Criminal Appeal No. 845 of 2015,Criminal Appeal No. 848 of 2015,Criminal Appeal No. 941 of 2015

10th January, 2017.

Petitioner Counsel: Mr. S.G. LADDA, Mr. S.P. TILVE, Mr. P.S. PARANJAPE
Respondent Counsel: Mr. K.S. HOKE-PATIL

Cases Cited:
Birad Mal Singhvi Vs. Anand Purohit, 1988 (Supp.1) SCC 604 [Para 18]
Satpal Singh Vs. State of Haryana, 2010 ALL SCR 2526=2010 CRI.L.J. 4283 [Para 19]

JUDGMENT

JUDGMENT :- Being aggrieved by the Judgment and Order dated 28/10/2015 passed in Sessions Case No. 328/2014 by the learned Additional Sessions Judge, Aurangabad, the appellants have preferred these Appeals.

2. By the impugned Judgment, the appellant Ganesh @ Gorakh Tatyarao Jadhav [accused No. 1] has been convicted for the offence punishable u/s 376 of the Indian Penal Code and section 4 read with section 3 of the Protection of Children from Sexual Offences Act, 2012 [for short, 'POCSO Act'] and sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs. 2,000/- [Rupees Two Thousand]. The appellant Nos. 2 and 3 viz. Muskan w/o Shaikh Rashid @ Rafiq [accused No. 2] and Naziya Begum w/o Shaikh Afazal [accused No.3] were held guilty of offence punishable u/s 109 of the Indian Penal Code and section 17 of the POCSO Act and sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs. 2,000/-[Rupees Two Thousand] each. They were acquitted of the offences punishable u/ss 3,4 and 5 of the Immoral Traffic (Prevention) Act, 1956.

3. Brief facts leading to filing the Appeals as unfolded during the trial are summarized as under.

[i] On 17/08/2014, Ramchandra Shamrao Pawar [P.W.3], P.S.I. attached to police station CIDCO, Aurangabad lodged complaint to the effect that at about 15.30 hrs. while he was present in police station, as day officer, he received phone call whereby he was informed that in the house adjoining to "Rathi Sansar building" located in Sikandar Colony, Misarwadi, two women and one man are behaving in indecent manner and they have been caught and detained by the people from that locality. On receipt of the information, P.S.I. Pawar [P.W.3] instructed the police personnel on mobile duty as well as bit-marshal to visit the said place. After some time, the police personnel brought two women and one man to police station. On enquiry, those women disclosed their names as Muskan w/o Shaikh Rashid @ Rafiq [accused No. 2] and Diksha d/o Vijay @ Dilip Jamdade [P.W.1] [hereinafter referred as "prosecutrix"]. The man brought to police station, disclosed his name as Ganesh Tatyarao Jadhav [accused No. 1]. On enquiry with the prosecutrix, she disclosed that Muskan w/o Shaikh Rashid @ Rafiq [accused No. 2] and one woman by name Shammo [accused No. 3] had taken Rs. 700/- from Ganesh Tatyarao Jadhav [accused No. 1] and send prosecutrix to have sexual intercourse with him. Out of Rs. 700/- taken from accused No. 1, amount of Rs. 300/- was paid to her. She further disclosed that Shammo [accused No. 3] ran away from the spot. On the basis of enquiry made with the prosecutrix, P.S.I. Pawar lodged complaint. On the basis of complaint lodged by P.S.I. Pawar [P.W.3], the offences u/ss 3,4 and 5 of the Immoral Traffic (Prevention) Act, 1956 came to be registered against the accused persons. After registration of offence, Prakash Pawar, Police Inspector [P.W.8] conducted investigation. He arrested accused Ganesh Tatyarao Jadhav and Muskan w/o Shaikh Rashid @ Rafiq. Ganesh Tatyarao Jadhav [accused No. 1] and the prosecutrix were referred for medical examination. During the course of investigation, the statement of prosecutrix came to be recorded on 18/08/2014. The Investigating Officer has obtained copy of school leaving certificate received from the Head Master of Saint Tukaram Primary School, Ambedkarnagar, Aurangabad showing date of birth of the prosecutrix. The muddemal was sent to the Chemical Analyzer for examination. Further investigation was then conducted by Mr. Rajkumar Dongare, Police Inspector [P.W.10]. During the course of investigation, he has recorded statements of Syed Nizamuddin [P.W.7] and few other persons and arrested accused No. 3.

[ii] On conclusion of the investigation, charge sheet was prepared and filed in the Sessions Court at Aurangabad. In the due course, the case was assigned to the file of District Judge - 3 and Additional Sessions Judge, Aurangabad, who framed Charge against accused Nos. 1 to 3 for committing the offence punishable u/s 376 of the Indian Penal Code and section 3 (1) and section 4 of the POCSO Act. Besides this, accused Nos. 2 and 3 were separately charged for committing the offence u/s 16 of the POCSO Act. Accused Nos. 2 and 3 were also charged for committing the offence u/s 3,4 and 5 of the Immoral Traffic (Prevention) Act, 1956. All of them pleaded not guilty to the charge and claimed to be tried.

[iii] In order to prove its case, the prosecution has examined 10 witnesses. The accused have not entered into the witness box nor examined any witness. On the basis of cross examination of the prosecution witnesses and statement recorded u/s 313 of the Code of Criminal Procedure, the defence of the accused appears to be of total denial. On conclusion of trial the appellants were convicted and sentenced to undergo imprisonment as stated above. Being aggrieved the appellants have preferred these Appeals.

4. I have heard the submissions advanced by the learned counsel representing for the appellants and the learned A.P.P. for the State and carefully perused the record and proceedings.

5. If we consider the overall case of the prosecution, then the prosecution has approached with the case that on receipt of the telephonic information to the effect that two women and one man are behaving in indecent manner, the police personnel visited the place and caught those persons and brought them to the police station. On the basis of the enquiry made, it was revealed that accused Nos. 2 and 3 were running prostitution racket. They had accepted Rs. 700/- from accused No. 1 and out of which Rs. 300/- was paid to the prosecutrix for having sex with accused No. 1. On the basis of the information received from the prosecutrix, Mr. Pawar, P.S.I. [P.W.3] lodged complaint. Initially, the offence was registered u/ss 3,4 and 5 of the Immoral Traffic (Prevention) Act, 1956. During the course of investigation, the statement of the prosecutrix was recorded. As it was revealed that the prosecutrix was below 18 years of age, the offence u/s 376 of the Indian Penal Code and section 4 and section 16 of the POCSO Act were added during the course of investigation and Charge Sheet was prepared and filed in the Court against accused Nos. 1 to 3.

6. From the perusal of the reasons and findings recorded by the trial Court, it appears that the trial Court has convicted the appellants mainly for the reason the prosecutrix found to be below 18 years of age.

7. Learned counsel for the appellants have contended that the reasons and findings recorded by the trial Court are totally perverse and unsustainable in law. They have submitted that the trial Court has erred in reaching to the conclusion that the prosecution has proved the age of the prosecutrix as below 18 years. It is pointed out that at the time of medical examination, the prosecutrix has disclosed her age as 18 years. It is further pointed that the prosecutrix has stated in evidence that she has studied up to 5th standard. However, she has not stated the school in which she has studied. School leaving certificate at Exh. 77, as relied by prosecution, reflects that the girl as named in the certificate had joined the school in 6th standard and left the school when she was in 7th standard. In the school leaving certificate, the date of birth mentioned as 29/08/1997. Whereas prosecutrix has disclosed her date of birth as 19/08/1997. No primary evidence was brought on record to prove the exact birth date and age of the prosecutrix. The parents of the prosecutrix were not examined by the prosecution.

8. Learned counsel for the appellants further submits that there is no cogent, convincing and reliable evidence to sustain the conviction u/s 376 of the Indian Penal Code as well as POCSO Act. It is pointed out that it is nowhere the case of the prosecution that minor girl was subjected to sexual intercourse. As per the case set out, the prosecutrix [P.W.1] was habitually indulged in to prostitution. She has deposed that prior to the incident, she has undergone sexual intercourse for 5 to 6 times with different persons as she was unemployed. The medical report also reveals that she was habituated to sexual intercourse. Dr. Jaidip [P.W.5] has specifically deposed that no evidence of forcible sexual intercourse detected during the examination of prosecutrix. It is further pointed out that the prosecutrix has deposed in her cross examination that she has attained menstruation 3 to 4 years prior to the incident. She has categorically admitted that accused No. 1 had not approached her directly nor forced her to have sexual intercourse with him. In this view, the learned counsels submits that the prosecution has miserably failed to prove the guilt against the accused. It is further pointed out that though accused Nos. 2 and 3 have been held guilty of committing offence u/s 17 of the POCSO Act, charge u/s 17 of the POCSO Act was never framed against them. Similarly, accused Nos. 2 and 3 were never charged for committing the offence of abetting the act of commission of rape so as to punish them u/s 109 of the Indian Penal Code.

9. The learned counsels for the appellants have argued that except the bare words of the prosecutrix that accused No. 1 had committed sexual intercourse, there is no evidence to corroborate the testimony of the prosecutrix. In this context, learned counsels have invited attention to the testimony of Dr. Jaideep Solanke, Medical Officer [P.W.6] who has examined the prosecutrix immediately after the registration of the offence. In his Examination-in- Chief itself, he has deposed that from the physical examination of the prosecutrix, it was seen that no features suggestive of forcible sexual intercourse found during her medical examination. He has further stated that she may have sexual intercourse with consent. No injury was noticed on any part of the body of the prosecutrix including the private part. The hymen was found to be ruptured with old healed injury and she was found to be habituated with sexual intercourse. It is further pointed out that on examination of vaginal swab, vaginal smear by Chemical Analyser, no semen was detected which suggests that the victim had not undergone the sexual intercourse prior to her medical examination. In cross examination, Dr. Jaideep Solanke, [P.W.6] has categorically stated that from physical examination it was seen that there was no forcible sexual intercourse with prosecutrix. It is, therefore, contended that the prosecution has failed to prove that accused No. 1 had committed sexual intercourse with the prosecutrix immediately before they were caught and detained by the neighbours from the locality.

10. Learned A.P.P. has strenuously contended that the prosecutrix was found to be minor in age and, therefore, the consent of the prosecutrix was immaterial. By referring the testimony of the prosecutrix and the school leaving certificate [Exh.77] showing the age of the prosecutrix as 17 years 10 months, learned A.P.P. submits that the prosecution has proved its case beyond reasonable doubt.

11. In order to appreciate the submissions advanced, I have carefully scrutinized the evidence on record. The conviction of the accused is mainly based upon the testimony of prosecutrix [P.W.1]. She has deposed that she has studied up to 5th standard and residing with her mother,brother and sister. She further deposed that she met with accused No. 2 near T.V.centre. Accused No. 2 enquired about her work and thereafter she was asked to come along with her so as to provide work to her. She took her to Misarwadi and introduced with accused No. 3. Both of them asked her to have sexual intercourse with accused No. 1 and also agreed to pay money to her for that purpose. She further deposed that accused Nos. 2 and 3 obtained money from accused No. 1 and sent her with accused No. 1. Thereafter, some people from the locality caught them and handed over to police. She further deposed that her date of birth is 19/08/1997. Thus, if we go by the testimony of the prosecutrix, then the act of sexual intercourse with her by accused No. 1 was voluntary and without any force. No one has compelled her to have sex with accused No. 1. It further shows that the prosecutrix agreed to have sex with accused No. 1 by accepting money. The money received from accused No. 1 was shared amongst the prosecutrix and accused Nos. 2 and 3. Thus, it is clear that accused Nos. 2 and 3 were running brothel and the prosecutrix was voluntarily working as sex worker in the brothel run by accused No. 3.

12. If we consider the cross-examination of the prosecutrix, then it is amply clear that the prosecutrix, was doing the labour work. She has entered in to prostitution due to poverty. She has deposed that prior to the incident, she had sexual intercourse for 5 to 6 times with different persons/customers at Misarwadi in the house of accused No. 3. She has further deposed that she had knowledge of the sexual intercourse and she has attained menstruation prior to 3 to 4 years of the incident. It establishes the fact that the prosecutrix was fully matured girl and acted voluntarily to have sex with the customers in the brothel run by accused Shamo. From the case put-forth by the prosecution and the fact deposed by the prosecutrix, it is established that the prosecutrix has voluntarily undertaken the profession as sex worker for monitory consideration.

13. The accused though tried for the offence punishable u/s 3,4 and 5 of the Immoral Traffic (Prevention) Act, 1956 and they were acquitted by the trial Court. No Appeal has been preferred against the acquittal of the accused u/s 3,4 and 5 of the Immoral Traffic [Prevention] Act, 1956.

14. In my view, the prosecutrix can not be treated as witness whose testimony to be treated as wholly reliable and can form sole basis to convict the accused. It has been brought on record that the prosecutrix has voluntarily indulged into act of prostitution for monitory consideration. It is nowhere the case of the prosecution that the prosecutrix was sexually exploited or she was forced in the prostitution business by accused Nos. 2 and 3. She has undertaken the profession as sex worker on her own. In this view, it is unsafe to place reliance on the testimony of such witness without corroboration. As discussed, there is no corroborative evidence to establish that immediately before they were caught and handed over to police, they had undergone sexual intercourse. In this view, the prosecution has failed to establish that the offence u/s 376 of the Indian Penal Code has been committed by accused No. 1. In absence of proving the offence u/s 376 of the Indian Penal Code, the conviction of accused Nos. 2 and 3 with the aid of section 109 of the Indian Penal Code is also not sustainable.

15. The crucial question in the instant case is whether the prosecution has proved that the prosecutrix was minor at the time of incident. As discussed, the prosecutrix has disclosed her date of birth as 19/08/1997. There is no corroborative evidence produced on record to corroborate the testimony of the prosecutrix that she was born on 19/08/1997. The school leaving certificate [Exh.77] reflects that at the time of admission of the prosecutrix in 6th standard, the date of birth of the proscutrix was recorded as 29/08/1997. In order to prove the school leaving certificate [Exh.77], the prosecution has examined Mr. Prakash Sonawane [P.W.9], the Head Maser of Saint Tukaram Primary School, Ambedkarnagar, Aurangabd. He has deposed that prosecutrix was admitted in 6th standard in the year 2012. As per the school record, the date of birth of the prosecutrix recorded as 29/08/1997. He has admitted in the cross examination that the date of birth has been recorded on the basis of previous school leaving certificate produced at the time of admission of the prosecutrix in 6th standard. He has admitted that he has not separately verified the date of birth of the prosecutrix on the basis of birth certificate other than the previous school leaving certificate. If we consider the evidence in its totality, then there is no cogent, convincing and reliable evidence to conclusively establish the date of birth of the prosecutrix and to establish the fact that she was minor at the time of commission of the offence.

16. The prosecutrix has stated that she has studied up to 5th standard. She has not stated anything about the school in which she had studied. The school leaving certificate produced at Exh. 77 refers to one Diksha Deelip Jamdhade, whereas the prosecutrix has disclosed her name as Diksha d/o Vijay @ Dilip Jamdhade. In the school leaving certificate produced at Exh. 77 it is shown that said girl was admitted in 6th standard and left the school when she was in 7th standard. Prosecutrix has not deposed anything about the school in which she studied up to 5th standard. She has also not stated anything about her admission in 6th standard in Saint Tukaram school and leaving school in 7th standard. The date of birth recorded in the school admission register was recorded on the basis of the previous school leaving certificate. It is pertinent to note that extract from the school admission register, on the basis of which school leaving certificate [Exh.77] was issued, not placed on record. No doubt, u/s 35 of the Indian Evidence Act, there is presumption of the correctness of the entry recorded in the school record as taken in discharge of official business. But, the production of such school leaving certificate itself is not sufficient to raise presumption and to conclusively establish the date of birth of prosecutrix.

17. The prosecution has not examined the parents of the prosecutrix to establish that the date of birth of prosecutrix as 19/08/1997 or 29/08/1997 and at the time of incident she was minor. In this context, the observations made by the learned Additional Sessions Judge are unacceptable. It is observed by the learned Additional Sessions Judge that as the father of the victim has deserted her mother and mother of the prosecutrix being helpless woman and so because of the registration of case under the Immoral Traffic (Prevention) Act, 1956 she might have suffered humiliation and, therefore, she was not expected to appear and give evidence before the Court. It is further observed that giving evidence and facing cross examination in the Court is more humiliating than prostitution within four walls. In my view, such reasonings are wholly unsustainable in law. It is pertinent to note that the prosecution has neither cited nor made any attempt to cite and examine the mother of the prosecutrix. In absence of mother of the proecutrix cited as witness, there was no reason for the learned Judge to make such observations based upon his own imagination. In fact, it was a lapse on the part of the Investigating Officer to properly conduct the investigation and to collect the requisite evidence.

18. In support of submission that the entry in school register is of not much evidenciary value to prove the age of the prosecutrix, in absence of material on the basis of which age was recorded, the learned counsels for the appellants have placed reliance on the decision of the Apex Court in the case of Birad Mal Singhvi Vs. Anand Purohit reported in 1988 (Supp.1) SCC 604. In para No. 15 of the said Judgment, the Apex Court has observed as under :

"To render a document admissible u/s 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible u/s 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded."

It has been further observed that :

"It has been consistently held that date of birth mentioned in the scholars register or secondary school certificate has no probative value either the parents are examined or the person on whose information the entry may have been made, is examined."

19. The learned counsel for the appellants in support of the submissions advanced further relied on the decision of the Apex Court in the case of Satpal Singh Vs. State of Haryana reported in 2010 CRI.L.J. 4283 : [2010 ALL SCR 2526]. In para No. 27 of the said Judgment, the Apex Court observed that :

" Thus, the law on the issue can be summarized that the entry made in the official record by an official or person authorized in performance of an official duty is admissible u/s 35 of the Evidence Act but the party may still ask the Court/Authority to examine its probative value. The authenticity of the entry would depend as on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case."

20. Thus, on considering the overall evidence on record and legal position, as discussed above, I am of the view that there is no cogent, convincing and reliable evidence to conclusively establish that at the time of alleged commission of the offence, the prosecutrix was minor in age. The evidence, as produced in the form of school leaving certificate [Exh. 77], can not be treated as conclusive evidence to prove the date of birth of the prosecutrix, vis-a-vis her age as minor.

21. On reaching to the conclusion that the prosecution has failed to prove the age of the prosecutrix as minor, I have no hesitation to hold that the conviction of accused No. 1 is not sustainable in law. As discussed, there is no evidence that accused No. 1 has committed sexual intercourse with the prosecutrix against her wish and desire. On the contrary, the evidence on record clearly demonstrates that the sexual intercourse was voluntary and consentual. The prosecutrix [P.W.1] has deposed that accused Nos. 2 and 3 have accepted Rs. 700/- from accused No. 1, who had come there as customer. Out of Rs. 700/-, the prosecutrix received Rs. 300/- for having sex with accused No. 1. She has deposed that after receiving the amount, she was sent with accused No. 1 to have sex with him. Both of them then entered into the room. While they were inside the room, the persons from the locality came there and later-on they were brought to the police station. Thus, there is no i'ota of evidence to show that the prosecutrix was compelled to have sexual intercourse with accused No. 1. There is absolutely no evidence that accused No. 1 committed sexual intercourse against the wish and desire of the prosecutrix.

22. The evidence on record spell out that accused No. 1 had sex with the prosecutrix as a customer. The prosecutrix has admitted that she was in business of prostitution much prior to the date of the incident. She has deposed that 5 to 6 times prior to the incident, she had sex with various persons and that too for money she received from those persons. In this view, there is no case of rape made out against accused No.1.

23. Even if we consider the case of the prosecution in its entirety and accept the allegations made against the accused are correct, still, in my view, no case is made out to sustain the charge u/s 376 of the Indian Penal Code. As discussed above, the accused No. 1 visited the brothel run by accused No. 3 Shammo. At the brothel, the prosecutrix was present. Accused No. 1 paid an amount of Rs. 700/- to accused Shammo, who was running the brothel, for having sex with the prosecutrix. Out of Rs. 700/-, amount of Rs. 300/- was given to the prosecutrix for having sex with accused No. 1 who visited the brothel as a customer. Thus, if the allegations are taken in its entirety, still it makes out the case that the prosecutrix has agreed to have sex with accused No. 1 for monetary consideration. No element of deception or compulsion exist in the case. It is nowhere case of the prosecution that the prosecutrix was compelled to have sexual intercourse with accused No. 1 by any of the accused. She voluntarily undertook the business of prostitution and that too for money. It is nowhere the case of the prosecution that the prosecutrix was subjected to prostitution against her wish and desire. On the contrary, the prosecutrix was doing the prostitution on her own will to earn money. In this backdrop, if we examine the case, then, no offence u/s 376 of the Indian Penal Code stands proved against accused No. 1.

24. In my view, the act committed with criminal intent can alone constitute an offence under law. In absence of criminal intent on the part of a person, such act can not be termed as an offence in the eyes of law. The offence of rape also requires a mens-ria on the part of accused to commit such offence. In the case in hand, no such criminal intent can be inferred on the part of accused to commit offence of rape as defined u/s 375 and made punishable u/s 376 of Indian Penal Code. Undisputedly, the accused No. 1 visited the place as a customer to have sex with the sex worker in the brothel run by accused Shammo. There was no reason for accused No. 1 to conduct enquiry about the age of the prosecutrix. The evidence on record clearly shows that the prosecutrix was fully grown up girl. Even as per the case of the prosecution, the prosecutrix was at the verge of attaining the age of majority. In such a situation, it was not expected on the part of accused No. 1 to have made enquiry with the prosecutrix about her age before having sex with her. So also, there was no reason for accused No. 1 to ascertain the age of the prosecutrix. In absence of any criminal intent on the part of accused No. 1, the act in question on his part can not be termed as an offence punishable under the law and particularly the offence u/s 376 of the Indian Penal Code. Certainly, the accused could have been prosecuted for the offence punishable under the provisions of the Immoral Traffic [Prevention] Act, 1956. In fact, initially, the F.I.R. was registered for commission of offence u/ss 3,4 and 5 of the Immoral Traffic [Prevention] Act. While charge sheeting accused, the charge u/s 376 of Indian Penal Code and POCSO Act been added. Besides the charge u/s 376 of the Indian Penal Code, the accused were charged u/ss 3,4 5 of the Immoral Traffic [Prevention] Act. However, they have been acquitted by the trial Court for offences under Immoral Traffic [Prevention] Act. The prosecution has not challenged the acquittal of accused under the said provisions of law. In this backdrop, I have no hesitation to hold that the reasons and the findings recorded by the trial Court are not sustainable in law.

25. The conviction awarded by the trial Court based upon the premise that the prosecution has proved the age of the prosecutrix as below 18 years. As discussed above, the prosecution has failed to conclusively prove the age of the prosecutrix as below 18 years. In this view, the reasons and the findings recorded by the trial Court are perverse and not sustainable in law.

26. On perusal of the charge framed by the trial Court, it appears that the charge has been framed in a most casual manner. Accused Nos. 2 and 3 have been charged along with accused No. 1 for committing the offence u/s 376 of the Indian Penal Code. In fact, it is nowhere the case of the prosecution that accused Nos. 2 and 3 have committed the offence u/s 376 of the Indian Penal Code. On the contrary, the case of the prosecution as against accused Nos. 2 and 3 rest with allegations that they indulged into an act of running brothel and procuring, inducing or taking a person for the sake of prostitution. Therefore, the charge of aiding and abetting accused No. 1 in commission of rape is not sustainable in law. Accused Nos. 2 and 3 have been convicted for the offence punishable u/s 17 of the POCSO Act, though no charge u/s 17 of the POCSO Act has been framed against them. The Charge u/s 16 of the POCSO Act has been framed by the trial Court, which in fact defines the meaning of the word 'abetment of offence' which is made punishable u/s 17 of the POCSO Act. In absence of specific charge being framed against accused Nos. 2 and 3, their conviction is not sustainable in law.

27. As discussed above, the reasons and findings recorded by the trial Court are not sustainable in law. In the result, the Appeals are deserves to be allowed and the conviction awarded by the trial Court needs to be set aside.

Hence, the following order.

(i) Criminal Appeal Nos. 845 of 2015, 848 of 2015 and 941 of 2015 are allowed.

(ii) The Judgment and Order dated 28/10/2015 passed in Sessions Case No. 328/2014 by the learned Additional Sessions Judge, Aurangabad is set aside.

(iii) Accused No. 1 Ganesh @ Gorakh Tatyarao Jadhav in Sessions Case No. 328 of 2014 is acquitted of the offence punishable u/s 376 of the Indian Penal Code and Section 4 read with section 3 of the Protection of Children from sexual Offences Act, 2012. Fine amount, if any, paid by him be refunded to him and set him at liberty if not required in any other case.

(iv) The conviction of appellant Muskan w/o Shaikh Rashid @ Rafiq [accused No. 2] in Criminal Appeal No. 845 of 2015 and appellant Naziya Begum w/o Shaikh Afazal [accused No. 3] in Criminal Appeal No. 848 of 2015 for offence u/s 109 of the Indian Penal Code and u/s 17 of the Protection of Children from sexual Offences Act, 2012 is set aside. Fine amount, if any, paid be refunded to them and set them at their liberty if not required in any other case.

(v) Rs. 3,000/- [Rupees Three Thousand] be paid to Mr. P.S.Paranjape, learned counsel appointed to represent accused No. 1 Ganesh @ Gorakh Tatyarao Jadhav.

Appeal allowed.