JUDGMENT : SADHANA S. JADHAV, J. 1. The appellant herein is convicted for the offence punishable under section 363, 354, 307 of the Indian Penal Code and sentenced to suffer R.I. for 7 years and fine of Rs. 1,000/- I.d. to suffer R.I. for 3 months for the offence punishable under section 363 of the IPC, sentenced to suffer R.I. for 2 years and to pay fine of Rs. 1000/- I.d. to suffer imprisonment for one month for offence punishable under section 354 of the Indian Penal Code and sentenced to suffer R.I. for 7 years and to pay fine of Rs. 1000/- I.d. to suffer imprisonment for 3 months for offence punishable under section 307 of the Indian Penal Code, by District Judge-5 and Additional Sessions Judge, Thane, vide Judgment and Order dated 27/6/2014 in Sessions Case No. 429 of 2008. Hence, this appeal. 2. Such of the facts necessary for the decision of this appeal are as follows : (i) It is the case of the prosecution that on 18/1/2008 Subhash Chorat lodged a report at the police station alleging therein that the appellant was staying in their neighbourhood with his maternal aunt Pushpa Palwe. He used to visit their house quite often. One month prior to the incident, the accused was teaching his minor daughter Ms. X to ride bicycle. (ii) On 18/1/2008 when he was in the APMC food-grain market, at about 6 to 6.15 p.m. he had received an anonymous call informing him that his daughter was lying in an injured condition near Kopari bridge. The informant rushed to the spot. He saw that his daughter had sustained bleeding injury on her forehead. Her eyes were swollen and there was injury to her neck. With the help of the passers by, he had taken her to the hospital. (iii) Upon enquiry, she had disclosed that on that day at about 5.00 p.m. the appellant herein under the garb of teaching her bicycle, had taken her upto Kopari bridge. There he had taken her under a tunnel. He had made her fall down and had attempted to denude her of her clothes and pushed himself upon her. She resisted the said act to the best of her capacity. At that juncture, he had assaulted her with stone lying nearby. She continued to raise hue and cry. There he had taken her under a tunnel. He had made her fall down and had attempted to denude her of her clothes and pushed himself upon her. She resisted the said act to the best of her capacity. At that juncture, he had assaulted her with stone lying nearby. She continued to raise hue and cry. At that stage, he had attempted to strangulate her by her stole. She pretended to have become unconscious. He was scared and therefore, fled from the spot. (iv) The victim was treated as an indoor patient for 8 days in Sion Hospital. On the basis of the report lodged by P.W. 1, Crime No. 12 of 2008 was registered against the accused for offence punishable under section 363, 342, 376 and 307 of the Indian Penal Code. (v) After completion of investigation, the charge-sheet was filed on 4/10/2008. The case was committed to the Court of Sessions and registered as Sessions Case No. 429 of 2008. The prosecution examined as many as 9 witnesses to bring home the guilt of the accused. 3. The case rests on the evidence of P.W. 4, P.W.1, P.W.7, P.W.8 and P.W. 9. The learned Counsel for the appellants submits that since the investigating officer had died during the pendency of the trial, he could not be examined. P.W. 6 Prakash Nilewar has been examined to prove the papers of investigation. 4. P.W. 4 Ms. X is the victim. Her date of birth is 5/10/1996 and the date of incident is 18/1/2008. She was barely 12 years old. According to her, on the said day, she returned from the school, played with her brother for some time and then, she went to the house of Pushpa Palwe to play with her children. The appellant who was residing with Pushpa Palwe had told her that he would show her the caves while teaching her to ride cycle. He had then taken her beneath Kopari bridge. She had expressed anguish upon being brought so far. Thereafter, he forcibly lifted her and attempted to denude her of her clothes. When she continued with her resistance, he assaulted her with stone and then attempted to strangulate her with her stole, thereby causing injury. Only because she pretended to have fallen unconscious, he threw her on the ground. He was watching from nearby distance. The passers by had enquired with her. When she continued with her resistance, he assaulted her with stone and then attempted to strangulate her with her stole, thereby causing injury. Only because she pretended to have fallen unconscious, he threw her on the ground. He was watching from nearby distance. The passers by had enquired with her. She had given her father's phone number and asked them to inform her father. Upon receiving the phone call, her father reached the spot and she was taken to the hospital. 5. The victim had stood the test of cross-examination. It is admitted that the appellant used to teach her to ride bicycle but in nearby vicinity. She has categorically denied the suggestion that while riding bicycle her stole had got entangled in the tyre of the bicycle and therefore, she fell down and sustained injury. In fact, the stole she was wearing was so small that the same could not have entangled in the tire of the cycle. She was questioned as to whether she was conscious when she was taken to Mathadi Hospital. She had admitted the same. She has further stated that she was unconscious for 2 to 3 days. 6. The learned Counsel for the appellant submits that in fact, the medical papers did not corroborate the fact that she was unconscious when she was admitted in the hospital because there is specific endorsement that the patient is conscious and cooperative and oriented at the time of admission. The learned Counsel has also submitted that the victim who happens to be a school going child has stated that she does not remember whether her statement was recorded on 27/8/2008 i.e. when she reached the house of her maternal aunt. However, it would be immaterial as to when her statement was specifically recorded since the FIR was lodged on the basis of her disclosure on 18/1/2008. 7. P.W. 1 i.e. the father of the victim has proved the contents of FIR which is marked as Exh.11. The defence could not create any dent in substantive evidence. 8. P.W. 3 Sunita Chorat happens to be the mother of the victim. She has also deposed before the Court that her daughter had informed her about the incident immediately. It appears from the record that the victim was first taken to Mathadi Hospital where the history was given that she has been assaulted by Navnath Gaikwad i.e. the present appellant. P.W. 3 Sunita Chorat happens to be the mother of the victim. She has also deposed before the Court that her daughter had informed her about the incident immediately. It appears from the record that the victim was first taken to Mathadi Hospital where the history was given that she has been assaulted by Navnath Gaikwad i.e. the present appellant. 9. P.W. 7 Dr. Meena Kumar has deposed before the Court that the victim was unconscious for 10 to 15 minutes and thereafter, she had regained consciousness. That the victim had developed a black eye as there was contused lacerated wound at the left eye and subcontinental haemorrhage to both the eyes and there were marks of strangulation on the throat. The medical papers maintained by Sion Hospital are at Exh. 39. It is admitted by the witness that the papers were prepared and signed by Dr. Nitin Gundre. That she is acquainted with his signature. She could identify his signature as he was working as her assistant. She had admitted that there is no reference to age of injury, history and whether injury was bleeding or not and its nature in the medical case papers. 9. P.W. 8 Dr. Upendra Bhalerao, who had examined the victim has deposed before the Court that the victim had loss of consciousness, vomiting, suggestive of head injury. There was history of strangulation. The external injuries found on her person were as follows : (i) Left black eye (ii) Strangulation mark over the throat. (iii) Subcongentival Haemorrhage bilateral (iv) CLW 2 x 1 cm. Over left eye. She was conscious at the time of admission and examination. 10. P.W. 9 Dr. Nitin Pradeep Gundre had examined the patient and has issued a certificate which is at Exh. 39. He has deposed in consonance with the medical certificate. 11. The learned Counsel for the appellant submits that nonexamination of the Investigating Officer has caused grave prejudice to the defence of the accused in as much as the omissions, contradictions and omissions amounting to contradiction should not be proved by the defence. 12. At this stage, learned APP submits that there are no material omissions and contradictions which needed to be proved by the trial as the victim and witnesses have stood the test of cross-examination and that they could not be shattered. 12. At this stage, learned APP submits that there are no material omissions and contradictions which needed to be proved by the trial as the victim and witnesses have stood the test of cross-examination and that they could not be shattered. The prosecution in fact, has proved the guilt of the accused beyond reasonable doubt. There is no reason to disbelieve the victim in any way. All that the accused has pleaded is "not guilty" and has submitted that he has been falsely implicated and that the witnesses have taken advantage of the injuries sustained by the victim and have falsely implicated him in the present case. 13. In fact, there is no reason for the victim to falsely implicate the appellant on any ground. The deposition of the victim by itself appears to be true and voluntary and therefore, inspires the confidence of the Court. Moreover, the charges that are levelled against the appellant are proved by documentary evidence also. However, in the present case, no evidence under section 363 of the Indian Penal Code is made out as there is nothing on record to indicate that the appellant had either abducted or kidnapped the victim. He had in fact, misled her to Kopari bridge under the garb of teaching her to ride bicycle. In any case, he was teaching her for atleast 2 months prior to the incident and therefore, there is no material to attract offence under section 363 of the Indian Penal Code is made out. Hence, he deserves to be acquitted for the offence punishable under section 363 of the Indian Penal Code. 14. This Court had called for report from the Nashik Road Central Prison where the appellant is lodged. The report shows that the appellant has undergone 4 years, 10 months and 13 days of rigorous imprisonment till today. The appeal is of the year 2014 and the same could not be heard expeditiously. In view of this, imposition of sentence of R.I. for 6 years would meet the ends of justice. 15. Before parting with the judgment, this Court would appreciate the learned Advocate Mr. Lokesh Zade, who has put in best of his efforts to espouse the cause of the appellant. He has assisted the Court. His professional fees are quantified as per rules, to be paid by the High Court Legal Services Committee, within 3 months. 16. 15. Before parting with the judgment, this Court would appreciate the learned Advocate Mr. Lokesh Zade, who has put in best of his efforts to espouse the cause of the appellant. He has assisted the Court. His professional fees are quantified as per rules, to be paid by the High Court Legal Services Committee, within 3 months. 16. Hence following order is passed : ORDER : (i) The Appeal is partly allowed. (ii) The appellant is acquitted of the offence punishable under section 363 of the Indian Penal Code. (iii) The conviction of the appellant for the offence punishable under section 354 and 307 of the Indian Penal Code is upheld. (iv) The appellant has undergone sentence for the offence punishable under section 354 of the Indian Penal Code. (v) The sentence for the offence punishable under section 307 of the Indian Penal Code is modified. He is sentenced to suffer R.I. for 6 years. Sentence of fine is maintained. (vi) Writ be issued expeditiously. (vii) The appeal is disposed of accordingly. Office to communicate this order to the appellant who is lodged in jail.