWÂ1 victim girl is unbelievable. Learned counsel further submits that version of the victim girl is contrary to the medical evidence. In

support of his submissions, learned counsel placed reliance upon the exposition of law in the case of Pratap Misra and others vs. State of Orissa AIR

1977 SC 1307 , Amar Singh and others vs. State of Punjab(1987) 1 SCC 679 , Jai Ram Prasad

3 Singh Alias Jai Ram Mandal vs. State of Bihar 1990 (1) BLJR 139 and Sham Singh V/s State of Hariyana AIR 2018 SC 3978.

Learned counsel further submits that the victim girl has falsely implicated accused in the incident alleged to have been happened on Sunday, because

on Sunday every school remains closed and there was no reason for the victim girl or the accused to attend the school on Sunday. There was political

pressure in implicating the accused persons in the alleged incident as the record before the trial Court shows that at every time including the time of

filing of the FIR, Sarpanch of the village namely Ashok was very well present along with the victim girl and her parents. Even during the course of

recording of the evidence though in camera, mother of every child witness along with one lady Police Officer were present and therefore the

possibility of tutoring cannot be ruled out.

Learned counsel further submits that neither the informant nor the prosecution witnesses have stated the exact day, month of incident and also their

versions are inconsistent with each other regarding occurrence of the incident. The prosecution has not examined any teacher working in the school as

witness. The accused is falsely implicated in the present case due to village rivalry and due to dispute with some staff members. The version of PWÂ​‐

2 is not believable.

Learned counsel further submits that there is a material contradiction about the place of the incident in the evidence of the victim and other

prosecution witnesses. The informant has stated that alleged incident of snapping obscene photographs took place in 6th â€" A class room and alleged

incident of sexual assault took place in computer room. However, PWÂ2 stated that the alleged incident took place in rice room. The evidence of

PWÂ3 is also not consistent with the evidence of the informant. PWÂ4 stated that alleged incident took place in 7th â€" A class room. The evidence

of PWÂ6 also does not support the prosecution case, and therefore it is 5 doubtful whether really the incident had took place. Thus, there is no

consistency in the evidence of victim girl and other minor student witnesses and so the entire prosecution case falls. Learned counsel in support of his

submissions that children are most untrustworthy class of witness, placed reliance upon the exposition of law in the case of Dasarathi Mahanto V/s

The State 27(1961)CLT 169 and Arbind Singh V/s State of Bihar AIR 1994 SC 1068. Learned counsel submitted that evidence of the prosecution

witnesses is totally inconsistent with the medical evidence and therefore the same is sufficient to discredit the entire prosecution case. In support of his

aforesaid submissions learned counsel relied upon the observations in Para Nos.6 and 14 of the Judgment in the case of Ram Narayan and others vs.

The State of Punjab AIR 1975 SC 1727. Learned counsel further submitted that there is an inordinate delay in filing the FIR and therefore the

prosecution case is after thought and unbelievable. In support of his submissions, learned counsel placed reliance upon the exposition of law in the

case of Surjan and 8 others vs. State of M.P. AIR 2002 SC 476 and Mohd. Ali Alias Guddu vs. State of Uttar Pradesh (2015) 7 SCC 272. Learned

counsel also relied upon the exposition of law in the cases of Ram Swaroop and others V/s State of Rajasthan (2004) 13 SCC 134, and Ram Gopal

Yadav V/s State of Chhattisgarh and another 2018 All M.R. (Cri) 2304 (S.C.), in support of his submissions. Learned counsel prayed that the Appeal

deserves to be allowed.

Learned counsel appearing for Appellant â€" Datta Jadhav in Criminal Appeal No. 921 of 2014 has adopted the arguments advanced by the

learned counsel appearing for the Appellant â€" Vanita Patil. In addition to that, learned counsel submitted that there is an inordinate delay in filing the

first information report and therefore it is doubtful whether really such incident of sexual assault was occurred. The informant vaguely stated in the

FIR that the incident occurred prior to two months but she does not remember the day and thus it is not specifically stated in the FIR actually on which

day the incident occurred. So also the prosecution witnesses also not brought on record, the specific date of the alleged incident. Learned counsel

further submitted that there are material contradictions, omissions and improvements in the statements of the prosecution witnesses. The victim was

examined by the Medical Officer two months after the alleged incident and the prosecution failed to brought on record any medical evidence showing

that sexual assault was committed on the victim girl. Learned counsel therefore submits that the Appeal deserves to be allowed.

Learned A.P.P. appearing for the State has supported the findings recorded by the learned trial Court in convicting both the Appellants. But so far

as the sentence is concerned, learned A.P.P. submits that the trial Court ought to have considered that the victim was a minor girl of 12 years and

heinous crime was committed by a teacher i.e. accused No.1 and in the commission of said crime, accused No.2 abetted him and in such case, there

should not have been any leniency in awarding maximum sentence, and both the accused should have been sentenced for life imprisonment. Therefore

learned A.P.P. prays that Criminal Appeal No. 292 of 2015 may be allowed.

Heard learned counsel appearing for the respective Appellants and learned APP appearing for the Respondent â€" State, at length. With their able

assistance, we have carefully perused the entire notes of evidence so as to find out whether the findings recorded by the trial Court are in consonance

with the evidence brought on record or otherwise.

To prove its case, the prosecution has examined as many as sixteen witnesses. As the allegations are of sexual assault on a minor girl, we would

not disclose the identity of the victim girl, as also the prosecution witnesses who are the minor girls and allegations are of sexual assault. The Supreme

Court in the case of Dinesh Alias Buddha vs. State of Rajasthan (2006) 3 SCC 771 in para 7 of the Judgment, held thus :Â​

“7. We do not propose to mention the name of the victim. Section 227ÂA IPC makes disclosure of the identity of the victim of certain offences

punishable. Printing or publishing the name or any matter which may make known the identity of any person against whom an offence under Sections

376, 376ÂA, 376ÂB, 376ÂB or 376ÂD is alleged or found to have been committed can be punished. True it is, the restriction does not relate to

printing or publication of judgment by the High Court or the Supreme Court. But keeping in view the social object of preventing social victimisation or

ostracism of the victim of a sexual offence for which Section 228ÂA has been enacted, it would be appropriate that in the judgments, be it of this

Court, the High Court or lower court, the name of the victim should not be indicated. We have chosen to describe her as “victim†in the judgment.

(See State of Karnataka v. Puttaraja (2004) 1 SCC 475).â€​

The prosecution has examined PWÂ1 victim girlÂY (to conceal the identity, name is not disclosed). The incident took place in the year 2012 when

the age of victim girl was 12 years. Her evidence was recorded in camera. The record of the trial Court shows that as the victim was minor, initially

the trial Court has asked some questions to the victim girl to ascertain whether she knows the difference between true and false and the importance of

oath. At the time of recording the evidence of informant â€" victim girl in camera, the trial Court has allowed the mother of informant and also one

lady police officer to be present.

The evidence of informant shows that she was residing along with her parents, one sister and one brother. At the time of recording her evidence,

she was studying in 7th standard in Z.P. Marathi school. Her evidence shows that she was studying in the said school since beginning. She knows

accused Nos.1 and 2. Accused No.1 was her class teacher and accused No.2 was Headmistress of the school. She has named other four girl

students who were studying along with her in the said school. Her evidence further shows that she knows other victim girl X (who has filed separate

proceedings). Her evidence further shows that other girls i.e. PWÂ2, PWÂ3 and PWÂ4 were studying in her school. At the time of lodging report

she was studying in 5th standard. Her evidence further shows that on the day of incident, she was playing in the school premises during short recess.

Accused No.1 called her and other three girl students in the office which was near to the school and they went there. Accused No.1 told her to stay

there and sent the remaining girls for taking round. Her evidence further shows that accused No.1 took her in 6thÂA class room and gave her

Kachha Aam chocolate and told her that he will give her Rs.500/Â and he wants to snap her photographs. She was sitting on the bench in the class

room. Accused No.1 lifted up her wearing clothes and then snapped photographs of her breast and private part on his mobile. She told accused No.1

not to do such thing else she will tell his name to her mother. Accused No.1 threatened that, if she discloses about incident, in that case he will beat

her like dog.

The evidence of the victim girlÂY further shows that two days thereafter, accused No.1 again called her in lunch recess. She went to the

computer room. Accused No.2 was standing near the door of computer room and accused No.2 pushed her inside the computer room, bolted the door

of computer room from outside. Accused No.1 was present in the computer room. Her evidence further discloses that, accused No.1 removed her

wearing clothes and also removed his wearing clothes, and then accused No.1 inserted his private part into her private part and committed rape.

Accused No.2 removed the door bolt of the computer room and then she went to her class room.

The evidence of PWÂ1 further shows that there used to be holiday to her school on Sunday. She went to her school on Sunday as her girl friend

told her that accused No.1 has called her. Accused No.1 was standing near computer room. Her evidence further shows that accused No.1 called her

inside the computer room and then removed his clothes. Accused No.1 also threatened her to beat if she did not remove her clothes. Accused No.1

snapped photographs of her breast and private part on his mobile. She narrated the incident to her mother. Then on 20th January, 2013, she went to

Uran police station and lodged report (ExhibitÂ16). Police reduced her report into writing as per her say and she stated that contents of the report

were correct. She also stated that printed FIR (ExhibitÂ17) bears her signature. The evidence of victim girl (PWÂ1) further shows that due to the act

of accused, she felt ashamed. She has stated to the police at the time of filing report that accused No.1 inserted his private part into her private part.

She does not remember when police again called her to police station. Police came to her school and she has shown the place of incident to them.

Police referred her for medical examination. At the time of incident she was studying in 5th standard. When muddemal article No.3 â€" slip and

Muddemal Article No.4 â€" nicker shown to her, she identified the same to be her. When Muddemal Article Nos.1 and 2 â€" mobiles were shown to

her, she identified the same to be accused Nos.1 and No.2. Her evidence further shows that her father was doing the work of fishing and mother was

doing labour work in the field. The parents of other girl students were doing agricultural work. Father of another victim girlÂ​X was no more.

During the course of crossÂexamination by the counsel for accused No.1, the victim girl (PWÂ1) stated that she does not remember the day on

which report was filed. She does not remember the exact date of filing report. She has narrated the incident to her father Ashok and mother prior to

four days of filing report. Her parents and she herself decided to go to police station for lodging report. Her father informed to the respectable

villagers, relatives about the aforesaid incident. Her father informed the incident to her uncle who was doing agricultural work. She does not

remember the names of her neighborus. The parents of two girl friends had come to her house to inquire about the incident. She did not inform to her

girl friends about the incident. When she was called in the computer room during the short recess, at that time the said girl friends saw her while going

into the said computer room. Her three girl friends (names not disclosed) inquired with her when she came into class room. She was present in the

computer room till half an hour. She narrated the incident to her three girl friends. PWÂ1 has specifically admitted that she did not narrate the fact

that accused No.1 inserted his private part into her private part. She did not tell Police at the time of lodging report that accused No.1 inserted his

private part into her private part. Thus defence has brought on record the material contradiction as in her examination in chief victim girl deposed that

she told the said fact to the police while lodging report.

Cross examination of PWÂ1 further shows that the class room of 6thâ€"A and 7thâ€"A were separate and both the class rooms were adjacent to

each other. Accused No.1 took her in 7thâ€"A class room. She again said that accused No.1 took her in 6thâ€"A class room. Accused No.1 did not

take her in 7thâ€"A class room. Thus, victim girl was not sure about the spot of incident. She further stated that Police recorded her supplementary

statement. She did not tell at the time of recording her supplementary statement that it was 7thâ€"A class room and not 6thâ€"A class room. Portion

marked â€" A of her supplementary statement was shown to her and she stated that the same was not correct and she has not stated before Police

and she cannot assign any reason as to why the said portion was written in her Police statement. Her cross examination further shows that at the time

of filing report and recording of supplementary statement, she did not tell Police that accused No.1 took her in the computer room. Thus, these are

material omissions. She has stated before Police at the time of filing report that accused No.1 called three named girl students during short recess. She

has stated before Police at the time of filing report that accused No.1 had told her that he will give her Rs.500/Â and chocolate, but she was unable to

tell as to why the said word “Rs.500/†is not mentioned in her report (Exhibitâ€"16). She has stated before Police at the time of filing report that

she told accused No.1 not to do the said act, or she will tell his name to her mother and accused told her that he will beat her like dog if she disclosed

the incident.

It has further come in the cross examination of PWÂ1 victim girl that she does not remember who was accompanied with her to Police at second

time. She admits that her report and supplementary statement were reduced into writing on the paper. She does not remember whether her mother

narrated the incident to Police at the time of filing report and at the time of recording her supplementary statement. She does not remember whether

accused No.1 was arrested by Police at the time of filing report or not. She does not remember whether any woman namely Neela Tulpule came to

her for inquiry or not. She does not remember the exact month of the incident. Thus, the defence has brought on record that the victim girl does not

remember anything about the incident.

It has also come in the cross examination of PWÂ1 victim girl that the incident occurred three days prior to filing of the report. She knows English

months. She does not remember current month when her evidence was recorded. They were taught English months in the first standard and

thereafter she forgot English months. She never used to write date of homework. She does not remember the exact month in which incident occurred.

She does not remember whether Police seized her clothes or not. Two days after filing the report, Police referred her for medical examination and at

that time, Muddemal slip had worn by her. She does not remember whether she was referred for medical examination prior to filing of report or not.

She does not remember whether doctor made inquiry with her or not. She does not remember whether she narrated the incident to the doctor or not.

Thus, the defence has further brought on record regarding the incident and other events occurred, the victim girl does not remember anything.

During the course of cross examination by the Advocate for the accused No.2 PWÂ1 victim girl stated that she does not remember whether they

proposed to go to Police station for lodging report. She does not remember how many persons were accompanying with her to Uran for lodging

report. In all six girls accompanied her at the time of filing report but she does not remember name of said girls. The said six girls were from her class.

Thus, defence has brought on record that the victim girl even does not remember the names of her girl friends who were studying with her. The victim

girl further stated that she does not remember whether Police made inquiry with the said six girls at the time of filing report or not. They all girls went

in Police Station. She does not remember exact time when they went to Police Station for lodging report. She was unable to tell whether they went to

Police Station at morning or at noon time or at evening. She does not remember exact vehicle by which they went to Police Station from their village.

PWÂ1 victim girl further stated that she does not remember whether many villagers were gathered in the police station or not. Accused No.2 was

not present in police station at that time. She has narrated the incident to her parents on the same day of its occurrence. She has stated to police the

name of accused No.2 at the time of filing report. She has narrated the role played by accused No.2 in the incident and what accused No.2 has done

with her. She has stated to police at the time of filing report that accused No.2 was standing near the computer room and accused No.2 bolted the

door of the computer room from outside, and then accused No.2 removed door belt of the computer room. She has stated before police at the time of

filing report that another girl student told her that accused No.1 called her in the school. She has stated before the police at the time of filing report

that, another victim girl was present in the school when she went to the school. Thus, the prosecution has brought on record various omissions and

improvements in the evidence of victim girl.

PWÂ1 victim girl further stated that she did not sustain any injury or bleeding injury marks at the time of incident. Thus, it is difficult to accept that

a school going girl, aged about 12 years when was sexually assaulted by a grown up man like accused No.1, aged about 43 years at the time of

incident, still she had not sustained any injuries to her private part.

PWÂ1 victim girl further admits that after the incident, she has attended the school regularly and she went to play with her girl friends in the

school premises. She further admits that after the incident accused Nos.1 and 2 were on duty in the school. She does not remember whether some

4Â5 teachers of her school were resident of her village or not. She does not remember whether Jaydas Koli and Dinkar Bhoir were the teachers in

her school or not. She does not remember whether Pramila Gade of Uran was present in Police Station or not and whether Pramila signed the report

or not.

Thus, defence has brought on record several contradictions, omissions and improvements in the evidence of victim girl. We find that the omissions

and contradictions in her evidence are on material aspects. The defence has brought on record that she did not tell police at the time of lodging report

that accused No.1 sexually assaulted her. The defence has brought on record that regarding the incident and the events soon thereafter, the victims

girl does not remember anything. Initially victim girl stated that accused No.1 took her in 7thâ€"A class room and in another breath she again said that

accused No.1 took her in 6thâ€"A class room. Thus, entire evidence of the PWÂ1 has been shattered in the cross examination. Therefore, we are of

the considered view that the evidence of victim girl is not at all reliable and does not inspire confidence and therefore the same deserves to be

discarded.

So far the alleged incident of sexual assault and snapping of obscene photographs of victim girl is concerned, different prosecution witnesses have

given different version and there is material variance in the evidence of prosecution witnesses exactly on which spots the said incidents took place. In

this respect, the evidence of PWÂ​2 (name is not disclosed) shows that she was studying in 7thâ€"A standard which was adjacent to office of accused

No.2. The computer room was also adjacent to her class room. Her class room 7thâ€" A was in between the office of accused No.2 and computer

room. There was a separate room for storing rice in her school. The evidence of PWÂ2 further shows that accused No.1 called victim girl, and when

victim girl went in the rice room, accused No.2 bolted the door of rice room from outside. The evidence of PWÂ2 further shows that, she called the

victim girl for going to the office of accused No.2 and victim girl went in the rice room and accused No.2 bolted room from outside. Her evidence

further shows that accused No.1 called victim girl in the rice room and when victim girl went in the rice room, accused No.2 bolted the rice room from

outside. Thus it is clear from the perusal of evidence of PWÂ2, a girl student who was studying in the same school at the relevant time, that both the

alleged incidents took place in rice room, whereas the victim girl alleged that the incidents took place in 7th â€" A class room and computer room.

Thus version of PWÂ2 does not corroborate to the version of PWÂ1. There is material contradiction about the place of incident in the version of

PWÂ​1 and PWÂ​2.

So far as the evidence of PWÂ3 (name is not disclosed) in this respect is concerned, her evidence shows that on the relevant day she was present

in the school Varanda. Victim girlÂY was playing along with her classmates near the school Varanda. Accused No.2 told another girl student (PWÂ‐

2) to call the victim girl in the computer room. Victim girl went in the computer room and accused No.2 pushed victim girl in the computer room and

bolted the computer room from outside. Her evidence further shows that she does not remember any incident took place in the rice room in the

school. Thus the evidence of PWÂ​3 shows that the alleged incident took place in the computer room of the school.

In respect of the alleged incident, the prosecution has brought on record the evidence of PWÂ6, minor girl student (name is not disclosed). The

evidence of PWÂ6 shows that she knows the victim girl Y who was studying in 5th standard. Her evidence further shows that accused No.1 has

snapped obscene photographs of the victim girl and the victim girl has filed report. But the evidence of PWÂ6 nowhere states where the alleged

incident exactly took place.

In respect of the alleged incident, the prosecution has brought on record the evidence of PWÂ11 (identity is concealed), who is the father of the

victim girl. His evidence shows that his daughter i.e. victim girl, narrated her incident of snapping the photographs of her body by accused No.1 on

mobile and according to the victim girl, the alleged incident took place in 6th â€" A class room.

Thus, it is clear from the perusal of the evidence of the prosecution witnessed that, they have stated different spot of the alleged incident. Thus, so

far as the alleged incident is concerned, the prosecution has failed to prove the exact spot where the alleged incident took place. Thus, it is doubtful

whether such incident had taken place or not.

Now, we will examine the evidence of Medical Officer PWÂ14 Dr. Jaya Shrinivasan who has examined the victim girl. Her evidence shows that

on

20 th January, 2013 the victim girl was referred to her hospital for medical examination. The age of victim girl was 14 years. The alleged history was

being sexually abused by school teacher accused No.1 in the school. The evidence of the medical officer (PWÂ14) further shows that she examined

the victim girl on 20th January, 2013. PWÂ14 has specifically stated that there was no external injury on any part of the body including private part of

the victim girl. The hymen of victim girl was intact, but admitting two fingers. Thus, the evidence of PWÂ14 shows that at the relevant time the age of

victim girl was 14 years. Thus, as observed earlier, if a girl of such tender age like victim girl is sexually assaulted by a grown up man like accused

No.1 Â Datta Jadhav, aged about 43 years at the relevant time, it is difficult to believe that the victim girl would not sustain any injuries on her private

part. Even the evidence of PWÂ14 shows that hymen of victim girl was intact. Thus, considering the medical evidence brought on record by the

prosecution, it is difficult to believe that alleged incident of sexual assault had really taken place.

Further, in the crossÂexamination medical officer (PWÂ14) has specifically admitted that according to her the case referred to her by police was

not of rape but sexual abuse. The evidence of PWÂ14 further shows that according to her opinion there was evidence of possible sexual abuse. Thus,

even if the evidence of this prosecution witness (PWÂ 14) is accepted as it is, it was not the case of sexual assault. This medical officer has opined

that there was evidence of possible sexual abuse. Thus, this medical officer (PWÂ14) has not definitely opined that it was the case of even sexual

abuse. Thus, the prosecution has failed to prove that victim girl was sexually assaulted.

Upon further perusal of the evidence of the prosecution witnesses i.e. girl students, PWÂ2, PWÂ3, PWÂ4 and PWÂ6 is perused, their evidence

shows that accused No.1 used to behave in indecent manner with the girl students. Their evidence further shows that accused No.1 while teaching in

their class room, used to taunt the girl students in filthy language, accused No.1 used to beat girl students on their buttock, he used to touch the chest

of the girl students. The evidence of these girl students further shows that they were sitting on the benches and accused No.1 used to tell them

whether they were taking air from the beneath. In this respect if the evidence of victim girl (PWÂ1) is perused, she has no where made allegations

against accused No.1 that he was behaving in indecent manner with the girl students while teaching in the class room. These other prosecution

witnesses have not filed any report alleging the indecent behaviour of accused No.1.

The prosecution has examined PWÂ5 Pramila Satish Gade, who is the panch to the spot panchnama (ExhibitÂ23) in respect of 7th â€" A class

room of the school. During the course cross examination, PWÂ5 Pramila admitted that being social worker on various occasions she used to visit

Police Station. She used to help Police for preparing panchanama. Her cross examination further shows that PI Patil was well acquainted with her

prior to panchanama being social worker and PI Patil requested her to act as panch. Thus, defence has brought on record that PWÂ5 always used to

help Police for preparing panchanama. Thus it appears that this panch is a gotÂup witness and therefore the evidence of this panch witness is not

useful to the prosecution case.

PWÂ7 Nitesh Balkrishna Ghase is the panch to the seizure panchanama (Exhibit â€" 28) of one piece of cloth of red colour from the computer

room of the school. However, PWÂ7 stated in the cross examination that he does not remember the room in which the piece of cloth was found.

Thus evidence of this witness is also not helpful to the prosecution case.

PWÂ8 Anil Khalchandra Patil is the panch to arrest panchanama (Exhibit â€" 32) regarding arrest of accused Jadhav and seizure panchanama

(Exhibit â€" 33) in respect of clothes of accused No.1, which he was wearing at the time of alleged incident. PWÂ8 has specifically admitted in his

cross examination that at the relevant time of preparing panchanama, he was working in a Canteen and was supplying tiffins to the Police officers at

the police station and he was acquainted with PI Patil since two and half years. Thus it appears that this witness is also gotÂ​up witness.

PWÂ9 Nahida Irfan Thakur is the panch to the seizure panchanama (Exhibitâ€"36) of wearing clothes of victim girl like slip of red colour and

nicker of brown colour, which clothes the victim girl was wearing at the time of incident as per the prosecution case. The evidence of PWÂ9 shows

that at the time of filing of report, she was present in the Police Station. Her evidence further shows that the parents of victim girl informed Police that

the clothes produced by them were of the victim girl. Her evidence further shows that she used to go to Police Station to help the persons in need

being social worker. PWÂ10 Kamalakar Ganya Patil is the panch witness to the spot panchanama (Exhibitâ€"38) regarding the computer room of the

school where the alleged incident took place.

Upon careful perusal of the evidence of these panch witnesses i.e. PWÂ5, PWÂ7, PWÂ8, PWÂ9 and PWÂ10, we are of the opinion that their

evidence is not useful to the prosecution case.

PWÂ11 (to conceal his identity, his name is not disclosed), is the father of the victim girl. His evidence shows that his daughter i.e. victim girl,

narrated her incident of snapping the photographs of her body by accused No.1 on mobile. PWÂ11 stated in the cross examination that he did not

remember the exact time when they went to Police Station. He further stated that he does not remember the exact date or period of narration of

incident by her daughter to him. He further stated that he did not inform to Police immediately when his daughter narrated the incident to him. He

further stated that he never went to the school of his daughter when she narrated him the incident. Thus the conduct of PWÂ11 does not appears to

be natural as his evidence shows that he did not inform Police immediately when his daughter narrated the incident to him. If really such uncommon

incident would have been happened with the daughter, natural conduct of the father would have been to go immediately first to the school of the

daughter to complain the incident and then to the Police Station and report the matter.

PWÂ14 Dr. Bhimrao Dyanabarao Kamble is the medical officer who has examined accused No.1. evidence of PWÂ14 shows that on

examination of accused No.1 he found no injury on the glance penis, no injury over the front of the chest of accused No.1. In his opinion, accused

No.1 was capable of doing sexual intercourse. It is pertinent to note that upon careful perusal of the evidence of victim girl, it is difficult to believe that

alleged incident of sexual assault took place and therefore the evidence of this medical officer is also not useful to the prosecution case.

PWÂ13 â€" Rani Laxman Puri is the lady police officer who has recorded the statements of students of Primary School, Mothi Jui. PWÂ16

Tanaji Dadasaheb Patil and PWÂ17 Sudam Ganu Avate were the Investigating Officer who have deposed about the manner in which they have

carried out the investigation in the crime.

We have carefully considered the entire evidence brought on record by the prosecution. As observed earlier, we are of the view that the evidence

of the victim girl is not reliable and the same does not inspire confidence of this Court. The prosecution has brought on record several contradictions,

omissions and improvements in her evidence showing that the same is not trustworthy. The evidence of other prosecution witnesses is not consistent

with each other and the same is also not reliable. The prosecution has failed to prove that obscene photographs were of the victim girl or that of the

prosecution witnesses who are minor girls. The prosecution failed to prove beyond reasonable doubt that victim girl was sexually assaulted at the

hands of accused No.1 and that in the said process accused No.2 abetted him. There is material variance in the core of the prosecution case as to

where exactly the alleged incident of sexual assault took place. Thus, the main incident of sexual assault, on which prosecution is based, is not at all

proved by the prosecution. Even the medical evidence does not support the prosecution case. As observed earlier, the evidence of PWÂ14 Dr. Jaya

who examined the victim girl â€" Y shows that, there was no external injury on any part of the body including private part of the victim girl and her

Hymen was intact. The evidence of this medical officer clearly shows that the case referred to her was not of rape. The evidence of medical officer

(PWÂ14) further shows that according to her opinion there was evidence of possible sexual abuse. Thus, the medical officer has not stated definitely

that it was even the case of sexual abuse and only opined that incident of sexual abuse may have happened. We are conscious of the fact that in the

present case there are allegations of sexual assault on a minor girl. However, in absence of cogent, trustworthy, reliable and sufficient evidence, we

are unable to subscribe the view taken by the trial Court. We have to remind ourself of the observations made by the Supreme Court in the case of

Sarwan Singh Rattan Singh V/s State of Punjab AIR 1957 SC 637(1), which are as under :Â​

“The result is that, if the approver's evidence is discarded as unworthy of credit and his own retracted confession is excluded from consideration as

not being voluntary of true whatever circumstantial evidence remains is obviously insufficient to bring home to Sarwan Singh the charge framed

against him. If that be the true position, we must hold that, the learned Judges of the High Court were in error in convicting Sarwan Singh of the

offence of murder.

It is no doubt a matter of regret that a foul coldÂblooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh

strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that,

considered as a whole the prosecution story may be true; but between `may be true' and `must be true' there is inevitably a long Cri.Apeal 935.14.doc

distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence.â€​

Thus upon reÂappreciation of entire evidence, we are of the considered opinion that, the evidence of the victim girlâ€"Y, medical officer (PWÂ‐

14) and other prosecution witnesses is not acceptable and cannot form basis for conviction. So also, the evidence on record do not establish that

actually the alleged incident of sexual assault took place. The evidence on record is not sufficient to prove the guilt of accused beyond reasonable

doubt. There is no clinching and credible evidence to convict the accused for the offences levelled against them. The reasons and findings recorded by

the trail court are found to be perverse and based upon improper appreciation of evidence on record and not sustainable in law. We are of the view

that prosecution has failed to prove the guilt against both the accused beyond reasonable doubt. Therefore, both the accused deserves to be given

benefit of doubt.

It would be necessary to mention here that there are another two Appeals which are also filed by the present Appellants â€" i.e. original accused

Nos.1 and 2, challenging their conviction and sentence passed by the trial Court, wherein crime was registered at the instance of another victim

girlâ€"X, alleging the same offences like present one. As ample evidence was brought on record by the prosecution in the said case including

supporting medical evidence, We have dismissed those Appeals and confirmed the conviction and sentence passed against the Appellants therein i.e.

accused No.1 Datta Jadhav and accused No.2 Vanita Patil, who are the Appellants in the present Appeals. But, in the present case the evidence is

very scanty and the Appellants deserve to be given benefit of doubt.

In the result, the Appeals filed by both the accusedÂAppellants deserve to be allowed and conviction of both the Appellants is liable to be set

aside. Consequently, the Appeal filed by the State for enhancement of the sentence, deserves to be dismissed. We, therefore, pass the following order

:

O R D E R

(I) Criminal Appeal No.935 of 2014 and Criminal Appeal No.921 of 2014 are hereby allowed.

(II) The Judgment and order dated 28th October, 2014, passed by the Additional Sessions Judge, RaigadÂAlibag in Sessions Case, thereby convicting

and sentencing the Appellant â€" accused No.1 â€" Datta Somnath Jadhav for the offence punishable under Sections 376(2)(b) of the Indian Penal

Code read with Section 5(c), 6 of Protection of Children from Sexual Offences Act, Section 292, 509 of the Indian Penal Code read with Section 14

of the Protection of Children from Sexual Offences Act read with Section 67ÂB of Information Technology Act, Section 342, 354 of the Indian Penal

Code, is quashed and set aside.

(III) The Judgment and order dated 28th October, 2014, passed by the Additional Sessions Judge, RaigadÂAlibag in Sessions Case, thereby convicting

and sentencing the Appellant â€" accused No.2 â€" Vanita Vasant Patil for the offence punishable under Sections 376(2)(b), 109 of the Indian Penal

Code read with Section 5(c), 6 and 17 of Protection of Children from Sexual Offences Act, Section 292, 509, 109 of the Indian Penal Code read with

Section 14 and 17 of the Protection of Children from Sexual Offences Act read with Section 67ÂB of Information Technology Act, Section 342 of the

Indian Penal Code, is quashed and set aside.

(IV) Both the Appellants i.e. Â Datta Somnath Jadhav and Vanita Vasant Patil, are acquitted of the offence under Section 376(2)(b), 354, 292, 509,

342, 109 of the IPC and under Section 5(c), 6, 14 and 17 of Protection of Children from Sexual Offences Act and under Section 67ÂB of Information

Technology Act. Fine amount, if deposited as per the impugned Judgment and order, be refunded to both the Appellants.

(IV) Both the Appellants are in jail, they be set at liberty forthwith, if not required in any other case.

(VI) Both the Appellants shall furnish Personal Bond of Rs.15,000/Â each and surety in the like amount each, under Section 437ÂA of the Code of

Criminal Procedure, before the concerned trial Court at RaigadÂ​Alibag.

(VII) Criminal Appeal No.292 of 2015 filed by the State for enhancement of sentence, stands dismissed.