Bombay High Court
Vicky Sambhaji Nikam vs State Of Maharashtra And Anr. on 18 December, 2025
2025:BHC-AS:56049
APEAL-1276-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1276 OF 2022
Mr. Vicky Sambhaji Nikam }
Age-31 years, Occ: Service }
R/at Room No.109, 1st Floor, Sayyed }
Apartment, Shanti Nagar, Kurla (W), }
Mumbai-400070 }
Presently lodged in Kolhapur Prison } .... Appellant
V/s.
Digitally signed
NILAM by NILAM
SANTOSH
1. State of Maharashtra }
SANTOSH KAMBLE
KAMBLE Date: 2025.12.18
17:29:26 +0530
At the Instance of the Sr. PI Kurla Police }
Station, Mumbai. }
}
2. X.Y.Z. }
Kurla police Station }
Cr.No.13/21 } .... Respondents
----
Mr. Tapan Thatte a/w Mr. Vivek Arote and Mr. Akshay Dingale,
for the Appellant.
Mr. A.S. Gawai, APP, for the Respondent No. 1.
Mr. Chaitanya Chavan a/w Mr. Neil Patel for Respondent No. 2.
Mr.Satish Thorat, PSI, Kurla Police Station, Mumbai - Present
----
CORAM : R.M. JOSHI, J.
RESERVED ON : 12th DECEMBER 2025
PRONOUNCED ON : 18th DECEMBER 2025
JUDGMENT :
. This Appeal takes exception to the judgment and N.S. Kamble page 1 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc order dated 2nd June 2022 passed in POCSO Special Case No.325 of 2021 whereby the Appellant/Accused is convicted for the offence punishable under Section 6 of the Protection of Children From Sexual Offences Act, 2012 ('POCSO Act' for short) and sentenced to suffer RI for 20 years with fine of Rs.25,000/- in-default Simple Imprisonment for six months. He has also been sentenced to suffer RI of one year with fine of Rs.1,000/- in-default simple imprisonment for 15 days for the offence punishable under Section 12 of the POSCO Act. Since, the Accused is convicted for the offences punishable under Section 6 and 12 of the POCSO Act, no punishment was imposed against him for the offence punishable under Section 376(A) and (B) and 354D of Indian Penal Code, 1858 ('IPC' for short) and Section 10 of the POCSO Act.
2. The facts appearing from the record indicate that, on 10th January 2021 at about 10.10 p.m. report came to be lodged by Informant with Kurla Police Station stating that on that day at about 9.30 p.m. when she along with her husband and relative was in the house, her daughter came running to the house, in N.S. Kamble page 2 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc threatened state. When she questioned her as to why she was crying, informants daughter told her that "AmmaI Apnao ibalDIMga mao rhnao vaalao ivakI AMkla nao maoro saaqa gaMdI hrkt kI ivakI AMkla nao maora hat pkDkr mauJao ]nakI poSaaba vaalaI jagah pr pkDnao ko ilae baaolaa AaOr mauJasao gaMdI gaMdI baat krnao lagaa AaOr mao ivakI AMkla ko hat kao JaTka dodI."
3. She informed about the same to her husband. When they came outside the house, they saw Accused going out. When her husband stopped him, he ran away from the spot. Thereafter, complaint came to be lodged at the instance of the mother of the victim against the Accused. On the basis of which offence is registered vide Crime-No. 13 of 2021.
4. During the course of the investigation the statement of the victim was recorded under Section 161 of the Cr.P.C. So also she had been referred for medical examination. Though general medical examination was permitted, informant refused her daughter to undergo the genital examination. Statement of the victim was also recorded before the Magistrate under Section 164 of Cr.P.C. Panchanama was drawn of the spot of the incident. Seized articles were sent sealed for Chemical Analysis. Statement of witnesses were recorded including statement of Medical officer N.S. Kamble page 3 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc who had clinically examined the victim. On conclusion of the examination charge-sheet came to be filed against the Accused.
5. Charge is framed against the Accused vide Exhibit
15. Accused denied the charges, hence was tried before the Trial court. In order to prove guilt of the Accused, prosecution examined following six witnesses.
Serial No. Witness Name Exhibit No.
PW - 1 Rajashree Vinayak Alkunte Exh. 22
Page no. 51-52
PW - 2 Mother of victim Exh. 23
Page no. 53-59
PW - 3 Victim Exh. 32
Page no. 80-89
PW - 4 Mr. Pramod @ Sachin Mahavir Upalkar Exh. 35
Page no. 91-93
PW - 5 Pankaj Ramdhan Pardeshi Exh. 39
Page no. 121-125
PW - 6 Gajanan Marutrao Deshmukh Exh. 48
Page no. 146-151
6. The learned Trial court found evidence led by the prosecution sufficient to bring home guilt of the Accused and therefore by impugned judgment and order convicted the Accused and sentenced him to suffer imprisonment as stated herein above.
N.S. Kamble page 4 of 25
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7. The learned counsel for the Appellant/Accused submits that there is evidence on record to indicate that the parties are in unimical terms. It is his submission that the testimony of the victim is not free from doubt and possibility of tutoring is not ruled out. It is his submission that the First Information Report which is lodged on the basis of information given by the victim to her mother wherein there is no allegation against the Accused with respect to penetrative sexual intercourse so also act of the oral intercourse. According to him this becomes vital in the context of the fact that the mother of the victim has refused genital examination of the victim. It is his submission that though excuse is sought to be given about victim being ill then, there is no evidence of Medical Officer to support the said claim of Informant. It is his further submission that this is not a case wherein the incident has occurred at isolated place, but the same is claimed to have occurred on the first floor of the building in the passage. He drew attention of the Court to the testimony of victim which according to him indicates that one independent witness Sajid was present, however as admitted by the N.S. Kamble page 5 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc Investigating Officer his statement is not recorded during the course of investigation. It is his submission that, adverse inference needs to be drawn against the prosecution firstly on the ground of not permitting the victim to undergo the medical examination and not recording statement of the witness who was present at the spot. He further drew attention of the Court to the admission of the PW-4 as well as informant indicating that there was installation of CC Tv cameras in the building, however, the Investigating Officer has not collected the said evidence. Argument is also made about the discrepancies in the statement of the victim as to the mobile phone on which she was shown objectionable contents by the Accused. It is argued that in case of sterling quality of evidence of the victim, corroboration need not be sought. However, according to him in the instant case the evidence of the victim as narrated to her mother and FIR coupled with the fact that the medical examination of the victim was refused, there is reason to believe that this is a case of false implication of the Accused in crime. To support his submission he placed reliance on following judgment:-
N.S. Kamble page 6 of 25
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1. Raju @ Balachandran & Ors. v. State of Tamil Nadu AIR 2013 SC 983
2. Nirmal Premkumar & Anr. v. State Rep. by Inspector of Police 2024 (SC) 221
8. The learned counsel for Respondent No.2 and learned APP supported the impugned judgment and order. It is contention of learned counsel for Respondent No.2/Victim that the FIR is not encyclopedia and merely because certain facts not narrated therein, that would not be sufficient discarded testimony of victim. To support his submission, he placed reliance on judgment in case of State of Uttar Pradesh V/s. Naresh & Ors. (2011) 4 SCC 324. On the point of the Medical Examination, it is his submission that the medical examination was conducted, however, the genital examination was not permitted by the mother of the victim. It is his submission that having regard to the evidence of victim, the genital examination of the victim was not at all essential. To support this submission he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Aslam V/s. State of Uttar Pradesh (2014) 13 SCC 350 . On the point of phone being used in the crime to show pornographic substance to N.S. Kamble page 7 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc the victim, reference is made to the evidence of victim as well as to the statement of Accused under Section 313 of Cr.P.C. It is submitted that Article 9 is the mobile phone which belongs to the Accused and with which the victim says that the objectionable substance was shown therefrom.
9. Insofar as the absence of collecting evidence of C.C. TV it is argued that the Informant has accepted about the existence of the CC TV at the entrance of the building and not on the first floor. It is thus his submission that merely on the basis of such statement it cannot be assumed that there was CC-TV footage which was not collected by the Investigating Officer. In this regard reference is made to the evidence of Investigating Officer who denied installation of CC TV at the spot of the incident. According to him though in statement under Section 313 of Cr.P.C. the Accused has sought to raise plea of alibi, there is absolutely no evidence to support the same. It is his contention that since the victim is 6 and ½ years old and she narrated the incident before the Court, there is no reason to discard her testimony and the alleged animosity between the parties becomes N.S. Kamble page 8 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc irrelevant. Directing to the judgment in case of State of Punjab V/s. Gurmit Singh (1996) 2 SCC 384, the learned counsel argued that there is no possibility that the father of the girl of such young age would falsely implicate the Accused through her. On the point of non-examination of eye witness it is contented that the testimony of the victim would be sufficient to prove the guilt of the Accused without seeking any corroboration as such non- examination of the witness is not fatal to the case of the prosecution. To support this submission he placed reliance of judgment of the Hon'ble Supreme Court in case of Rameshwar V/s. State of Rajasthan (1952) SC 54 and Appabhai & Anr. v. State of Gujarat (1988) SC 696.
10. The learned APP apart from supporting submissions of counsel for victim, submitted that, the Section 29 provides for presumption of the offence against the Accused and here in this case he has failed to rebut the same. It is submitted that the testimony of victim is consistent with her previous statement so also the history narrated to the Medical Officer. He also seeks to take aid of the judgment of the Supreme Court in case of Gurmit N.S. Kamble page 9 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc Singh (Supra).
11. At the outset, this Court finds it appropriate to refer the judgment of the Hon'ble Supreme Court in case of Nirmal Parmar (Supra) wherein the law of appreciation of evidence in respect of sexual offence has been dealt with and summarized as under:-
11. Law is well settled that generally speaking, oral testimony may be classified into three categories, viz.: (i) wholly reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the Court in arriving at its conclusion(s). However, in the third category of cases, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
12. In Ganesan v. State (2020) 10 SCC 573, this Court held that the sole testimony of the victim, if found reliable and trustworthy, requires no corroboration and may be sufficient to invite conviction of the accused.
13. This Court was tasked to adjudicate a matter involving gang rape allegations under section 376(2)(g), I.P.C in Rai Sandeep v. State (NCT of Delhi) (2012) 8 SCC 21. The Court found totally conflicting versions of the prosecutrix, from what was stated in the complaint and what was deposed before Court, resulting in material inconsistencies.
Reversing the conviction and holding that the prosecutrix cannot be held to be a 'sterling witness', the Court opined as under:
"22. In our considered opinion, the 'sterling witness' should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any N.S. Kamble page 10 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
(underlining ours, for emphasis) N.S. Kamble page 11 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc
14. In Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130, this Court laid down that although the victim's solitary evidence in matters related to sexual offences is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufficient due to identified flaws and lacunae. It was held thus:
"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.
32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant."
15. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a "sterling witness" without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistences excepted), from the initial statement to the oral testimony, without creating any N.S. Kamble page 12 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc doubt qua the prosecution's case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.
Keeping in mind the observations of the Hon'ble Supreme Court, the evidence on record would be appreciated.
12. In the beginning it needs to be recorded that age of the victim is 6 and ½ years. Her date of birth is 11 th June 2014 which has been proved by producing Birth Certificate on record. In fact the defence also has not made dispute with regard to the fact that the victim is minor and child within the meaning of Section 2(d) of POCSO Act.
13. It is case of the Informant that on the fateful day at around 9.30 p.m. her daughter (victim) came home shivering and in frightened state. When Informant questioned about the reason therefor, she told her that "Vicky uncle (Accused) has done dirty act with her and accused is put his penis in her mouth as well as inserted it in her vagina". The Informant claims that immediately thereafter she went to the Police Station and lodged FIR at Exhibit-24. She admits contents of the FIR to be correct.
N.S. Kamble page 13 of 25
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The First Information Report however, records the narration given by victim to her as follows :-
"AmmaI Apnao ibalDIMga mao rhnao vaalao ivakI AMkla nao maoro saaqa gaMdI hrkt kI ivakI AMkla nao maora hat pkDkr mauJao ]nakI poSaaba vaalaI jagah pr pkDnao ko ilae baaolaa AaOr mauJasao gaMdI gaMdI baat krnao lagaa AaOr mao ivakI AMkla ko hat kao JaTka dodI."
14. The substantive evidence of Informant before the Trial Court gives different version of the incident as compared to the FIR lodged by her to the police. It is sought to be argued on behalf of the counsel of the victim that considering the mental stress, some of the contents of the incident are not included in the report and to support this submission he placed reliance on judgment of the Hon'ble Supreme Court in case of State of Uttar Pradesh V/s. Naresh & Ors. (2011) 4 SCC 324 wherein it is held that the FIR is not encyclopedia and non-inclusion of certain facts does not lead to the discarding of case of prosecution in a trial.
15. There cannot be any dispute with regard to the said prepositions canvassed by the counsel for the victim. However, at the same time, it needs to be assured that the variance in the FIR and testimony before the Trial Court is not on N.S. Kamble page 14 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc substantial/material aspects. Any minor/insignificant variation can be ignored since it does not materially affects the overall case sought to be made out by prosecution. This rule however, wont have application in case of exclusion of material facts, having bearing on the case. Perusal of the statement of Informant before the Trial Court and in FIR give completely different version of the occurrence of the incident. Most importantly FIR never explains the reason for which such difference has occurred. It is not open for the counsel for the victim through argument to substantiate the said reason unless it was so explained by the Informant before the Trial Court.
16. Moreover, it is necessary to see as to whether the said variances is insignificant or has no material bearing on the outcome of the case. In the FIR Informant never discloses to the Police about alleged act of the Accused of putting his penis in the mouth of the victim. What she had claimed is that Accused caught hold of the hand of the victim and asked her to hold his penis. She however states in the substantive evidence before the Court that it is the case of insertion of the penis into the vagina of N.S. Kamble page 15 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc victim. It is accepted fact that she did not permit genital examination of the victim. Non-examination of the victim in order to ascertain any such incident of insertion of the penis into the vagina has led to, their being no medical evidence to support the case of the Informant in this regard. It is sought to be argued on behalf of the victim that in case of putting penis into the mouth of the victim would not reflect anything from the medical evidence and therefore non-examination of the genital of the victim is not fatal to the case of the prosecution. If this fact is admitted that the prosecution is seeking conviction of the Accused solely on the basis of the allegation that the Accused has put his penis into the mouth of the victim, absence of the said statement in the FIR does not become insignificant or immaterial fact which could be permitted to be improvised during the course of the trial. With utmost respect the view expressed by the Hon'ble Supreme Court in case of Naresh (Supra) the said judgment does not apply to the present case for the reason that the change in the version of the incident is material and non mentioning of the said alleged act done by the Accused to the N.S. Kamble page 16 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc victim would become fatal to the case of the prosecution.
17. Testimony of victim is said to be consistent with the history given to the Medical officer. It is argued that victim being aged about 6 and ½ years would have no reason to make false statement before the Court to implicate the Accused. At the same time, considering the age of the victim, the Court has to be on the guard in order to assure that, the possibility of the tutoring is absent in the case. Victim in her substantive evidence before the Trial Court states about the incident as under:-
"Vicky uncle called me near the lift. He had shown me dirty photos on mobile. He asked me to press his organ of urination (meaning 'penis') he touched his penis near my organ of urination. The he put his penis in my mouth."
18. This statement of her however is contrary to the statement of the Informant before the Court as well as in the FIR, pertinently informant claims in her examination-in-chief itself that the history was given to the Medical officer by her. Thus there is no substance to say that the statement of the victim before the Court is consistent with the history given to the Medical N.S. Kamble page 17 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc Officer.
19. From the evidence on record the discrepancies which have occurred in respect of the incident in question can be highlighted as under:
Sr.No. Statement Statement before Court Statement to Medical in FIR Officer 1 vEeh vius By Victim: Victim came home fcfYMax es crying at around 9 jgus okys She was playing in the pm. Mother asked fodh vady passage of her home. why she was crying, us esjs lkFk Vicky Uncle called her then she said that xanh gjdr to the lift and showed accused took her to dh] fodh side of lift to show vadyus nao her dirty pictures and her some videos.
maora hat videos on the mobile.
pkDkr He undressed his mauJao ]nakI He asked her to press pant and asked her to poSaaba vaalaI his organ of urination touch his penis, he jagah pr i.e. his penis and then kept asking even pkDnao ko touched it to her when she refused. He ilae baaolaa vagina. He then put his AaOr mauJasao also touched the gaMdI gaMdI penis in her mouth. same to her vagina baat krnao and put it in her After the incident, she lagaa AaOr mao mouth.
ivakI AMkla came home and told ko hat kao her mother, who told She vomited and ran JaTka the same to her father. away. At home, she dodI." They went to the police explained the station to file the case. incident to her mother after repeated questions. After which, they went to file a case.
N.S. Kamble page 18 of 25
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2 By Informant:
Victim told Informant
that Vicky uncle (the
accused) did a dirty act
with her, that he put his
organ of urination i.e.
the penis in her mouth
as well as her vagina.
20. The afore-stated discrepancies occurred in the evidence of the prosecution are not minor but substantial/material in nature and which indicate that the evidence of the victim is not of sterling quality in order to base connection thereupon without seeking corroboration.
21. There is evidence on record to indicate that the family of the victim and Accused where in inimical terms. In this regard reference can be made to the testimony of the PW-4 Pramod who is neighbor of victim and Accused. In no uncertain terms admits about there being disputes and quarrel between two families. He has also stated about altercations having taken place between the members of the family in August 2020 when there was a satanaryan pooja organized at the house of the Accused.
N.S. Kamble page 19 of 25
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22. There is no further cross-examination or re- examination of this witness in order to dispute the facts which she admits in the cross-examination about disputes/quarrels between the two families. On one side counsel for the Appellant/Accused claims that in view of the said dispute, possibility of false implication was ruled out. Whereas counsel for the victim claims that the victim is not gave enough to lead to the false implication.
23. No doubt the previous enimity is a double edge weapon which may prompt a person to commit crime so also make another to falsely implicate some one therein. However, as a matter of caution, when there are disputed between the parties, the Court has to be on guard while appreciating the evidence on record and the testimonies of the witnesses are required to be taken with pinch of salt.
24. Though there is less possibility of the parents of a small girl involving her in the case like one in hand, to falsely implicate Accused, however the same possibility is not ruled out completely. The material discrepancies in the testimonies of victim and Informant compared to their prior statements become N.S. Kamble page 20 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc more relevant and important in view of the previous dispute between the parties. In the light of these facts, the act of the mother of the victim having refused the genital examination of the victim cannot be ignored and brushed aside lightly. It was the case of the Informant in her FIR that there was insertion of the penis by the Accused into the vagina of victim, there was no reason or justification for not permitting Medical Officer to examine the genital. The excuse sought to be given before the Trial Court about the illness of the victim does not find place in the report of of the Medical Officer nor Medical Officer states so in substantive evidence. Non-examination of the victim on the material aspect leads to drawing of adverse inference of the absence of causing of the incident of the Accused inserting the penis into the vagina of the victim and therefore she being not allowed to be examined, which would have exposed the said allegations to be false.
25. Though this Court finds some substance in the contention of counsel for the victim that there is no cogent evidence on record with regard to the availability of the CC TV N.S. Kamble page 21 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:25 ::: APEAL-1276-2022.doc footage at the place of the incident. However, the victim admits that, at the time of occurrence of the incident one Sajid was present at the spot she claims that she was playing on mobile phone of her mother whereas Sajid was also playing on mobile. It is not the law that for the purpose of proving a particular fact a specific number of witnesses are required. However, when the independent witness is available and is not examined before the Court nor his statement is recorded, the burden is upon the prosecution to explain the same. Here in this case the Investigating Officer admits to have not recorded statement of Sajid, without affording any explanation therefor.
26. Recording of the statement of Sajid was absolutely necessary which would have at least confirmed the fact that the Accused was present at the spot along with victim. Here in this case the prosecution seeks conviction of the Accused on the basis of testimony of interested witnesses whose evidence does not inspire confidence and hence non-examination of the independent witness who was present at the spot of the incident give serious blow to the case of the prosecution. This Court finds N.S. Kamble page 22 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:26 ::: APEAL-1276-2022.doc no hesitation draw adverse inference that, the said witness was not examined as his statement would have led to the innocence of the Accused.
27. Insofar as the allegations with regard to the victim being shown pornographic video and photograph, testimony of the victim indicates that the mobile phone on which she was playing was taken away by the Accused and from the said mobile phone videos and photos were shown to her. Whereas she further states that those videos were being shown from the mobile of the Accused. The victim identifies the videos shown to her however the said testimony of the victim does not inspire confidence for the reason that at one place she claims that the videos were shown from the mobile phone which she was having i.e. her mother's mobile phone whereas later on she she claims that she was shown videos from the mobile phone of the Accused. Most importantly such act of the Accused of showing obscene videos and photos finds no place in the FIR.
28. Considering the dispute between the parties and having regard to the nature and quality of the evidence led before N.S. Kamble page 23 of 25 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 21:34:26 ::: APEAL-1276-2022.doc the Trial Court, it cannot be said that the prosecution has discharged his burden upon proving the guilt of the Accused beyond reasonable doubt. Needless to say that, even in the trial under the provisions of POCSO, the prosecutions burden of proving the guilt of the Accused beyond doubt does not stand dispensed with. As far as rebuttance of the presumption is concerned, the Accused can rebut the same by leading evidence even by cross-examining the witness of the prosecution. Herein this case the defense was successful in rebuttance thereof by bringing material admissions from the witnesses during cross- examination.
29. Having regard to the above discussion, it cannot be held that the guilt of the Accused has been proved beyond doubt and hence the judgment and order of conviction of the Accused is not sustainable in law. Hence, order.
ORDER
(i) Appeal stands allowed.
(ii) The Appellant/Accused stands acquitted of all
charges.
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APEAL-1276-2022.doc
(iii) The amount paid, if any, be refunded to the Accused.
(iv) The Appellant be released forthwith from the jail, if not, required in any other crime.
(v) Registry to convey this order to the jail authorities for its implementation.
(vi) All pending Applications are disposed of.
(R.M. JOSHI, J.)
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