Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 516 OF 2016
(Annexure – A-1- Sr.381)
Mohd. Zakir Habib Khan
Age : 45 years, Room No.101, Bldg.No.4, Lady Ratan Bldg., D.M. Road, Mumbai 400 018.
(at present accused is in Nashik Central
Prison) .. Appellant
(at the instance of Cufe Parade Police
Station in C.R.No.34/13) .. Respondent
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Mr.Aniket Vagal, for the Appellant.
Dr. F.R. Shaikh, APP for the Respondent – State.
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JUDGMENT
2. The prosecution case in brief is that the victim was subjected to sexual abuse by her father - the appellant - original accused since she was six years of age. This abuse continued till she was 14 years of age. Even thereafter the appellant tried to sexually abuse the victim but she resisted. The victim started residing separately in a rented room since the year 2013. Even in this room the father tried to sexually abuse the victim but the victim resisted and did not allow her father to have his way. She informed about the sexual advances made by her father on 13/2/2013 to Ruksar Ovez Batatewala (PW-3). She then narrated the entire ordeal faced by her since childhood to PW-3. The complaint came to be fled on 14/2/2013. The statement of the victim was recorded frstly on 14/2/2013 and then on 20/2/2013 at Exhibit 25 by SEO Smt. Tara Soppian (PW-8). She was medically examined by Dr. Baban Shripati Shinde (PW-5) on 14/2/2013. Shekhar Prabhakar Tawde (PW-7), IO carried out the investigation and recorded the statements of the witnesses. Upon completion of investigation, PW-7 then fled the chargesheet before the Special Court.
3. The charge was framed by the Special Court under Section 354, 376d of the IPC and Section 6d of the POCSO Act at Exhibit 2 on 9/7/2013. The appellant pleaded not guilty and claimed to be tried. The prosecution examined eight witnesses before the Special Court. The victim is examined as PW-1. The defence of the appellant / accused is of total denial. In the statement made under Section 313 of the Code of Criminal Procedure (‘Cr.P.C.’ for short) the appellant took up a defence of false implication at the instance of PW-3. According to the appellant, he was falsely implicated by PW-3 as he had an objection to victim marrying PW-3's brother Rahul.
4. The case of the victim (PW-1) is that she was sexually abused by her father - the appellant. She was born on 26d/6d/1995. Her parents divorced sometime in the year 2000. Her father - the appellant remarried in 2001. Thereupon, the appellant, victim's step-mother, her elder step-brother, younger stepbrother, the victim started residing in one room. At the relevant time, the victim was six years of age. The victim's real mother started residing in her native village after divorce. After appellant’s remarriage in 2001, he started making sexual advances towards her. It is the case of the victim that her father the appellant from time to time had forcible sexual intercourse with her. The victim says that she was sexually abused since she was six years old till she was 14 years of age. In the year 2006d, when her step-mother gave birth to twins, the family shifted to a bigger room. As she was afraid of her father, she started sleeping in the kitchen. The victim's father - the appellant continued to misbehave with her. When the victim reached the age of menstruation, her step-mother objected to the act of the appellant misbehaving with the victim. In 2013, the victim started residing separately in a room rented by her father. Even in the said room the appellant tried to misbehave with her, but the victim resisted.
5. Dharmpal Motilal Gupta ( PW-2) is the owner of the room in which the victim started residing separately. PW-2 says that the room on the ground foor and upper foor are owned by him. PW-2 was told that the victim is the daughter of appellant’s brother-in-law. They started residing in the room. PW-2 deposes that quarrels were taking place intermittently between the victim and the appellant. However, in cross-examination PW-2 admitted that in his statement before the police he had not personally witnessed any quarrel between the appellant and the victim. 6d. Ruksar Ovez Batatewala (PW-3) is a tenant in respect of the room on the ground foor. PW-3 deposed that the victim was staying on the upper foor with her father. PW-3 further says that the appellant was not always staying with her. PW-3 deposed that the appellant came during day time for lunch and he stayed at night occasionally. PW-3 says that after fnishing dinner on 14/2/2013, she along with her husband, the victim and her father had ice-cream on Marine Drive. PW-3 received a call late in the night from PW-1 victim that her father misbehaved with her. The victim was weeping. The victim thereafter narrated to PW-3 the ordeal which she had to sufer since she was 4 to 5 years of age.
7. PW-1 victim and PW-3 thereafter proceeded to Cufe Parade Police Station to lodge the complaint. The First Information Report (Exhibit 8) ('FIR' for short) was registered by Gaurishankar Shravan Pabale (PW-6d), PSI, on 14/2/2013, at around 2.30 a.m. A crime was registered being Crime No. 34 of 2013. The investigation was taken over by PW-7 - IO Shri Shekhar Prabhakar Tawade. The statement of the victim was recorded by the Special Executive Ofcer ('SEO' for short) Smt. Tara Soppian (PW-8). It is in the evidence of PW-8 that she was called to the Police Station on 15/2/2013 whereupon she recorded the statement of the victim. PW-8 admits that the date on top of the statement (Exhibit 25) is 20/2/2013.
8. PW-7 IO proceeded with the investigation and recorded the statements of the various witnesses. The spot panchanama of the room where the victim was residing on the date of lodging of the FIR was recorded on 15/2/2013. PW-4 Ismail Chand Shaikh is the pancha witness of the spot panchanama. Nothing incriminating was found at the spot.
9. The victim PW-1 was medically examined by PW-5 Dr. Baban Shripati Shinde who deposed that there were no injuries on her private part or breasts. PW-5 deposed that secondary sex characters, breast, axillary hair and pubic hair were of sub-adult type. PW-5 carried out ossifcation test and opined that the age of the victim is 17 to 18 years. PW-5 deposed that the fndings of his examination were suggestive of sexual intercourse. In cross examination he admitted that mental condition of the victim was quite sound. He admitted that in the certifcate (Exhibit 19) he has not opined that the victim was subjected to sexual intercourse. He further admitted that the purpose of sending the victim for medical examination is to ascertain whether the victim was subjected to sexual intercourse. He further says that it is not possible in this case that hymen can be torn for various reasons other than sexual intercourse. He admitted that only on the basis of fndings that hymen was torn he opined that the girl was subjected to sexual intercourse. He further admits that the tears in this case were old healed. He denied the suggestion that there is always variation of two years on either side in the age which is given in their opinion. PW-5 says that he follows Modi's Jurisprudence. He says as not true that as per Modi's Jurisprudence there is a margin of error of two years on either side in the opinion of age given by them. PW-5 says that according to him, the margin is of six months on either side after considering patient's general condition, secondary sex character, dental status and ossifcation test. It is thus the evidence of PW-5 that in his opinion the victim is 17 to 18 years of age in the light of the ossifcation test.
10. The FIR is lodged on 14/2/2013 in respect of an incident which took place on 13/2/2013. PW-1 the victim has narrated about the sexual abuse she was subjected to since the year
2002. PW-1 the victim in her evidence has stated that her father divorced her real mother in 2000. After her father's remarriage in the year 2001 he started making sexual advances towards her. She then mentions about the sexual intercourse she was subjected to by the appellant from the time she was 6d to 7 years old till she became 14 years. The victim states that she has informed about this to her parental aunt Habibunnisa. Habibunnisa is examined as defence witness i.e. DW-1. She has denied the victim having told her about the appellant sexually abusing the victim. The victim then says that when she was 14 years of age she was sleeping in the same room but her stepmother did not say anything to her father even after she saw the appellant touching the victim. The victim says that her stepmother started objecting and quarreling with the victim's father after she started menstruating. The victim says that she protested the acts of her father after she became 14 years of age. She then says that in the year 2006d her step-mother gave birth to twins whereafter they started residing in a bigger room. It is in her evidence that in this new room because of fear of her father she started sleeping in the kitchen. Her father attempted to touch her breasts while she was fast asleep. On her waking up her father used to leave the room.
11. A conviction can be based on the sole testimony of the victim if the version of the prosecutrix is found to be truthful, trustworthy and inspiring confdence. Let us consider if the evidence of PW-1 is truthful and inspires confdence. It is alleged that the frst act of sexual intercourse was sometime after 2001 when the victim was 6d to 7 years of age. She deposed that this went on regularly till she was 14 years of age. It is in evidence that the victim was residing along with her father, step-mother and two step-brothers in one room admeasuring 10 ft. x 10 ft. Then according to the victim she was abused in this room. She deposed that her step-mother did not say anything to the father even after she saw the father touching her. She has deposed that her step-mother started objecting and quarreling with her father on this issue after she started menstruating. We fnd it very difcult to believe the victim’s version. The victim says that since 2001 when she was 6d to 7 years old, she was subjected to sexual intercourse daily. We fnd it very hard to believe that her stepmother who was aware of this abuse according to PW-1, does not object to the abuse till the victim turns 14 years of age, would suddenly protest and quarrel with the appellant thereafter. Even her paternal grandmother was residing with them.
12. It is in evidence of PW-1 that her step-mother gave birth to twins in the year 2006d. Since 2006d they started residing in a bigger room in Worli having one room and a kitchen. The victim has deposed that she was sleeping in the kitchen because of fear of her father. It is in her evidence that he made attempt to touch her breasts when she was asleep but on her waking up he would leave the room. From her testimony it is clear that at least since 2006d it is not her case that she was subjected to sexual intercourse. The discrepancies in her evidence are too many to be ignored. It is difcult to believe the version of the victim that she was subjected to sexual abuse on a daily basis in a room admeasuring 10 ft. x 10ft. It also in occupation of as many as eight family members. In cross examination it is admitted by the victim that even her paternal grand-mother was residing with them. It is in her evidence that she did not inform about this incident to her paternal grand-mother. She admitted that all of them used to sleep in the same room.
13. PW-1 says that she became friends with one Kamruddin one and the half years prior to 30/7/2013 (the date of her deposition). She admitted that there were repeated quarrels between her and her step-mother on account of domestic work. She admitted that on one occasion she ran away from home on account of dispute with her step- mother. She admitted that she has written a letter to her step-mother which is at Exhibit 10. In the said letter, she wrote that she is leaving the house as she does not want to become a liability for her parents. She apologised to her step-mother for all the troubles she gave to her step-mother.
14. The victim admitted that whenever she used to go out and return home with money, her step-mother used to ask her from where she got the money and who gave her the money. On this issue there were disputes between them. She admits that she never told her step-mother who was giving her money. She denied the suggestion that her step-mother discontinued her school for this reason. She further admitted that they resided in Buddha Nagar, Worli for sometime. She denied the suggestion that in the absence of her step-mother she used to meet one boy named Kishan Lobo in his house. She further denied the suggestion that her step-mother followed her to his house and on this issue there were quarrels between them. She admits that she knew Kishan Lobo. She says that he was younger to her. She denied the suggestion that she tried to convince her step-mother to arrange marriage with him but her mother was not ready as the boy was a Christian. She denied the suggestion that because of this her family was defamed in Buddha Nagar and therefore they had to shift their residence to Gandhi Nagar, Worli. She, however, admitted that they shifted residence from Buddha Nagar and changed residence to Gandhi Nagar.
15. It is in her evidence that after she left the house she started residing in Ganesh Murthy Nagar i.e. the place where the incident dated 13/2/2013 took place. She admitted that she has one friend by name Pinky @ Ruksar Ovez Batatewal - PW-3, who was residing on the ground foor. She denied that Pinky's brother Rahul liked her or that she likes Rahul. She says that the name of Pinky's brother is Rahul. She says that his age is 17 years and that both of them are of the same age. At this stage, it would be material to state that Pinky - PW-3 in her evidence has stated that PW-1 victim does not know that she has a brother named Rahul. PW-3 denied the suggestion that the victim's father did not approve of Rahul as he is a Hindu. PW-3 denied the suggestion that PW-3's brother Rahul wanted marry to the victim. She denied the suggestion that the appellant did not approve PW-3's friendship with the victim as he was aware of PW-3’s background. PW-3 denied the suggestion that the appellant slapped her brother Rahul on 13/2/2013. She says that victim's father was not even knowing Rahul. The evidence on record would show that though the victim (PW-1) knows Rahul well, PW-
3 Ruksar alias Pinky though a close friend of PW-1, tried to project that the victim does not know Rahul. This discrepancy will have a bearing on the defence of the appellant. 16d. Furthermore, the victim says that she had told PW-3 about the sexual harassment sufered by her on many occasions. Suprisingly, PW-3 in her deposition says that it is only after the incident of 13/2/2013 that the victim disclosed to her about the sexual harassment by her father for the frst time. Apart from this even so far as the incident of 13/2/2013 is concerned, the victim’s version is that her father made a demand of sexual intercourse which she refused whereupon he got angry and touched her breast. The victim further says that when she was crying and about to shout, her father went out. The victim says that thereafter she called up PW-3 Ruksar and told her about the incident. PW-3 Ruksar in her evidence, however, says that the victim told her that on 13/2/2013 her father did a flthy act and forcibly committed sex on her. She further says that the victim's clothes were in torn condition and she was in a bad state. Thereafter, she was taken to Cufe Parade Police Station. That the appellant had forcibly committed sex on the victim or that her clothes were in torn condition on 13/2/2013, has not been stated by the victim. The victim only says that there was a demand of sexual intercourse which she refused.
17. It would be material to consider that PW-3-Ruksar admitted that two years back she had attended the Sessions Court in another case of Cufe Parade Police Station. She admitted that she was the complainant in respect of a criminal case fled against her husband, mother-in-law and father-in-law. PW-3 denied that she had fled the complaint against her husband for rape and for committing unnatural sexual intercourse. She admitted that she married her earlier husband Siddharth Haldar in 2008. PW-3 says that she was not aware whether her husband was acquitted in the case under Section 376d, 377 of the IPC. On record is the judgment dated 8/7/2011 in respect of the complaint fled by PW-3 against her earlier husband and in-laws. From the said judgment it is apparent that PW-3 had fled the complaint against her earlier husband alleging ill-treatment and of having unnatural intercourse with her. PW-3 was examined in the said case as a witness. The said case resulted in an acquittal.
18. The testimony of PW-3 does not inspire any confdence and is unreliable. Not only does it not inspire confdence but the manner in which PW-3 has tried to depose and narrate serious allegations against the appellant which was not even the victim's version is indicative of the desperation on the part of PW-3 to somehow implicate the appellant. The defence case that as appellant slapped Rahul, the brother of PW-3- Ruksar, as he did not like the victim’s association with Rahul appears probable. For this reason, the possibility of false implication at the instance of PW-3 cannot be ruled out.
19. We fnd that PW-1 has admitted that the appellant was giving her money from time to time for meeting her expenses. PW-1 says that her stitching class was discontinued, however, denied the suggestion that the same was discontinued as the teacher used to tell her mother that her conduct was not good and under the pretext of coming to the class she roamed outside. She admitted that she has taken photograph with Kamruddin at Haji Ali. She further admitted that the door of the room was closed when she was sitting inside the house with Kamruddin. The victim volunteered to state that her brother was with her. The victim admitted that her step-mother used to tell that she should not allow any outsider in the house in her absence. She further deposed that the Bihari boy acquainted with her is Kamruddin. She denied the suggestion that Kamruddin was beaten by the public in the building No.4 but says that the one who was beaten was a diferent boy. She then says that she does not know the reason why the boy was beaten but says that he was always staring at her. She denied the suggestion that the appellant did not like the boy looking at her and therefore, the boy was beaten up. She admitted that her father had snatched the mobile of that boy and threatened to beat him if he is seen again in that locality. She denied the suggestion that she planned to run away with that boy and to that end had packed her clothes also.
20. On a careful scrutiny of the testimony of PW-1, in our opinion, the version of the victim does not inspire confdence. In respect of the alleged incident which took place for the frst time in 2001, the FIR is fled on 14/2/2013. No doubt, the delay in lodging the FIR is not always fatal when an allegation of such nature is made. If the version of a victim appears truthful and reliable then even her sole testimony is sufcient to sustain a conviction and needs no corroboration. The circumstances in the present case, however, lead us to infer that the version of the victim does not appear to be truthful.
21. The victim has admitted to the frequent quarrels taking place between her and her step-mother. There are letters on record which the victim admitted to have been written by her indicating that she has left her parental home on more than one occasion as she was not getting well along with her step-mother. It is in victim’s evidence that the appellant as well as her stepmother objected to the victim meeting her male friends. The victim though denied having an afair with them but has admitted to knowing them. She has also admitted that the appellant had beaten up a boy who used to stare at the victim.
22. It is in evidence that all along the appellant was providing money to the victim to meet her expenses. The victim deposed that her step-mother did not allow her to go out and she did not allow her to speak with any outsider and that she was detained in the house only. This version of the victim is belied by the evidence on record. Not only the victim was meeting her friends, attending classes, but even her father permitted her to stay in a rented room separately. Apart from the victim not disclosing about the incident to any of the family members residing in the room with her, she has also not indicated anything about the misdeeds of her father in the letters at Exhibit 10 and Exhibit 11 written by her. The evidence on record indicates that the victim was not getting along well with her step mother and not at all happy with her. She started living separately in a rented room. Apart from the victim quarreling with her step-mother, the evidence on record indicates that the step-mother was speaking ill of the victim's real mother.
23. The victim's parents divorced when she was 6d years old. It is her misfortune to have been deprived of the love and afection of her real mother since then. From the tender age of 6d years, the victim resided with her father and step-mother. It is in the evidence of victim that she was ill-treated by her stepmother. The factum of the appellant divorcing the real mother of the victim has not been taken kindly by the victim as the evidence on record would go to show. The victim all along resided with her father and step-mother till she started staying in a rented room since January 2013. Two attempts were made by her to run away from home. The contents of the letters admittedly written by her reveal the impression carried by the victim that her step-mother did not like the victim's real mother and even has been saying unkind things about her real mother. The possibility of victim getting annoyed with the appellant for interfering in her personal matters cannot be ruled out. The defence that a false complaint is fled against the appellant due to these happenings and at the instance of PW-3 appears to be probable. In the fact circumstances of the present case, it would be highly unsafe to sustain a conviction on the basis of a complaint made by the victim after such a long delay. The evidence of PW-1 appears to be unreliable and does not inspire confdence.
24. The Special Court believed the version of the victim. We fnd the appreciation of the evidence by the Special Court as erroneous. Even otherwise the conviction of the appellant under Section 6d of the POCSO Act is unsustainable. The appellant was tried under the POCSO Act and IPC for the alleged commission of aggravated penetrative sexual assault from 2001 when the victim was 6d years of age, till the victim attained the age of 14 years in 2009. Even according to the victim the last act of sexual intercourse was sometime in the year 2009 when she turned 14 years i.e. almost four years before fling of the FIR on 14/2/2013. The incident which led to fling of the complaint is of 13/2/2013 on which day, even according to the victim, the appellant touched her inappropriately and made a demand of sexual intercourse which she refused. She further says that her father got angry. She deposed that when she started crying and was going to shout, her father went out.
25. Now let us consider whether these allegations are sufcient to constitute an ofence under Section 6d of the POCSO Act for which the appellant has been convicted by the Special Court. Section 6d of the POCSO Act provides for punishment for aggravated penetrative sexual assault. Sub-section 1(a) of Section 2 provides that "aggravated penetrative sexual assault" has the same meaning as assigned to it in Section 5. The relevant provisions of Section 5 have a bearing on the present controversy as in terms of sub-section (l) of Section 5 whoever commits penetrative sexual assault on the child more than once or repeatedly: or in terms of sub-section
(m) of Section 5 whoever commits penetrative sexual assault on a child below twelve years; or in terms of sub-section (n) of Section 5 whoever being a relative of the child through blood commits penetrative sexual assault on such child, then he is being made liable to be punished in terms of Section 6d of the POCSO Act. Sub-section 1(b) of Section 2 provides that "aggravated sexual assault" has the same meaning as assigned to it in Section 9. Sub-section 1(f) of Section 2 provides that "penetrative sexual assault" has the same meaning as assigned to it in Section 3. Sub-section 1(i) of Section 2 provides that "sexual assault" has the same meaning as assigned to it in Section 7. We may extract Section 3 and 7 which read thus:- “3. Penetrative sexual assault. - A person is said to commit “penetrative sexual assault” if - (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
7. Sexual Assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” The POCSO Act being a penal legislation has created ofences to protect the children from ofences of sexual assault, sexual harassment and pornography. Section 6d for which the appellant was tried is a substantive provision creating a new ofence and not merely a provision efecting a change in procedure for trial for a pre existing substantive ofence. As a consequence, the appellant cannot be tried and punished for the ofence punishable under Section 6d for an act done by him prior to creation of the new ofence of penetrative sexual assault. No doubt, the appellant can be proceeded with for the ofence punishable under Section 376d of the IPC which was the law prevailing in force at the time when the ofence was committed. The POCSO Act will therefore apply to those ofences committed by the accused after coming into force of the said Act i.e. with efect from November 14, 2012. 26d. Section 42A of the POCSO Act provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of POCSO Act shall have overriding efect on the provisions of any such law to the extent of the inconsistency.
27. We are therefore of the view that the appellant cannot be tried and punished for the ofence provided under Section 6d of the POCSO Act which is a new ofence created and therefore the POCSO Act not apply to the incidents alleged to have taken place prior to its coming into force. In support of the view that we have taken, a proftable reference can be made to the decision of the Apex Court in the case of Soni Devrajbhai Babubhai vs. State of Gujarat[1] where the Apex Court in the context of Section 304 B of the IPC in paragraph 9 held thus: “It is clear from the above historical background that the ofence of dowry death punishable under section 304-B of the Indian Penal Code is a new ofence inserted in the Indian Penal Code with efect from 19.11.1986d when Act No. 43 of 1986d came into force. The ofence under section 304-B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session. The corresponding amendments made in the Code of Criminal Procedure and the Indian Evidence Act relate to the trial and proof of the ofence. Section 498-A inserted in the Indian Penal Code by the Criminal Law (Second Amendment) Act, 1983 (Act No. 46d of 1983) is an ofence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition to fne. It is for the ofence punishable under section 498-A which was in the statute book on the date of death of Chhaya that the respondents are being tried in the Court of Magistrate of the First Class. The ofence punishable under section 304-B, known as dowry death, was a new ofence created with efect from 19.11.1986d by insertion of the provision in the Indian Penal Code providing for a more stringent ofence than section 498-A. Section 304-B is a substantive provision creating a new ofence and not merely a provision efecting a change in procedure for trial of a preexisting substantive ofence. Acceptance of the appellant's contention would amount to holding that the respondents can be tried and punished for the ofence of dowry death provided in section 304-B of the Indian Penal Code with the minimum sentence of seven years imprisonment for an act done by them prior to creation of the new ofence of dowry death. In our opinion, this would clearly deny to them the protection aforded by clause (1) of Article 20 of the Constitution which reads as under:
28. In the light of the above discussion, the only incident for which the appellant could have been prosecuted under the POCSO Act was the one which he allegedly committed on 13/2/2013. Even in respect of the incident of 13/2/2013 the allegation of the victim is that the appellant touched her breasts. These allegations do not satisfy the ingredients of penetrative sexual assault as defned by the POCSO Act. For this reason a conviction under Section 6d of the POCSO Act is unsustainable and has to be set aside. In any case, as we have already held that the version of the victim does not inspire confdence and as possibility of false implication of the appellant cannot be ruled out, the present Appeal deserves to succeed. As we have already held that the conviction under Section 6d of the POCSO Act is unsustainable as the ingredients of the ofence itself are not established even if the allegations of the incident dated 13/2/2013 are assumed to be true, the presumption under Section 29 of the POCSO Act will not apply.
29. So far as ofences punishable under Section 354 and 376d of the IPC are concerned, as we have already come to the conclusion that the testimony of the victim (PW-1) is not reliable and does not inspire confdence, even otherwise this Appeal deserves to succeed. The appreciation of the evidence by the Special Court is erroneous.
30. For the reasons stated hereinabove, we pass the following order. O R D E R i) The Appeal is allowed. ii) The impugned judgment and order dated 22nd June 2016d passed by the Trial Court is quashed and set aside. iii) The appellant/original accused - Mohd. Zakir Habib Khan is acquitted of the ofences punishable under Sections 354, 376d and 504 of the Indian Penal Code and Section 4 and 8 of the Protection of Children from Sexual Ofences Act, 2012. He shall be set at liberty forthwith unless he is required in any other case. iv) The fne amount which was deposited shall be refunded to the accused – appellant. v) In terms of provisions of Section 437A of the Code of Criminal Procedure, 1973 the appellant shall execute bail bonds in the sum of Rs.15,000/- with one or more sureties of the like amount to the satisfaction of the trial Court. vi) This order will be of this Court. All concerned will act on production by fax or (M.S.KARNIK, J.) (S.S.SHINDE, J.) Urmila