JUDGMENT : 

RANJITSINHA RAJA BHONSALE, J.

1) Criminal proceedings/trials, in which a conviction is based on circumstantial evidence, the possibility of the conviction being partly based on surmises or conjecture or even strong suspicion cannot be ruled out and the possibility of the surmises or conjecture taking the place and taking over legal evidence and proof is a lurking possibility. It is, therefore apt, to be reminded by, cautioned and guided by the following observation, in R. v. Hodge [R. v. Hodge, (1838) 2 Lew 227 : 168 ER 1136] that:-

“The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.”

2) The present Appeal, deals with a conviction, based on circumstantial evidence which is sought to be challenged by the Appellant i.e Original Accused No.2. The Appellant has preferred the present Appeal, challenging the Judgment and Order of conviction dated 1st September 2017, passed by the learned Special Judge in Special Case No. 328 of 2014 filed under the Protection of Children from Sexual Offences Act, 2012, whereby the Appellant is convicted under Section 363 of the Indian Penal Code, 1860 and sentenced to suffer rigorous imprisonment for five years. The Appellant, further seeks to challenge his conviction, for the offence punishable under section 302 of the Indian Penal Code, 1860, whereby he has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.1,00,000/- (Rs. One Lakh Only) and in default suffer simple imprisonment for two years. The Order directs, the fine amount if realized from Appellant, be paid to the informant Mr. Ajit Bankar, as a compensation under section 357(1)(b) of Criminal Procedure Code, 1973. Respondent No. 2 in the present Appeal, is the Original Complainant.

3) Briefly stated, the prosecution case, as alleged is as under.

3.1) Mr. Ajit Bankar (P.W.1) resided with his wife Anita, daughter and his 9 year old victim son, at E-8, Rudra Shivalay Society, Bhekrai Nagar, Fursungi, Tal-Haveli, Dist-Pune. Appellant (Original Accused No.2), Madhukar Sopan Kalane (Original Accused No.1/Appellant’s father) and Nalini Madhukar Kalane (Original Accused No.3/Appellant’s mother) were residing in flat No. E-4 in the same society and building. All accused being residents of the same society were known to the Complainant.

3.2) Mr. Ajit Bankar (P.W.1) and his wife Anita were a working couple. The school timings of daughter Manali, were from 12.30 p.m. to 5.30 p.m and that, of the victim son, were 7.20 a.m. to 2.20 p.m. The victim son, returned home from school, at about 2.20 p.m. and would inform his father P.W. No.1 about his return. The victim son was instructed to take the keys from neighbour Mrs. Rupali Choudhary (P.W.4). In the presence of P.W.4, victim son would open the door of the house and enter into it. The victim son was instructed not to open the door unless the person is known. That, the victim son remained alone at home till 5.30 p.m, when his mother would return from work. This routine of the victim son, was known to the residents of the Society.

3.3) On 27th August 2014, victim returned from school, took the keys of his house from P.W.4. That, in the presence of P.W.4, he entered the house and closed the door. That, victim on informing PW No.1 that, he had reached home, was instructed to remain in the house and study. That, victim informed P.W.1 that, he was watching TV.

3.4) That, at about 5.00 p.m. when the wife of P.W.1/mother of victim son returned home, she noticed that, the door of their house was open, TV was on and victim son was missing. She immediately informed P.W.1, who came