Bombay High Court
Markand Haribhau Ukre vs The State Of Mah. Thr. Pso Ps Pauni ... on 6 May, 2026
2026:BHC-NAG:6987-DB
1 apeal 261.23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 261 OF 2023
Markand Haribhau Ukre,
Aged 55 years, Occ. - Labour,
R/o Khairi (Diwan), Post - Asagaon,
Tahsil - Pauni, District Bhandara. .... APPELLANT
VERSUS
1) The State of Maharashtra,
through Police Station Officer,
Police Station, Pauni, Tahsil - Pauni &
District Bhandara.
2) X.Y.Z. (Victim), Crime No. 65/2019,
PSO, PS Pauni, District Bhandara. .... RESPONDENTS
____________________________________________________________________
Mr. Shyam R. Jaiswal, Counsel (appointed) for the petitioner,
Mr. M.J. Khan, Addl.P.P. for respondent No. 1,
Ms. Ayushi Dangre, Counsel (appointed) for respondent No. 2.
____________________________________________________________________
CORAM : URMILA JOSHI-PHALKE & NIVEDITA P. MEHTA, JJ.
DATE OF RESERVING THE JUDGMENT : 29-04-2026
DATE OF PRONOUNCING THE JUDGMENT : 06-05-2026
JUDGMENT :(PER : NIVEDITA P. MEHTA, J.) The present appeal is directed against the Judgment and Order of conviction dated 14.11.2022, passed by the learned Sessions Judge, Bhandara, in Special Case (POCSO) No. 34 of 2019, whereby the appellant, Markand Haribhau Ukre, was convicted for offences punishable under 2 apeal 261.23.odt Sections 376AB and 376(2)(j)(n) of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') as also under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act'), and was sentenced to suffer Rigorous Imprisonment for Life, meaning imprisonment for the remainder of his natural life, along with a fine of Rs. 25,000/- under each count, and in default to suffer Simple Imprisonment for two years. It is directed that both sentences shall run concurrently.
2. The prosecution case, in brief, is summarised as follows:
2.1 The appellant, Markand Haribhau Ukre, is a resident of village Khairi (Diwan), Tahsil Pauni, District Bhandara. The two victim girls, PW1(born 29.07.2010) and PW2 (born 24.04.2013) also reside in the same village. Their parents (PW3 and her husband) are daily wage agricultural labourers who would leave home early in the morning and return only in the evening.
2.2 According to the prosecution, during the period from 01.03.2019 to 10.03.2019, the appellant repeatedly sexually assaulted both victim girls at multiple locations; the Vitthal Rukhmini Mandir in the village, an agricultural field belonging to one Mahadeo Tighare, and inside the victims' own house. The appellant would entice the girls by offering them money (Rs. 1/- at a time), take them on his bicycle to secluded places, and commit the acts of penetrative sexual assault. He also threatened the girls by saying, in regional language, that he would kill them if they disclosed the incidents to anyone.
3 apeal 261.23.odt 2.3 On 09.03.2019, the neighbour PW4, Mamta Bandu Wadibhasme noticed PW2 running behind the bicycle of the appellant as he proceeded towards the Mandir and grew suspicious. When she casually questioned, PW2 disclosed that the appellant was paying her money, taking her to the temple and field, and committing sexual intercourse with her. PW4, troubled by this disclosure, informed her friend PW5-Arti Suresh Sonkusre alias Nimje, a teacher at the Zilla Parishad Primary School, Khairi Diwan. PW5 suggested informing the girls' mother, but PW4 advised first verifying the account from the children themselves.
2.4 On 11.03.2019, PW5 called both victim girls to her residence and, after putting them at ease, separately questioned them. PW2 narrated that the appellant would take her to the field, remove his and her pants, and perform sexual intercourse. PW1 similarly disclosed that the appellant was committing the same acts with her inside the Mandir. Thereafter, PW4 and PW5 together visited the house of PW3, where, in their presence, PW3 questioned her daughters, who repeated the same disclosures. PW1 additionally stated that even the previous day (10.03.2019), at approximately 12:30 p.m., while her father was asleep inside the house and she was in the front room watching television, the appellant had committed the same act with her on the sofa in the front room. She stated that despite her raising shouts, her father could not hear her. This version finds corroboration from PW4, who has stated that she saw the appellant sitting inside the house while the father was sleeping on the floor. It has also come on record through PW3, 4 apeal 261.23.odt and is consistently stated by PW4, PW5 and PW8, that the father of the victim girls is mentally slow and of diminished intellectual capacity. Both girls also complained of pain and inflammation in their private parts. 2.5 PW3 was initially reluctant to lodge a police complaint fearing social stigma and defamation of her daughters. She first went to the appellant's house, whereupon the appellant tendered an apology. However, when the condition of the children worsened and PW6, Sarpanch Smt. Sushma Suraj Tembhare and PW8, Anganwadi teacher Kunda Manohar Dhabekar counselled PW3 and gave her courage, she lodged a written complaint (Exh. 31) with the Police Station, Pauni on 16.03.2019. A First Information Report (Exh. 32) was registered as Crime No. 65/2019 under Sections 376AB and 376(2)(j)(n) of the IPC and Sections 4 and 6 of the POCSO Act.
2.6 During the course of investigation, PW10, API Sudhir Shivnath Varma visited the spot, prepared a running spot panchnama (Exh. 53) at all three locations shown by the victim girls, arrested the appellant under arrest panchnama (Exh. 12), and sent the victim girls as well as the appellant for medical examination. He also arranged for the recording of statements of the victim girls before the learned J.M.F.C., Pauni, and obtained birth certificates of both victim girls from the concerned Gram Panchayats. The seized articles were sent for chemical analysis to the Regional Forensic Science Laboratory, Nagpur. After completion of the investigation, charge-sheet was filed. On 09.12.2019, the learned Predecessor Special Judge, Bhandara, framed a Charge (Exh. 06) against the appellant under Sections 376AB and 376(2)(j) 5 apeal 261.23.odt
(n) of the IPC and under Section 6 read with Section 5(i)(l)(m)(p)(u) of the POCSO Act.
2.7 When the charge was read over and explained to the appellant in vernacular, he denied the same, pleaded not guilty, and claimed to be tried. He claimed that the complaint was falsely lodged against him because the daughters of PW3 had accidentally knocked over his bicycle, on account of which he had scolded them. He alleged that, out of vengeance, PW3 falsely implicated him in this serious crime. He neither examined himself on oath as a witness nor adduced any defence evidence. To bring home the charge, the prosecution examined twelve witnesses in all.
3. The learned Sessions Judge, Bhandara, after meticulously examining the entire evidence on record, convicted the appellant by a judgment dated 14.11.2022. On the issue of age, the trial Court held that the birth certificates (Exh. 60 & 61) clearly established that both victim girls were below the age of twelve years at the time of the incidents, and this was not seriously disputed by the defence. On the substantive charge, the trial Court relied extensively on the testimony of the victim girls, PW1 and PW2, corroborated by PW3, PW4, PW5, PW6, PW8 and the medical evidence of PW9. The court rejected the defence contention that the delay of about six days between the last alleged incident (10.03.2019) and the registration of the FIR (16.03.2019) was fatal to the prosecution case, noting the well- recognised phenomenon of hesitation in reporting sexual offences against children due to social stigma and fear of defamation. The trial Court further 6 apeal 261.23.odt held that the appellant had failed to rebut the presumptions raised under Sections 29 and 30 of the POCSO Act, and that his defence of false implication was wholly improbable and unsupported by any independent evidence. Consequently, the appellant was convicted as aforesaid and sentenced to life imprisonment (meaning remainder of natural life) along with fine.
4. Submissions on behalf of the Appellant :
4.1 Shri S. Jaiswal, learned counsel (appointed) for the appellant submitted that the impugned judgment and order dated 14.11.2022 is wholly unsustainable in law. He contended that the learned trial Court has failed to appreciate the evidence on record in its proper perspective and has recorded findings, which are perverse and contrary to the settled principles governing criminal jurisprudence.
4.2 He further submitted that the conviction of the appellant is based solely on the testimonies of the prosecutrixes, which suffer from material inconsistencies, omissions and improvements. The learned counsel submits that the evidence of the child witnesses is not of such sterling quality so as to inspire confidence and form the sole basis of conviction, particularly in a case involving grave charges entailing life imprisonment. 4.3 The learned counsel further submits that there is an unexplained and inordinate delay in lodging the First Information Report. Though the alleged last incident is stated to have occurred on 10.03.2019, 7 apeal 261.23.odt the complaint came to be lodged only on 16.03.2019. It was contented that the FIR (Exh. 32) and the complaint (Exh. 31) appear to have been lodged as an afterthought, after the false concoction of a story, and cannot be relied upon.
4.4 He also contended that the prosecution has failed to establish its case beyond reasonable doubt inasmuch as there is no cogent and convincing corroborative evidence on record. The medical and scientific evidence does not conclusively support the prosecution story, submitted that hymenal tears are possible due to other causes such as infections and sports activities, and therefore cannot be taken as conclusive proof of sexual assault. 4.5 The learned counsel further submits that the prosecution witnesses, including the mother of the victims, have made material improvements in their depositions, which go to the root of the matter. It is urged that the evidence appears to be tutored and lacks spontaneity, thereby rendering it unsafe to base a conviction of such serious nature. 4.6 He also argued that the learned trial Court has failed to consider that certain material witnesses, such as husband of PW3, who could have thrown light on the prosecution case, have not been examined. Such non-examination has caused serious prejudice to the appellant and creates a gap in the chain of evidence.
8 apeal 261.23.odt 4.7 The learned Counsel laid emphasis on the fact that the father of victims was not examined by the prosecution who was allegedly present in the house at the time of alleged incident as per the testimony of PW1. 4.8 The learned counsel submits that the findings recorded by the learned trial Court are based on conjectures and surmises rather than on legally admissible and reliable evidence. It is contended that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt, and therefore, the appellant is entitled to the benefit of doubt. 4.9 On these grounds, the learned counsel for the appellant prays that the present appeal be allowed, the impugned judgment and order of conviction be quashed and set aside, and the appellant be acquitted of all the charges.
5. Submissions on behalf of the State :
5.1 Mr. M. J. Khan, learned Additional Public Prosecutor for respondent No. 1 / State, vehemently opposed the appeal and supported the impugned judgment and order of conviction and submitted that the learned trial Court has properly appreciated the evidence on record and has rightly convicted the appellant for the offences in question. He contended that the findings recorded by the learned Sessions Judge are based on cogent, reliable and legally admissible evidence and do not warrant any interference in the present appeal.
5.2 The learned Addl.P.P. submitted that the prosecution case is primarily founded on the consistent and trustworthy testimonies of the minor 9 apeal 261.23.odt victims. It is urged that in cases of sexual assault, particularly involving children, the testimonies of the victim girls, if found reliable and credible, are sufficient to base conviction even in the absence of corroboration. Minor discrepancies arising from the tender age of the witnesses are inconsequential and do not affect the core of the prosecution case.
5.3 He further submitted that the alleged delay in lodging the First Information Report is neither fatal nor unexplained. The learned Addl.P.P. contends that in cases of sexual offences, especially involving minor children, some delay in reporting is natural owing to social stigma, trauma and hesitation on the part of the victim and her family. Such delay, by itself, cannot be a ground to discard the otherwise reliable prosecution case. In support of his contentions, he relied upon the following cases:
(i) Lok Mal Alias Loku vs State of Uttar Pradesh, (2025) 4 SCC 470,
(ii) Sirivalla Srinivasa Rao vs State of A.P., AIROnline 2011 SC 536,
(iii) State of Himachal Pradesh vs Prem Singh, (2009) 1 SCC 420.
5.4 The learned Addl.P.P. also submits that the medical and other supporting evidence on record lends assurance to the prosecution version. He contended that the absence of strong medical corroboration is not decisive in cases of sexual assault, particularly when the ocular testimony of the victim is clear and convincing.
10 apeal 261.23.odt 5.5 As regards non-examination of father of victims is concerned, the learned Additional Public Prosecutor submits that the testimonies of crucial witnesses unequivocally demonstrate the diminished intellectual capacity of the father of the victims and as such his non-examination is in no way fatal to the prosecution case.
5.6 He further urged that no material contradictions or omissions have been elicited in the cross-examination of the prosecution witnesses so as to discredit their testimonies. The defence has failed to bring on record any circumstance to show false implication of the appellant. On the contrary, the evidence establishes the guilt of the appellant beyond reasonable doubt. 5.7 The learned Addl.P.P. submits that the learned trial Court has meticulously analyzed the entire evidence and has recorded well-reasoned findings. The view taken by the learned trial Court is a plausible and reasonable view based on the material on record, and therefore, this Court, in exercise of appellate jurisdiction, ought not to interfere with the same. 5.8 On these grounds, the learned Addl.P.P. prays that the appeal being devoid of merits deserves to be dismissed and the conviction and sentence imposed upon the appellant be confirmed.
6. Ms. Ayushi Dangre, learned counsel appointed for respondent No. 2, adopted the submissions advanced by the learned Addl.P.P. for the State. She further submitted that the testimonies of the minor victims, being natural, consistent and trustworthy, are sufficient to sustain conviction even 11 apeal 261.23.odt in the absence of independent corroboration. In support of her submissions, she placed reliance on the decision of the Hon'ble Supreme Court in State of Himachal Pradesh vs. Sanjay Kumar alias Sunny, (2017) 2 SCC 51 .
7. Before proceeding to analyse the rival submissions and arrive at a conclusion, it is incumbent upon this Court to first evaluate the testimonies of the prosecution witnesses.
8. PW1 (Victim-C): The elder victim girl deposed in camera that the appellant, a resident of her village whom she knew, would take her to the Vitthal Mandir on the pretext of giving money and would commit sexual intercourse with her. She further stated that on 10.03.2019 at about 12:30 p.m., while her father was sleeping inside the house and she was watching television in the front room, the appellant again came, sat on the sofa beside her, removed his and her clothes, asked her to hold his private part, and committed rape on her. She stated that she had cried out but her father, who is of slow intellect, could not hear. The appellant threatened her with death if she told anyone. She deposed that the same acts were committed by the appellant some 15 times at home and 2 times at the Mandir. She corroborated PW5's account of the inquiry at her house. In cross-examination, she firmly denied all the defence suggestions.
9. PW2 (Victim-M): The younger victim girl (recorded without oath, given her age of about 5 years at the time of recording of evidence) deposed that the appellant took her to the temple and field, removed her and 12 apeal 261.23.odt his pants, asked her to move his private part, and then inserted his private part into hers causing her pain and bleeding. She stated that the incident occurred twice. In cross-examination, she maintained her version and categorically denied all contrary suggestions.
10. PW3 Mother and Complainant deposed about the information received from PW5 on 11.03.2019, the confrontation with the appellant, who apologized, her initial reluctance to report due to fear of social stigma, and the eventual filing of the complaint after being encouraged by PW6 and PW8. She also deposed that her daughters disclosed the incidents to her in the presence of PW4 and PW5, and that both girls had complained of pain in their private parts. She identified the complaint (Exh. 31), the FIR (Exh. 32), and the consent form (Exh. 33). In her cross examination, she stated that her husband (father of the victims) is mentally slow.
11. PW4 Mamta Bandu Wadibhasme, Neighbour was the first adult to whom PW2 disclosed the acts. She corroborated the disclosure made by PW2 on 09.03.2019, the process of verification via PW5, and the subsequent visit to PW3's house on 11.03.2019. She also corroborated the incident of 10.03.2019 at the victims' house, having observed the appellant sitting inside on the sofa while the father was sleeping. She deposed that the father of the victim girls is mentally slow.
12. PW5 Arti Suresh Sonkusre (Nimje), Teacher, corroborated PW4's account in material detail. She described how she called the victim 13 apeal 261.23.odt girls to her house on 11.03.2019, individually questioned them, and received disclosures about the sexual assaults. She further corroborated the visit to PW3's house in the evening of 11.03.2019, where the girls repeated their disclosures to their mother. She also stated that she subsequently mobilized the Sarpanch and the Anganwadi teacher, who accompanied PW3 to the police station on 16.03.2019. She further stated that the father of the victims is mentally slow.
13. PW6 Sushma Suraj Tembhare, Sarpanch of Village, was called to the Anganwadi by PW8 on 16.03.2019. She corroborated the disclosure made by both victim girls in her presence that the appellant was sexually assaulting them and that on 10.03.2019 he had done the same inside their house. She accompanied PW3 to the police station for lodging the complaint.
14. PW7 Dr. Amit Vijaykumar Jaiswal, Medical Officer, Rural Hospital Pauni examined the appellant on 19.03.2019 on requisition (Exh.
40) of the police. He deposed that the appellant had no abnormality and was capable of performing sexual intercourse; no definite opinion on actual sexual assault on his part could be given. His examination certificate is at Exh. 41.
15. PW8 Kunda Manohar Dhabekar, Anganwadi Teacher, deposed that she noticed PW2 crying in the Anganwadi on 11.03.2019 and 13.03.2019. On 14.03.2019, after taking the child into confidence, she learnt that the child was afraid of the appellant and that he had been taking her on 14 apeal 261.23.odt a cycle to the Mandir and field and committing sexual acts. She then informed the child's mother and subsequently participated in mobilizing the community to assist PW3 in lodging a complaint. She also deposed that the father of the victim is mentally slow.
16. PW9 Dr. Priya Nitin Mukkawar, Gynaecologist, General Hospital Bhandara examined both victim girls on 16.03.2019 on requisition of the Investigating Officer (Exh. 54 & 55). She deposed that PW1 had a hymenal tear at the 1 O'clock position (Exh. 44), which was possible as a result of penetrative sexual assault. She further deposed that PW2 had hymenal tears at the 5 and 11 O'clock positions (Exh. 45), also consistent with penetrative sexual assault. Critically, she opined that for a child of 5 years (PW2), hymenal tear is not possible merely from sports activities such as ' Lagori'; the only possibilities are insertion of an external object or a severe accidental penetrating injury. Both girls complained of painful urination since the time of the last incident.
17. PW10 API Sudhir Shivnath Varma, Investigating Officer, deposed about the entire course of investigation; visiting the spots shown by the victims, preparing the running spot panchnama (Exh. 53), arresting the appellant, sending the victim girls and the appellant for medical examination, seizing the clothes of the victims and the appellant (Exh. 47-51), sending seized articles for chemical analysis (Exh. 56), arranging for the recording of statements under Section 164 Cr.P.C. (Exh. 58), and securing birth certificates of the victim girls (Exh. 60 & 61).
15 apeal 261.23.odt
18. PW11 Rahul Gunwant Katekhaye, Panch Witness corroborated the spot panchnama (Exh. 53) in its entirety, having been present throughout the panchnama exercise at the Mandir, the victims' house, and the agricultural field. He stated that photographs Article P-1 to P-5 were taken while preparing the spot panchnama and he is visible in them.
19. PW12 API Smita Dhanraj Wasnik recorded the statements of both victim girls at Khairi Diwan on 24.03.2019 and deposed that the videography recording of the statements was also done. In cross-examination, she maintained that the statements were recorded faithfully as per the say of the victims and were not influenced by any other person.
20. Heard learned counsel for the respective parties at length and perused the material on record.
21. The prosecution has placed on record the birth certificate of PW1 (Exh. 60) issued by the Gram-Panchayat, Khairi Diwan, and the birth certificate of PW2 (Exh. 61) issued by the Gram-Panchayat, Kondha. These documents, issued by official public bodies in the ordinary course of business, establish beyond any shadow of doubt that PW1 was born on 29.07.2010 (aged approximately 8 years at the time of the incident) and PW2 was born on 24.04.2013 (aged approximately 5 years at the time of the incident). Both were, therefore, children below twelve years of age within the meaning of Section 376AB IPC and the POCSO Act. This fact was never seriously 16 apeal 261.23.odt contested by the defence at trial and was not assailed in the course of the arguments before this Court.
22. The case of the prosecution primarily rests on the testimonies of the prosecutrixes. It is a settled position of law that the evidence of a victim of sexual assault stands on a higher pedestal and if such evidence is found to be reliable and trustworthy, it does not require corroboration as a matter of rule.
23. The prosecutrixes, examined as PW1 and PW2, have in their substantive evidence clearly stated that the appellant used to take them to a secluded place on the pretext of offering money and thereafter subjected them to sexual assault. One of the victims has specifically deposed that on one occasion when her mother was not home and the father, who is mentally slow was sleeping inside the house and while she was watching television, the appellant committed forcible sexual intercourse with her. The depositions of both the victims are consistent on the core aspect, namely, the identity of the appellant and the nature of acts committed by him. Their testimonies inspire confidence and there is no reason to discard the same, on any other count.
24. It is true that certain omissions and minor inconsistencies have been brought on record during cross-examination; however, those do not affect the substratum of the prosecution case. Having regard to the tender age of the victims, some variations in narration are but natural and do not render their evidence unreliable. On the contrary, the absence of artificial 17 apeal 261.23.odt uniformity lends assurance to the truthfulness of their version. In Jagannath Pandurang Waghare vs. The State of Maharashtra and another, Criminal Appeal No. 1134 of 2022 , this Court has observed that minor omissions or discrepancies which do not go to the root of the matter, cannot be treated as material so as to discard the otherwise reliable testimony of the victim. It has been further held that minor contradictions, inconsistencies or improvements on trivial aspects, without affecting the core of the prosecution case, are liable to be ignored and cannot be made a ground to reject the evidence in its entirety. The relevant paragraph No. 33 of the said judgment has been reproduced as under:-
"33. Much emphasis was placed on behalf of the appellant on such apparent omissions and failure to disclose on the part of the victim (PW1). We have carefully considered the entire evidence of the victim (PW1). We do find that there are certain minor omissions in the evidence of the said witness. But, such omissions certainly do not qualify to be material omissions or discrepancies. In the case of Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra (supra), the Supreme Court has recognized that minor contradictions, inconsistencies, embellishments or improvements on trivial matters, without affecting the core of the prosecution case, should not be made a ground to reject the evidence in its entirety. It was vehemently submitted on behalf of the appellant that since the act of removal of clothes and actual act of penetration was not disclosed by the victim (PW1) in her statement in the said hospital, on the basis of which FIR was registered, this ought to be treated as a major omission and that her evidence ought to be discarded."
25. It is trite law that a conviction for the offence of rape can be sustained on the sole testimony of the prosecutrix, provided her evidence inspires confidence and is found to be natural and trustworthy. In Birka Shiva vs. The State of Telangana, Criminal Appeal arising out of SLP (Crl.) No. 1445 of 2025, the Hon'ble Supreme Court has reiterated that where the 18 apeal 261.23.odt testimony of the victim is consistent and credible, it can form the sole basis of conviction; however, if the version is inherently inconsistent or improbable, the Court may require corroboration. In the present case, on careful scrutiny of the evidence of the victims, this Court finds that their testimonies are consistent on material particulars, natural in narration, and free from any material contradictions which would discredit the core of the prosecution case. The relevant paragraph no. 18 of the said judgment has been reproduced as under:
"18. The prosecution has sought conviction of the appellant under Section 376 IPC, asserting that he had committed forcible sexual intercourse with the victim. It is trite law that a conviction for rape can be sustained solely on the testimony of the prosecutrix/victim, provided that her evidence inspires confidence in the mind of the Court and appears to be natural and truthful. However, if the version given by the prosecutrix is inconsistent, unsupported by any medical evidence, or the whole surrounding circumstances are highly improbable and believable in the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix. [See: State of Punjab v. Gurmit Singh; Vimal Suresh Kamble v.
Chaluverapinake Apal S.P. ; Sadashiv Ramrao Hadbe v. State of Maharashtra; Tameezuddin v. State (NCT of Delhi); Narender Kumar v. State (NCT of Delhi); and Mukesh v. State (NCT of Delhi)]"
26. The defence also suggested that PW1 was tutored by PW5 and PW3 to use specific vernacular words to describe the assault and to add embellishments to make the accusation more grave. This suggestion is devoid of merit. The disclosure to PW4 occurred first, in a casual setting, when PW4 merely noticed a suspicious pattern of PW-2 following the appellant's bicycle. The child PW2 spoke up voluntarily and unprompted. The subsequent 19 apeal 261.23.odt verification by PW5 was a responsible adult act by a teacher who, upon hearing a disturbing account, sought to ascertain the truth before alarming parents. It is inconceivable that a teacher and a neighbour, acting within hours of each other and independently, would coach two children, one aged 8 and one aged 5, to give consistent accounts of penetrative sexual assault at specific locations, using specific vocabulary, against a specific named adult. The suggestion of coaching is a flight of conjecture.
27. The evidence of PW3, who is the mother of the victims, assumes importance. She has deposed that the incident came to her knowledge when the school teacher informed her about the disclosure made by the children. Upon inquiry, the victims narrated the acts committed by the appellant. She has further deposed about confronting the appellant, who admitted his mistake and sought pardon. This part of the evidence lends significant corroboration to the version of the victims and also establishes the conduct of the appellant.
28. The prosecution has also examined independent witnesses including PW5 and PW6, who have supported the case to the extent of circumstances surrounding the disclosure and conduct of the victims. Their evidence, though not direct on the act of assault, lends assurance to the prosecution story.
29. Insofar as the submission regarding non-mention of specific dates and times of each incident in the statements recorded under Section 20 apeal 261.23.odt 164 of the Code of Criminal Procedure is concerned, the same does not impress this Court. The victims in the present case are minor children of tender age. It would be wholly unrealistic to expect that children of such age would maintain a mental record of each incident with precision of date and time, particularly when the acts complained of are repetitive and traumatic in nature. The law does not require a child victim to chronologically particularise each act. What is material is the consistent disclosure of a course of conduct constituting sexual assault. The Hon'ble Supreme Court has time and again held that in cases of repeated sexual assault, the victim is not expected to specify each individual act with exactitude. In the present case, the substratum of the prosecution case remains intact and unaffected.
30. Insofar as the medical evidence is concerned, the same has been proved through the deposition of PW9, who is a Gynaecologist and had examined both the victim girls at the General Hospital, Bhandara, on 16.03.2019 pursuant to requisition by the Investigating Officer. The evidence of PW-9, being that of a specialist in the relevant field, deserves due weight.
31. PW9 has deposed that on examination of the elder victim, a hymenal tear was noticed at the 1 O'clock position. She has opined that such a finding is consistent with penetrative sexual assault. Though she has not ruled out every remote possibility in absolute terms, her evidence clearly indicates that the nature of injury is compatible with the prosecution case.
21 apeal 261.23.odt
32. In respect of the younger victim, PW9 has noticed hymenal tears at the 5 and 11 O'clock positions. She has categorically stated that such findings are consistent with penetrative sexual assault. Significantly, she has further clarified that in the case of a child of about five years of age, such injuries are ordinarily attributable either to insertion of an external object or to a severe penetrating injury. The suggestion put forth on behalf of the defence that such injuries could occur during routine play activities, such as 'Lagori', has been specifically denied by the medical expert.
33. The attempt on the part of the defence to dilute the evidentiary value of the medical evidence by pointing out the absence of injuries on the external genitalia also does not merit acceptance. The Chemical Analyser's Reports do not detect spermatozoa on the seized articles; however, this by itself is not decisive. The incidents are alleged to have occurred over a span of time and there may be various reasons, including absence of ejaculation or lack of preservation of traces, for such a finding. Similarly, the absence of visible injuries on the external genitalia cannot be construed as negating the allegation of penetrative assault. Nay, that by itself cannot negate the prosecution case. The medical evidence, read as a whole, indicates that penetration without external injuries is medically possible, particularly in cases of repeated assault. PW9 has, in her cross-examination, clarified these aspects and her testimony on this point remains unshaken.
22 apeal 261.23.odt
34. Insofar as the medical and other corroborative evidence is concerned, it is to be noted that absence of definitive medical evidence is not fatal when the ocular testimony of the victim is clear, cogent and trustworthy. The medical evidence on record, though not conclusive by itself, does not contradict the prosecution case and, to some extent, lends support to the version of the victims. Thus, the medical evidence not only does not contradict the prosecution case, but in fact lends assurance to the version of the victims and corroborates the allegation of penetrative sexual assault.
35. The contention raised on behalf of the appellant regarding delay in lodging the First Information Report also does not merit acceptance. In cases involving sexual offences against minor children, delay in reporting is not uncommon and is often attributable to trauma, fear, social stigma, and hesitation on the part of family members. A delay in lodging the FIR in cases of rape and sexual assault does not per se make the prosecution case suspect; what matters is whether the delay is explained. Here, the explanation is not only consistent and coherent, but is corroborated by PW4, PW5, PW6, and PW8, witnesses who have no motive to lie. In the present case, the explanation that the incident came to light upon disclosure by the children and was thereafter reported cannot be said to be unnatural or improbable. In this context, we find merit in the submissions advanced by the learned Addl.P.P. as well as the learned counsel for respondent No. 2, who have placed reliance on Lok Mal alias Loku (supra), Sirivalla Srinivasa Rao (supra), Prem Singh (supra), and Sanjay Kumar alias Sunny (supra) to contend that delay in reporting sexual offences, particularly involving minor victims, is not fatal 23 apeal 261.23.odt if the explanation is plausible. We are in respectful agreement with the said position of law. The delay, therefore, does not dent the prosecution case.
36. The learned counsel for the appellant has also contended that the father of the victims, who was allegedly present at the relevant time, has not been examined and, therefore, an adverse inference ought to be drawn against the prosecution. This submission also cannot be accepted. The evidence on record, particularly that of PW3 and the surrounding circumstances, indicates that the father was not a witness capable of giving reliable testimony. It is a settled principle of law that the prosecution is not bound to examine each and every witness cited, and non-examination of a witness is not fatal unless it results in suppression of material evidence. In Guru Dutt Pathak vs. State of U.P., (2021) 6 SCC 116 , the Hon'ble Supreme Court has reiterated that mere non-examination of independent or other witnesses would not be fatal to the prosecution case when there is otherwise reliable and cogent evidence on record. In the present case, the non- examination of the father does not create any dent in the prosecution case, particularly when the evidence of the victims is found to be cogent and reliable. The relevant paragraph no. 24 are reproduced as under:
"24. One another ground given by the learned trial court while acquitting the accused was that no independent witness has been examined. The High Court has rightly observed that where there is clinching evidence of eyewitnesses, mere non- examination of some of the witnesses/independent witnesses and/or in absence of examination of any independent witnesses would not be fatal to the case of the prosecution.
24 apeal 261.23.odt 24.1. In Manjit Singh v. State of Punjab [Manjit Singh v. State of Punjab, (2019) 8 SCC 529 : (2019) 3 SCC (Cri) 600] , it is observed and held by this Court that reliable evidence of injured eyewitnesses cannot be discarded merely for reason that no independent witness was examined.
24.2. In the recent decision in Surinder Kumar v. State of Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767] , it is observed and held by this Court that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated.
24.3. In Rizwan Khan v. State of Chhattisgarh [Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627 : (2021) 1 SCC (Cri) 201] , after referring to the decision of this Court in State of H.P. v. Pardeep Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808 : (2019) 1 SCC (Cri) 420] , it is observed and held by this Court that the examination of the independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case."
37. Moreover, in this backdrop, it becomes clear that the father cannot be regarded as an eyewitness to the incident. Though he was physically present in the house, the evidence on record shows that he was asleep in the inner room, while PW1 was in the front room watching television, and was therefore not in a position to perceive what was happening. His mere presence, in such circumstances, would not render him a material witness to the occurrence. It has also come in evidence, consistently through multiple witnesses, that he is of diminished intellectual capacity, which further explains his inability to react or intervene. In such a situation, the non-examination of the father cannot be construed as withholding of any material witness or suppression of material evidence.
25 apeal 261.23.odt
38. The corroborative chain formed by these four independent witnesses is of exceptional strength. PW4, though states to be related to mother of victim, nothing substantial to attribute motive to falsely implicate appellant, is brought in cross examination. PW5 is a school teacher, a professional person of the community, who verified the disclosure methodically before communicating it to the mother. Neither PW4 nor PW5 had any prior dispute with the accused. PW6 and PW8 received the disclosure from both victim girls in a community setting and corroborated PW3's account of her initial reluctance to report. These four witnesses form an unimpeachable ring of corroboration around the testimonies of the victims.
39. It is further observed that the defence has not been able to elicit anything substantial in the cross-examination of the prosecution witnesses so as to create a reasonable doubt regarding the involvement of the appellant. No plausible reason for false implication has been brought on record. In cases of this nature, involving minor children, false implication is highly improbable in the absence of any demonstrated motive, and cogent material to suggest otherwise.
40. The Hon'ble Supreme Court time and again has held that the duty of the appellate court is not to re-write the trial court's judgment, but to satisfy itself that the trial court has not committed a miscarriage of justice by either ignoring material evidence or misappreciating it. In the present case, the learned trial Court has, in our view, meticulously analysed the entire evidence on record and has recorded well-reasoned findings. The 26 apeal 261.23.odt appreciation of evidence by the trial Court is neither perverse nor contrary to the settled principles of law. The conclusions drawn are based on proper evaluation of the material on record and represent a plausible and justified view.
41. Upon re-appreciation of the evidence, this Court finds itself in complete agreement with the findings recorded by the learned Sessions Judge. The prosecution has succeeded in proving beyond reasonable doubt that the appellant committed the offences as alleged.
42. In view of the aforesaid discussion, we proceed to pass the following order:
ORDER
(i) The Criminal Appeal is dismissed.
(ii) The conviction and sentence imposed upon the appellant by the learned Sessions Judge, Bhandara in Special Case (POCSO) No. 34/2019 by judgment and order dated 14.11.2022 are hereby confirmed.
(iii) The appellant shall continue to undergo the sentence awarded to him.
(iv) Fees of the learned appointed counsels be quantified and paid as per rules.
(Nivedita P. Mehta, J.) (Urmila Joshi-Phalke, J.)
sknair
Signed by: Mr. S.K. NAIR
Designation: PS To Honourable Judge
Date: 06/05/2026 16:58:37