Bombay High Court
Poshan S/O. Domulal Sahu vs State Of Mah. Thr. Ps Padoli, Dist. … on 15 April, 2025
2025:BHC-NAG:3887
Judgment
388 apeal243.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.243 OF 2023
Poshan s/o Domulal Sahu,
aged 24 years, occupation- painter,
r/o Nayapara, Balod, district Balod,
Chhattisgarh. ..... Appellant.
:: V E R S U S ::
1. State of Maharashtra,
through Police Station Padoli,
district Chandrapur, M.S.
2. Victim XYZ
of crime No.61/2020
of Police Station Padoli,
district Chandrapur (M.S.)
through Police Station Padoli,
district Chandrapur, MS. ..... Respondents.
Shri S.S.Das, Counsel Appointed for the Appellant.
Mrs.S.S.Dhote, Additional Public Prosecutor for
Respondent No.1/State.
Ms.Apurva Kolhe, Counsel Appointed for Respondent
No.2/Victim.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 17/03/2025
PRONOUNCED ON : 15/04/2025
.....2/-
Judgment
388 apeal243.23
2
JUDGMENT
1. By this appeal, the appellant (accused) has
challenged judgment and order dated 19.9.2022 passed
by learned Special Judge, Special Court (POCSO),
Chandrapur (learned Judge of the trial court) in Special
(POCSO) Case No.91/2021.
2. By the judgment impugned in the appeal, the
accused is convicted for offence under Section 363 of the
Indian Penal Code and sentenced to undergo rigorous
imprisonment for 3 years and to pay fine Rs.3000/-, in
default, to undergo rigorous imprisonment for 6 months.
The accused is further convicted for offence under
Section 4 of the Protection of Children from Sexual
Offences Act, 2012 (the POCSO Act) read with Section
376(3)(n) of the Indian Penal Code and sentenced to
undergo rigorous imprisonment for 20 years and to pay
…..3/-
Judgment
388 apeal243.23
3
fine Rs.5000/-, in default, to undergo rigorous
imprisonment for 12 months.
3. Brief facts of the prosecution case emerged from
the police papers and recorded evidence are as under:
The father of the victim girl lodged report alleging
that on 2.3.2020 at about 6:30 am, his daughter, the
victim girl, had gone to attend her school at Janta
Vidyalaya at Tadali. On that day, she has to appear for
her examination and the examination paper was till 11:00
am. At about 9:30 am, the accused, who is brother of the
informant, took his son along with him and went to Janta
Vidyalaya and took the victim on the pretext that the
informant met with an accident. He has sent brother of
the victim back at the house and took the victim along
with him. On the basis of the said report, the police
registered the crime against the accused.
…..4/-
Judgment
388 apeal243.23
4
4. After registration of the crime, the victim girl was
searched, but she was not traced and subsequently after 3
months, the police came to know that the victim girl is at
Balod in Chhattisgarh. They visited the same place and
the victim girl was brought to the police station. On
recording her statement, it revealed that she was taken by
the accused at various places and subjected her for the
forceful sexual assault on multiple occasions and brought
her at Balod wherein she was found. After recording her
statement, Section 376(2)(n) as well as Sections 4 and 10
of The Protection of Children from Sexual Offences
(POCSO) Act, 2012 (the POCSO Act) were added and the
accused was arrested. The victim girl and the accused
both were sent for medical examination. After completing
formality of the investigation, chargesheet was submitted
against the accused.
…..5/-
Judgment
388 apeal243.23
5
5. Learned Judge of the trial court framed charge
against the accused vide Exh.18. The contents of the
charge are explained to the accused to which he pleaded
not guilty. In support of the prosecution case, the
prosecution has examined as many as 11 witnesses, as
follows:
PW Names of Witnesses Exh.
Nos. Nos.
1 Sandip Bobade, pancha on spot 23
2 Father of the victim girl 26
3 The victim 30
4 Dr.Ananya Dixit 33
5 Sikandar Jabbar Khan, pancha on 39
seizure
6 Prakash Evnathe 43
7 Sudha Umare, teacher of the victim 49
8 The brother of the victim girl 51
9 Bhadu Awale, pancha on seizure 53
10 Dadarao Talvekar, Investigating Officer 57
11 Chanda Dandwate, Investigating Officer 65
.....6/-
Judgment
388 apeal243.23
6
6. Besides the oral evidence, the prosecution placed
reliance on spot panchanama Exh.24, report Exh.27, FIR
Exh.28, medical certificate of the victim girl Exh.31, letter
to the Medical Officer Exh.34, requisition to Chemical
Analyzer Exh.37, seizure memo Exh.40, spot panchanama
Exh.41, birth report Exh.45, birth certificate Exh.46,
seizure panchanama Exhs.54 and 55, arrest panchanama
Exh.63, requisition to Chemical Analyzer Exhs.67 and 72.
7. All the incriminating evidence is put to the accused
in order to obtain his explanation as to the evidence
appearing against him by recording his statement under
Section 313 of the CrPC. Defence of the accused is of
total denial and of false implication.
8. After recording the evidence and appreciating the
same, learned Judge of the trial court held the accused
guilty and sentenced him as the aforesaid.
…..7/-
Judgment
388 apeal243.23
7
9. Being aggrieved and dissatisfied with the same, the
present appeal is preferred on the ground that learned
Judge of the trial court has not appreciated the fact that
age of the victim girl is not proved by the prosecution as
well as the evidence of the victim girl and other witnesses
nowhere establishes that the victim girl was “enticed” or
“taken by the accused from lawful guardianship of her
father” and subjected her for the forceful sexual assault.
10. Heard learned counsel Shri S.S.Das appointed for
the accused, learned Additional Public Prosecutor
Mrs.S.S.Dhote for the State, and learned counsel
Ms.Apurva Kolhe appointed for the victim girl
11. Learned counsel for the accused submitted that to
prove the charge, the prosecution has examined as many
as 11 witnesses. The birth certificate is not to be relied
upon as the document placed on record is inconsistent
…..8/-
Judgment
388 apeal243.23
8
with the birth certificate. The evidence of the victim girl
is also not consistent and she is proned to shift her stand
time to time. There is no independent corroboration to
the evidence of the victim. The fact that she was
subjected for sexual assault by the accused is also not
established. The accused being brother of the informant
is implicated falsely due to the family dispute. For all
above these reasons, the evidence of prone to shift her
stand time to time is to be discarded and the judgment
and order of conviction impugned in the appeal deserves
to be quashed and set aside.
12. In support of his contentions, learned counsel for
the accused placed reliance on following decisions:
1. Surjit Biswas vs. State of Assam, reported in
2013 Cri LJ 3140;
2. Pramod Dattatraya Jadhav vs. The State of
Maharashtra, reported in 2019 ALL MR (Cri)
1742,…..9/-
Judgment
388 apeal243.23
9
3. Ravi Anandrao Gurpude vs. State of
Maharashtra, reported in 2017 ALL MR (Cri)
1509.
13. Per contra, learned Additional Public Prosecutor for
the State supported the judgment impugned in the appeal
and submitted that the accused is the real uncle of the
victim girl. The birth date of the victim girl is established
by the prosecution by adducing the evidence by
examining PW6 Prakash Evnathe. The birth date of the
victim girl is also stated by PW2 father of the victim and
PW3 victim. As to the age of the victim, no contrary
evidence is brought on record. The evidence of the father
of the victim, victim, PW8 brother of the victim, and PW7
Sudha Umare, teacher of the victim at the relevant time,
consistently states that the victim was taken by the
accused. After the incident, due to the covid pandemic,
transportation facilities were restricted, the accused was
…..10/-
Judgment
388 apeal243.23
10
in a dominant position over the victim is the reason that
the victim could not disclose this fact to anybody. The
evidence of the victim as to the fact that she was taken by
the accused on a pretext that her father met with an
accident and taken her at various places and subjected
her for sexual assault is established. There is a
corroboration by PW7 Sudha Umare, teacher of the
victim, and PW8 brother of the victim to the fact that the
victim was taken by the accused. The evidence of the
investigating officer shows that the victim was taken into
custody from Balod (Chhattisgarh). There is no reason
come before the court to show that there was any ulterior
motive for the victim to falsely implicate the accused. The
independent corroboration to the evidence of the victim is
not required as it inspires the confidence.
14. Learned counsel for the victim also supported the
argument of learned Additional Public Prosecutor for the
…..11/-
Judgment
388 apeal243.23
11
State and submitted that age of the victim is proved.
There is compliance of Section 24 of the POCSO Act also.
Thus, the consistent evidence on record sufficiently shows
the involvement of the accused in the alleged crime and,
therefore, the appeal being devoid of merits is liable to be
dismissed.
15. Learned counsel appearing for respective parties
also taken me through the entire evidence and the record.
16. The accused is charged of the offence under
Section 363 of the IPC on an allegation that the victim is
taken by the accused by enticing her and taking her from
the lawful guardianship of her father.
17. Before entertaining into the merits of the case, it is
necessary to refer the definition of “kidnapping” given
under Section 361 of the IPC (137 (1)(b) of the BNS)
which states that whoever takes or entices any minor
…..12/-
Judgment
388 apeal243.23
12
under sixteen years of age if a male, or under eighteen
years of age if a female, or any person of unsound mind,
out of the keeping of the lawful guardian of such minor or
person of unsound mind, without the consent of such
guardian, is said to kidnap such minor or person from
lawful guardianship.
Explanation to the said Section states that words
“lawful guardian” in this section include any person
lawfully entrusted with the care or custody of such minor
or other person.
18. To establish the charge under Section 363 of the
IPC, the prosecution mainly placed reliance on the
evidence of the father of the victim, the victim, and PW6
Prakash Evnathe to prove the age of the victim.
19. The father of the victim deposed that date of birth
of the victim is 7.3.2007. The victim also narrated her
…..13/-
Judgment
388 apeal243.23
13
birth date as 7.3.2007. These both witnesses are cross
examined on the aspect of birth date. The father of the
victim admitted that he has not stated the date of birth of
the victim while lodging the report. Except this cross
examination, nothing is brought on record to falsify the
version of the father as to the birth date of the victim.
The victim is also not cross examined as to her birth date.
20. Thus, evidence as to the birth date is not
challenged during the cross examination.
21. The material evidence is of PW6 Prakash Evnathe
who is serving in Chandrapur Municipal Corporation. His
evidence shows that the date of birth of the victim is
7.3.2007. The name of the victim is mentioned in the
birth register. On the basis of the entry of the birth of the
the victim in General Hospital at Chandrapur, he admitted
that there are different dates of entries of the births as per
…..14/-
Judgment
388 apeal243.23
14
Exhs.45 and 46. Except this cross examination, no
material is brought on record to falsify his version. On
appreciating Exh.45, which is report received from the
hospital, it discloses the names of the parents wherein the
names of the father and mother of the victim are
mentioned. Birth date of the victim is mentioned as
7.3.2007. The birth certificate shows registration number
as 2620 which is also mentioned in report Exh.45. As per
the birth certificate also, the birth place of the victim is
the Government Hospital, Chandrapur. As far as the
submission of learned counsel for the accused is
concerned, that two numbers are mentioned in the
information and, therefore, the birth certificate is
doubtful, he placed reliance on decision of this court in
the case of Pramod Dattatraya Jadhav supra wherein it is
held that in absence of link of the evidence to
demonstrate that said birth certificate relates to female
…..15/-
Judgment
388 apeal243.23
15
victim whose age sought to be proved, such birth
certificate, therefore, would not be of any assistance to
the prosecution.
22. On appreciating the evidence, it reveals that the
evidence of the victim and her father is consistent as to
her birth date as 7.3.2007. Though they are cross
examined, nothing incriminating is brought on record.
Exh.45 is the report forwarded by the hospital as to the
information regarding the birth of the victim which also
shows that birth date of the victim is 7.3.2007 and names
of the parents are mentioned. The said information is
received in the Chandrapur Municipal Corporation on
7.3.2007 itself. The registration number mentioned in
Exh.45 and in the birth certificate Exh.47 is also the same.
The registration date is 27.4.2007. It is vehemently
submitted that the said report does not bear the signature
of any person who informed the said information.
…..16/-
Judgment
388 apeal243.23
16
23. The evidence of PW6 Prakash Evnathe specifically
shows that on the basis of information received, the birth
entry was taken. Merely because the report does not bear
the signature of person who forwarded the information
that by itself is not sufficient to create the doubt about the
said entries in absence of any incriminating material to
show that there was any reason for the parents of the
victim to take false entry. The said entry was taken by the
officials of the Municipal Corporation in view of the
provisions of Sections 12 and 17 of the Registration of
Births and Deaths Act, 1969.
24. As per Rule 9 of the Maharashtra Births and
Deaths Registration Rules 1976, this certificate is issued
by the Sub Registrar acting under the provisions of the
Registration of Births and Deaths Act, 1969.
…..17/-
Judgment
388 apeal243.23
17
25. Section 7 of the said Act thereof deals with
appointment of registration for each local area comprising
the area within the jurisdiction of a municipality,
panchayat or other local authority or any other area or a
combination of any two or more of them. It is duty of
the Registrar to register every birth which took place in
his jurisdiction. This Act mandates that the Registrar
should discharge his duties carefully.
26. Section 8 of the said Act mandates that each head
of the house to report birth in the family to the Registrar.
27. As per provisions of Sections 12 and 17 of the
Registration of Births and Deaths Act, 1969 the birth
certificate as such is issued by the public officer and it is a
document forming record of the acts of the public officer
and, therefore, the same is a public document within the
meaning of Section 74 of the Indian Evidence Act and the
…..18/-
Judgment
388 apeal243.23
18
same is admissible in evidence in view of Section 77 of
the Indian Evidence Act. Section 17 of the said Act
provides for search of Birth Register and supply of extract
thereof by certifying the same by the Registrar or other
authorized Officer. Section 17 of the said Act provides
that such extract shall be admissible in evidence for the
purpose of proving birth or death to which the entry
relates. The birth certificate is in fact the extract of Birth
Register in respect of entry of birth of the victim child and
as such, admissible in evidence. Section 35 of the
Evidence Act makes it clear that if entry is made by public
servant in the official book in discharge of his official
duty, such entry becomes the relevant fact and admissible
in evidence. Section 35 of the Act lays down that entry
in any public, official book, register, record stating a fact
in issue or relevant fact and made by a public servant in
the discharge of his official duty specially enjoined by the
…..19/-
Judgment
388 apeal243.23
19
law of the country is itself the relevant fact. To render a
document admissible under Section 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.
28. It is, thus, clear that the birth certificate issued by
the public officer or by the competent authority under the
provisions of the Registration of Births and Death Act and
the Rules framed thereunder is required. The birth
certificate of the victim girl is issued in compliance with
the above said provisions.
29. Rule 12(3) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 reads thus:
…..20/-
Judgment
388 apeal243.23
20
“Rule 12(3) : In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall be conducted by the
court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining-
(a) i. the date of birth certificate from the s
chool (other than a play school) first
attended; and in the absence whereof;
ii. the birth certificate given by a
corporation or a municipal authority
or a panchayat;
iii. the matriculation or equivalent
certificates, if available;
(b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.
30. The Hon’ble Apex Court in the case of Jarnail
Singh vs. State of Haryana, reported in 2013 ALL MR
(Cri) 2946 observed that even though Rule 12 is strictly
applicable only to determine the age of a child in conflict
…..21/-
Judgment
388 apeal243.23
21
with law, we are of the view that the aforesaid statutory
provision should be the basis for determining age, even
for a child who is a victim of crime. For, in our view, there
is hardly any difference in so far as the issue of minority
is concerned, between a child in conflict with law, and a
child who is a victim of crime. Therefore, in our
considered opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to determine the age of
the prosecutrix. The manner of determining age
conclusively, has been expressed in sub-rule (3) of Rule
12 extracted above. Under the aforesaid provision, the
age of a child is ascertained, by adopting the first
available basis, out of a number of options postulated in
Rule 12(3). If, in the scheme of options under Rule 12(3),
an option is expressed in a preceding clause, it has
overriding effect over an option expressed in a
subsequent clause. The highest rated option available,
…..22/-
Judgment
388 apeal243.23
22
would conclusively determine the age of a minor. In the
scheme of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the highest rated
option. In case, the said certificate is available, no other
evidence can be relied upon. Only in the absence of the
said certificate, Rule 12(3), envisages consideration of
the date of birth entered, in the school first attended by
the child. In case such an entry of date of birth is
available, the date of birth depicted therein is liable to be
treated as final and conclusive, and no other material is
to be relied upon. Only in the absence of such entry, Rule
12(3) postulates reliance on a birth certificate issued by a
corporation or a municipal authority or a panchayat.
31. Thus, the birth certificate issued in the present
case is in compliance with the provisions of the
Registration of Births and Deaths Act and therefore the
evidence is acceptable.
…..23/-
Judgment
388 apeal243.23
23
32. The second ingredient to be proved to prove the
offence of kidnapping is as to the person was taken or
enticed without consent of such guardianship.
33. The evidence of the father of the victim and the
victim is relevant which states that on the date of the
incident, the accused who is brother of the informant,
went to the school of the victim and she was taken on the
pretext that her father met with an accident. The
evidence of the victim shows that on the day of the
incident, she was in her school. Her uncle (the accused)
came to her school for taking her. Her teacher informed
her that the accused had been to school as her father met
with an accident and, therefore, she went along with her
uncle at Padoli. Though she enquired as to whereabouts
of her father, the accused has not disclosed and told her
that her father is admitted at hospital at Nagpur and took
her at Nagpur by bus. From Nagpur, she was taken at
…..24/-
Judgment
388 apeal243.23
24
Railway Station and took her at Nandgaon
(Chhattisgarh). From Nandgaon, she was taken at
Dhamtari at the house of his friend. Though she asked
him to drop her at her house, he took her from Dhamtari
to Gundardehi and kept her in ward No.15 at Chenganj
locality. He kept her in the house of one Sinha and
subjected her for the forceful sexual assault on multiple
occasions. Thereafter, he assured her to drop her at the
house, but he brought her to Durg and asked her to work
in utensil shop and threatened her not to disclose her
identity. In Durg, she resided for 6 months. From Durg,
she was brought at Balod. At Balod, she was kept in the
house of Ravikant. He used to confine her in the house.
In Balod, the accused committed theft in the house of one
teacher and he was arrested in the said crime. During
enquiry with him, his involvement in kidnapping the
…..25/-
Judgment
388 apeal243.23
25
victim was revealed and, therefore, police came there and
she was taken at the police station.
34. The evidence of PW8 the brother of the victim also
discloses that the accused has taken him in school and
dropped him in the school near the gate and he went
inside the school and returned along with the victim and
thereafter he boarded him in auto by holding the hands of
the victim and went towards Chandrapur. His cross
examination also shows that he witnessed the victim
when she came out of the school. He also admitted that
he did not go inside the school from the gate.
35. PW10 Dadara Talvekar and PW11 Chanda
Dandwate are investigating officers. The evidence of
PW10 Dadara Talvekar also shows that he received an
information that the victim is at Balod and, therefore, he
went there and the victim was brought to the police
…..26/-
Judgment
388 apeal243.23
26
station. The history was also narrated by the victim to the
Medical Officer that the accused has taken her.
36. These four witnesses though cross examined,
nothing incriminating is brought on record to shatter their
evidence as far as “taking” or “enticing” is concerned.
“Taking” or “enticing” away a minor out of the keeping of
a lawful guardian is an essential ingredient of the offence
of kidnapping. The evidence on record sufficiently
establishes that the accused solicited the victim to come
along with him on the pretext that her father met with an
accident. The evidence of PW7 Sudha Umare, teacher of
the victim , PW8 brother of the victim, the victim, and the
father of the victim categorically stated about the act of
the accused that he has taken her at various places from
the lawful guardianship of her father. The ingredients of
“taking” or “enticing” are dealt with by the Hon’ble Apex
Court in the case of S.Varadarajan vs. State of Madras,
…..27/-
Judgment
388 apeal243.23
27
reported in reported in 1965 SC 942 wherein it is held
that there is a distinction between “taking” and allowing a
minor to accompany a person. The two expressions are
not synonymous though we would like to guard ourselves
from laying down that in no conceivable circumstance can
the two be regarded as meaning the same thing for the
purposes of Section 361 of the Indian Penal Code. It is
further held that “taking” or “enticing” away a minor is an
essential ingredient of the offence of kidnapping.
37. Thus, the evidence on record sufficiently shows
that the victim was taken by the accused without
knowledge of the parents and thus the prosecution
established the offence under Section 363 of the IPC.
38. Now, let us examine the evidence of the victim and
whether corroboration to the evidence of the victim is
required.
…..28/-
Judgment
388 apeal243.23
28
39. The victim categorically narrated about the
incident that the accused met her teacher and disclosed
that her father met with an accident and took her along
with him. She was taken initially at Padoli. On her
enquiry about her father, he informed that her father is
admitted in hospital at Nagpur and she was brought at
Nagpur. After repeated enquiry by her, he has not
disclosed anything and took her at railway station and
thereafter at Nandgaon in Chhattisgarh by train. He
carried her from Nandgaon to Dhamtari at the house of
his friend. The victim was insisting him to drop her at her
house on which he brought her at Gundardehi and took
her in ward No.15 in Chenganj locality at the house of
one Sinha wherein he subjected her for forceful sexual
assault and, thereafter, on multiple occasions. He again
brought her at Durg and asked her to work in utensil shop
and also threatened her not to disclose her identity else
…..29/-
Judgment
388 apeal243.23
29
he will kill her. She was not having money or other
source. He kept her at Durg about 6 months and,
thereafter, brought her at Balod and Dhamtari wherein
she was kept in the house of one Ravikant. He used to
confine her in that house. He was caught committing
theft in the house of one teacher and he was arrested.
After his arrest, he asked her to go to the house of one
Thakur and, therefore, she was residing at the house of
said Thakur wherein her parents and police approached
and took her back. During her cross examination, it came
on record that her school is at a distance of 10-15
kilometers from her house. Native place of the accused is
Balod. Her father’s place is also Balod. She further
admitted that her elder brother is also residing at Balod.
Her grandfather is staying at about 2 kilometers away
from the house of her elder brother. It specifically came
on record that she did not know the house of her
…..30/-
Judgment
388 apeal243.23
30
grandfather as well as her elder brother. Her cross
examination further shows that when the accused visited
the school, her younger brother was with him. There was
no talk by her with her younger brother. She did not
enquire from her younger brother about the news of the
accident. At the relevant time, her younger brother was
of 10 years. She enquired about her mother to the
accused as well as brother and they both told her that she
is in the hospital. It was further informed to her that her
younger sister is at Balod. As to the incident, it was
brought on record that the police did not seize her
clothes. The police did not ask her to submit her school
books and bag to corroborate that the accused took her
from her school. Her school teacher verified and told her
that the accident had taken place. She further stated that
the accused told her that her father is in another village
and in village Nandgaon she found that her father is not
…..31/-
Judgment
388 apeal243.23
31
admitted there which raised doubt in her mind. She has
made an attempt to inform the passengers that the
accused forcibly taken her to Dhamtari, but she has not
informed the same to the bus conductor and driver. She
also informed a person by name Golu who was friend of
the accused. Her cross examination further shows that
she never saw Mr.Sinha in the house wherein she was
kept by the accused at Gundardehi. There were houses
near the house of said Sinha. Her cross examination also
shows that when she was taken by the accused at
Chhattisgarh, after 15 days, lock-down was imposed and
due to the lock-down, movements were restricted from
the house. She denied the suggestions that some boys
were teasing her in the school and, therefore, she
informed her mother and her mother called the accused
and, therefore, he visited her school.
…..32/-
Judgment
388 apeal243.23
32
40. The evidence of the father of the victim also shows
that the accused who is his brother took the victim and
kept her in Chhattisgarh. His evidence shows that the
accused was arrested in case of theft and during enquiry
with the accused it revealed that the victim is with him at
Chhattisgarh. As already observed, the evidence of PW7
Sudha Umare, teacher of the victim, also shows that the
victim was taken by the accused from the school on the
pretext that her father met with an accident. PW8
brother of the victim also deposed that the accused has
taken the victim along with him.
41. Besides the oral evidence of the victim, the
prosecution placed reliance on the medical evidence and
PW4 Dr.Ananya Dixit was examine vide Exh.33 who
testified that on 15.6.2021 she received requisition for
examination of the victim. The victim has narrated the
history. The hymen of the victim was ruptured. Her over
…..33/-
Judgment
388 apeal243.23
33
all finding was consistent that there was a possibility of
sexual intercourse with the victim. Accordingly, she
issued certificate Exh.37. During cross examination, she
admitted that during history, the victim stated that due to
the physical abuse to her mother by her father, she
wanted to escape from her house. She expressed her
willingness to run away with the brother of her father and
accordingly they eloped from the school. There was a
sexual relationship without her consent from 5.3.2020 for
further six months. She was physically abused and
threatened. She further admitted that if a female
accustomed of mastruabation or by any object, such type
of rupture of hymen can be occurred. Thus, from her
evidence, an attempt is made that she herself joined the
company of the accused and thereafter there was a
physical relationship.
…..34/-
Judgment
388 apeal243.23
34
42. PW5 Sikandar Jabbar Khan, acted as pancha on
seizure, testified that in his presence birth certificate of
the victim was seized. Along with the police and father of
the victim, he had been to Sikripara at the house of
Ravikant Yadav wherein the victim was found. His cross
examination shows that he is not acquainted with the
parents of the victim. Rest of the cross examination is in
denial form.
43. PW9 Bhadu Awale, is another pancha in whose
presence the samples of the victim and the accused were
seized. The seizure panchanamas are at Exhs.54 and 55.
44. PW10 Dadara Talvekar and PW11 Chanda
Dandwate are investigating officers. Their evidence is as
regards the investigation carried out by them.
PW10 Dadarao Talvekar has stated about various
panchanamas he has drawn. His evidence also shows that
…..35/-
Judgment
388 apeal243.23
35
after 15 days of the incident, due to corona, lock-down
was imposed. He also admitted that he could not visit
Balod village of the accused due to restrictions. He
further admitted that due to lock-down, individual could
not go from one place to another. He also admitted that
he read the history given by the victim to Medical Officer.
PW11 Chanda Dandwate, narrated about the
investigation carried out by him. His cross examination
shows that he proved the omissions that the victim has
not stated that whenever she used to go outside, she used
to put lock on the entrance gate of the house. She has
also not stated, while recording her statement, that she
requested the accused to drop her in the house. The
informant has also not stated as to birth date of the
victim.
…..36/-
Judgment
388 apeal243.23
36
Thus, on the basis of this cross examination,
attempt was made to show that material omissions were
there which affect the prosecution case and, therefore, the
evidence of the victim and the entire prosecution case are
to be thrown out.
45. On appreciation of the evidence, the question is,
whether testimony of the victim can be relied upon for
basing conviction.
46. The Hon’ble Apex Court in the case of Radhey
Shyam vs. State of Rajasthan, reported in (2014)5 SCC
389 has laid down the law regarding appreciation of
evidence of child witness. Paragraph No.12 of the said
judgment reads as under:
“12. In Panchhi and ors, National
Commission for Women vs. State of UP and
ors, AIR 1998 SUPREME COURT 2726, after
reiterating the same principles, this Court…..37/-
Judgment
388 apeal243.23
37
observed that the evidence of a child witness
must be evaluated more carefully and with
greater circumspection because a child is
susceptible to be swayed by what others tell
him and, thus, a child witness is an easy pray
to tutoring. This Court further observed that
the courts have held that the evidence of a
child witness must find adequate
corroboration before it is relied upon. But, it
is more a rule of practical wisdom than of
law. It is not necessary to refer to other
judgments cited by learned counsel because
they reiterate the same principles. The
conclusion which can be deduced from the
relevant pronouncements of this Court is that
the evidence of a child witness must be
subjected to close scrutiny to rule out the
possibility of tutoring. It can be relied upon if
the court finds that the child witness has
sufficient intelligence and understanding of
the obligation of an oath. As a matter of
caution, the court must find adequate
corroboration to the child witness’s evidence.
…..38/-
Judgment
388 apeal243.23
38
If found, reliable and truthful and
corroborated by other evidence on record, it
can be accepted without hesitation. We will
scrutinize PW-2 Banwari’s evidence in light of
the above principles.
47. The victim as seen from her evidence appearing to
be the witness on the actual incident. It is not defence of
the accused that she is tutored witness. Even there is no
suggestion that she is tutored witness. As a rule of
prudence, let us find out whether the evidence of the
victim is corroborated by other evidence. Admittedly, at
the time of the incident, the victim was aged about 13
years and her age is proved by the prosecution. The
victim has disclosed the incident to the friend of the
accused. Even, if it is accepted that she went along with
the accused, as per the history narrated by her, her
consent is not relevant as she was below 18 years of age
…..39/-
Judgment
388 apeal243.23
39
at the time of the incident. Whereas, the accused who is
her uncle has attained the age of maturity. Even, if the
evidence of the prosecution is accepted, that she joined
the company of the accused, her evidence as to the sexual
assault by the accused against her consent is consistent.
It is not only corroborated by her father, brother, and
school teacher on the aspect that she was taken by the
accused on a pretext that her father met with an accident,
but also it is corroborated by the medical evidence i.e.
the evidence of PW4 Dr.Ananya Dixit who specifically
stated that history was narrated before her that the victim
was subjected for the sexual assault by the accused
against her consent and continued for 6 months.
Admittedly, she has exaggerated the version as to the fact
that she was taken by the accused at various places.
Generally, oral testimony in this context may be classified
into three categories, namely (1) wholly reliable; (2)
…..40/-
Judgment
388 apeal243.23
40
Wholly unreliable, and (3) Neither wholly reliable nor
wholly unreliable.
In the first category of proof, the court should have
no difficulty in coming to its conclusion either way. It
may convict or may acquit on the testimony of a single
witness, if it is found to be above reproach or suspicion of
interestedness, incompetence or subornation.
In the second category, the court, equally has no
difficulty in coming to its conclusion.
It is in the third category of cases, that the court
has to be circumspect and has to look for corroboration in
material particulars by reliable testimony, direct or
circumstantial.
48. The cross examination of the victim and the
investigation officer shows that the victim has
exaggerated the version that she was taken by the
…..41/-
Judgment
388 apeal243.23
41
accused at various places. The evidence further shows
that there were restrictions on the movements of public
due to covid pandemic, but the evidence that she was
taken by the accused from the school and she was
subjected for sexual assault is not shattered during the
cross examination.
49. It is well settled that the maxim “falsus in uno,
falsus in omnibus” (false in one thing, false in every
thing) is neither a sound rule of law nor a rule of practice.
It is inapplicable to criminal cases in India, as witnesses
may be partly truthful and partly false in their evidence.
Many a time, evidence of any witness shows contents of
untruth or some exaggeration or embellishment. This
many a time happens due to fear in the mind of the
witnesses that their testimony may be rejected. The court
should not disbelieve evidence of such witnesses
altogether if they are otherwise trustworthy.
…..42/-
Judgment
388 apeal243.23
42
Discrepancies in depositions of witnesses are always
there. Discrepancies caused due to normal error of
observation, normally error of memory due to lapse of
time, due to mental disposition, impaired mental faculty,
due to impact or shock caused due to incident needs to be
ignored. It is well settled that the prosecution case would
fail only where inconsistencies in it goes to the root of the
case, otherwise, the court has to sift truth from falsehood
by culling out negate of truth from evidence of witnesses
examined by the prosecution. If such exercise is possible,
their evidence cannot be discarded wholly. At the most
inconsistent part of the version of the witnesses may be
discarded and rest of the testimony is to be accepted.
50. In the light of the above proposition, if the
evidence of the victim is considered, the fact that the
victim was taken by the accused and kept away from
lawful guardianship of her parents and subjected for the
…..43/-
Judgment
388 apeal243.23
43
forceful sexual assault is established by the prosecution.
It is vehemently submitted that there were no injuries on
the person of the victim.
51. It is now well settled that absence of the injuries
on the person of the prosecutrix does not lead to any
inference that the accused has not committed forcible
sexual intercourse on the victim. Absence of mark of
injuries on the person of the victim cannot be adopted as
formula to disbelieve the version of the victim. It will all
depend on the facts and circumstances of each case.
Absence of injuries on the person of the prosecutrix is not
necessarily an evidence of falsity of the allegation or an
evidence of consent on the part of the prosecutrix. The
absence of visible marks of injuries on the person of the
prosecutrix on the date of her medical examination
would not necessarily mean that she had not suffered any
…..44/-
Judgment
388 apeal243.23
44
injuries or that she had offered no resistance at the time
of commission of the crime.
52. In State of Tamil Nadu vs. Ravi @ Nehru, reported
in 2006 (10) SCC 534 the Hon’ble Apex Court ruled that
“rape” is crime and not a medical condition. “Rape” is a
legal term and not a diagnosis to be made by the medical
officer treating the victim. The only statement that can be
made by the medical officer is that there is evidence of
recent sexual activity. Whether the “rape” has occurred
or not is a legal conclusion, not a medical one. That is
the reason why, even the opinion of the doctor that there
was no evidence of sexual intercourse or rape is at times
held to be not sufficient to disbelieve the accusation of
the rape by victim.
53. In the light of the above discussion, in the present
case, allegations made by the victim are against her
…..45/-
Judgment
388 apeal243.23
45
uncle. There is no reason for false implication. Though it
was suggested that the victim herself went along with the
accused, the evidence is contrary which shows that it was
the accused who has taken the victim on the pretext that
her father met with an accident. The said fact is
corroborated by PW7 Sudha Umare, teacher of the victim
at the relevant time, with whose permission the accused
has taken the victim. There is no other reason brought on
record showing any motive for the victim or her parents
to implicate the accused.
54. Though learned counsel for the accused placed
reliance on the decisions in the cases of Pramod
Dattatraya Jadhav vs. The State of Maharashtra supra
and Ravi Anandrao Gurpude vs. State of Maharashtra
supra, as the facts are not identical, the same decisions
are not helpful to the defence.
…..46/-
Judgment
388 apeal243.23
46
55. The another ground raised by learned counsel for
the accused is that the statement of the accused under
Section 313 of the CrPC is not recorded in his language.
56. Admittedly, on recording the statement of the
accused, the accused has not raised grievance that any
prejudice is caused to him as to the recording of
statement and he is not acquainted with Marathi
language.
57. It is well settled that It is ideal and proper and
always desirable to prepare the questions to be put to the
accused in a language in which the accused is well versed.
58. Here, in the present case, the accused hails from
Maharashtra. He never made a grievance that he is
unable to understand the Marathi language. What is
essential is that the accused shall clearly understand the
questions put to him so that he could give proper
…..47/-
Judgment
388 apeal243.23
47
answers. The presiding officer has certified at the bottom
of the record of examination that questions were asked
and explained in language Marathi to the accused and he
understood those question and in his presence its answers
were written as per his say. Thereafter, the accused has
signed on it. The very purpose of introducing Section 313
of the CrPC in the Scheme of criminal trial is to afford an
opportunity to the accused personally and that too
without administering any oath to explain circumstances
appearing against him/her during the trial. The
questioning need not be confined to alone, since the law
states the words any circumstance. Thus, incriminating
circumstance is to be put to the accused.
59. Learned counsel for the accused placed reliance on
the decision in the case decision of Surjit Biswas vs. State
of Assam supra wherein also it is held that the purpose of
examining the accused person under Section 313 of the
…..48/-
Judgment
388 apeal243.23
48
CrPC, is to meet the requirement of the principles of
natural justice. This means that the accused may be asked
to furnish some explanation as regards the incriminating
circumstances associated with him.
60. Learned Additional Public Prosecutor for the State
placed reliance on the decision in the case of Shobhit
Chamar and anr vs. State of Bihar, reported in AIR 1998
SC 1693 wherein the Hon’ble Apex Court held that The
examination by the Sessions Judge of the appellants was
perfunctory. Every error or omission in complying with
Section 342 does not vitiate the trial. It is further held
that the challenge to the conviction based on non
compliance of Section 313 of the Cr.P.C. first time in this
appeal cannot be entertained unless the appellants
demonstrate that the prejudice has been caused to them.
…..49/-
Judgment
388 apeal243.23
49
61. In the present case, as mentioned earlier, the
incriminating evidence is put and explained to the
accused to which he answered and not made grievance
that any prejudice has been caused to him and, therefore,
the ground raised by the accused is not sustainable.
62. The defence has not disputed the fact that the
victim was along with the accused. Only defence taken is
that she herself went along with the accused. Admittedly,
history was given by her to the Medical Officer that she
went along with the accused. But, she specifically stated
during history also that she was subjected for the sexual
assault by the accused against her consent. At the
relevant time, the victim was only 13 years of age. Her
consent admittedly was not relevant. On multiple
occasions, she was subjected for the sexual assault.
Nothing is on record to show that the victim has any
ulterior motive to implicate the accused in the false case.
…..50/-
Judgment
388 apeal243.23
50
The accused who is in authoritative position being uncle
of the victim was under obligation to protect the victim.
However, he betrayed the trust of the victim and
subjected her for forceful sexual assault. The basic
principles of criminal jurisprudence is that the
prosecution must establish the guilt of the accused by
cogent and reliable evidence and burden always rests on
the prosecution to prove guilt beyond all reasonable
doubts. The same principles is applicable to the cases of
sexual offences against persons of tender age. After
applying all tests, nothing is on record to show that there
was any ulterior motive to implicate the accused falsely.
The evidence of the victim is inspiring confidence and
also corroborated by other evidence.
63. After re-appreciating the entire evidence, it reveals
that the victim who is real niece of the accused was
subjected for sexual assault by him. He has betrayed the
…..51/-
Judgment
388 apeal243.23
51
trust of the small child. Learned Judge of the trial court
has appreciated all these aspects and considering the
evidence on record rightly convicted the accused.
64. In the light of the foregoing discussion, no infirmity
can be found in the judgment impugned in the appeal.
65. In view of the amendment by Act of 22 of 2018
w.e.f. 21.4.2018 in Sub-section (3) of Section 376(2) of
the IPC, it shall not be less than 20 years if the victim is
below 16 years of age, but which may extend to
imprisonment for life which shall mean imprisonment of
the remainder of that person natural life and shall also be
liable to fine.
66. In view of the above, the appeal being devoid of
merits is liable to be dismissed and the same is dismissed.
67. Fees of learned counsel Shri S.S.Das appointed for
the accused and learned counsel Ms.Apurva Kolhe
…..52/-
Judgment
388 apeal243.23
52
appointed for the victim be quantified and the same be
paid to them as per rules.
Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 16/04/2025 10:52:09