[Cites 7, Cited by 0]
Bombay High Court
Sachin Suresh Wadekar vs State Of Maharashtra And Anr. on 1 December, 2025
2025:BHC-AS:52196
Shubhada S Kadam CRIMINAL APPEAL-146-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 146 of 2023
Sachin Suresh Wadekar ... Appellant/
Age - 37 years, Occupation - Nil, Original Accused
R/at - Swami Vivekanand Nagar,
Room No.33-7/10, Ramabai Ambedker Nagar,
Dr. E.
versus
1. The State of Maharashtra .... Respondents
2. Ms. XYZ-Victim
(At the instance of Worli Police Station,
Mumbai in C.R.No.266 of 2021).
Ms. Krupali H. Rajani along with Ms. Afreen Sheikh, Ms. Esha Pachare
and Ms. Sarika Agarwal, Advocates for the Appellant.
Mr. Ashok Gawai, APP for Respondent No.1-State.
Ms. Manisha Devkar, Appointed Advocate for Respondent No.2
CORAM : R. M. JOSHI, J.
RESERVED ON : 19th NOVEMBER, 2025.
PRONOUNCED ON : 1st DECEMBER 2025.
Judgment :
1. The appellant/convict being aggrieved by the judgment and
order dated 4th April 2022 passed in POCSO Special Case No.749 of
2021 for the offences punishable under Section 376(2)(f)(i) (n) and 506 of
SHUBHADA
SHANKAR the Indian Penal Code 1860 (for short "IPC") read with offence punishable
KADAM
Shubhada S Kadam CRIMINAL APPEAL-146-2023.doc
2012 (for short "POCSO"), whereby the appellant is sentenced to suffer
rigorous imprisonment for a period of 25 years and to pay fine of
Rs.20,000/-, has preferred this appeal.
2. It is the case of the prosecution that the victim aged 13 years,
daughter of the accused, was residing with her grandparents, accused,
uncle and two siblings. The mother of the victim had left the accused prior
to seven years on account of family disputes and the grandmother of the
victim was taking care of the children. When the victim missed her
menstrual period, the grandmother asked her about the same and, at that
time, she disclosed that accused had forcibly committed sexual
intercourse with her since the period of a year. She also informed to her
grandmother about the incident having occurred prior to 4 to 6 days and
also an attempt made a day before lodging of the report. The victim
claimed that since the accused threatened to beat her, she did not
disclose the incident to anyone. It is the mother of the accused who had
lodged to the report to the police, which came to be registered as Crime
No.266 of 2021 with Worli Police Station. On the basis of the said report,
investigation commenced. The accused was arrested. Police visited the
spot and panchanama was prepared with seizure of clothes and other
relevant articles. The accused and victim were referred for medical
examination and medical reports are included in investigation papers. The
statements of witnesses were recorded and on conclusion of the
investigation, charge-sheet came to be filed.
Shubhada S Kadam CRIMINAL APPEAL-146-2023.doc
3. Learned Trial Court framed the charges against the accused
vide Exhibit-2. Since the accused pleaded not guilty, prosecution
examined six witnesses to prove the guilt of the accused. The witnesses
examined by the prosecution are informant-PW1 (Exhibit-10), victim-PW2
(Exhibit-13), Vasudeo Naidu-PW3 Panch Witness (Exhibit-15), PSI
Khonde-PW5 (Exhibit-19), WPSI Patil-PW5 Investigating Officer (Exhibit-)
and Dr. Sanklecha -PW6 (Exhibit-21). Learned Trial Court found the
evidence led by the prosecution sufficient to prove the guilt of the accused
beyond the shadow of reasonable doubt and, hence, convicted the
accused and sentenced him as noted hereinabove.
4. Learned counsel for the appellant submits that the Trial Court
has committed an error in not taking into consideration the material
evidence on record, which according to her, does not prove the guilt of the
accused beyond reasonable doubt. She drew attention of the Court to the
admissions given by the victim as well as grandmother of the victim with
regard to the number of family members/persons residing in one room
admeasuring about 10 x 10 square feet with loft. It is her submission that
it is practically impossible that any sexual intercourse could be done by
the accused when the victim along with siblings and grandmother used to
sleep on the ground floor, whereas the father and maternal uncle were
sleeping on the loft. It is argued that such improbability ought to have
been taken into account by the Trial Court before recording the judgment
Shubhada S Kadam CRIMINAL APPEAL-146-2023.doc
of conviction against the accused. She further drew attention of the Court
to the testimony of the Medical Officer who records about there being no
history of penetrative sexual assault and history was the act of fingering
done by the accused. It was argued that the admissions given by the
victim, indicate about the concern being shown by her father i.e. accused
and, therefore, this rules out the possibility of sexual assault/ abusing her.
The acquittal is sought on the ground that discrepancies in the testimony
of the victim and informant are vital in nature and therefore, the benefit
thereof must go to the accused. It is also canvassed that as per the
admissions given by this witness, quarrels used to occur between the
victim, accused and the informant and this also could be a ground for his
false implication in the crime. She placed reliance on Kishore Vitthalrao
Shendre Versus The State of Maharashtra reported on AirOnline
2024 Bom 1331 and Rishi versus State of Uttar Pradesh 2016 (4) ALJ
694.
5. Learned APP and learned counsel for respondent No.2-victim
opposed the contention of the appellant on the ground that there is
consistent evidence of the victim and informant which is duly supported
by medical evidence on record indicating the victim being sexually abused
and there being forcible penetrative sexual intercourse committed by the
accused on her. It is further argued that in order to falsely implicate the
father in the crime, there has to be strong reason and in the absence
thereof, it cannot be said that this is a case of false implication. It is
Shubhada S Kadam CRIMINAL APPEAL-146-2023.doc
argued that sole testimony of the victim is sufficient to convict the accused
and in this case, same is duly supported by medical evidence. With
regard to non-disclosure of the acts done by the accused immediately, it is
argued that since the victim was dependent upon accused for her
sustainment and since, the accused is her father, it is possible that the
victim could not gather courage to lodge report against him. It is also
argued that there could be no reason for the mother of the accused to
lodge false report against him in the absence of any other compelling
reason therefor. It is submitted that in view of Sections 29 and 30 of the
POCSO Act, there is a presumption as to certain offences and since the
presumption is not rebutted, this is not a case of acquittal of the accused.
She relied upon the judgment of Hon'ble Supreme Court in Dinesh
Kumar Jaldhari versus The State of Chhattisgarh 2025 LiveLaw (SC)
1105 to support her contention.
6. In the instant case, the offence punishable under Section 6 of
the POCSO Act has been lodged against the appellant. He is said to
have committed penetrative sexual assault on the victim. In order to
prove the said charge, at the first instant, the prosecution is required to
prove that the victim was child as defined under Section 2(1)(d) of the
POCSO Act. The said definition indicates that child means any person
below the age of eighteen years. The date of birth of the victim has been
proved on the basis of her birth certificate. So also, victim has claimed on
oath, her age to be 13 years in her testimony before Trial Court . During
Shubhada S Kadam CRIMINAL APPEAL-146-2023.doc
the cross-examination, no challenge is raised by the accused to the said
fact. In fact there is no dispute about the fact that victim is minor.The
evidence led by the prosecution, therefore, is conclusive in nature and it is
held that the victim was child at the time of the occurrence of the incident
and the provisions of the POCSO Act are squarely applicable to the case.
7. The victim in her substantive evidence claims that the accused
has committed penetrative sexual intercourse on numerous occasions. In
this regard, her testimony indicates that she states about the said act
being done by the accused on number of occasions during the period of
one year prior to lodging of the report. She also states that when she
missed her menstrual period, her grandmother asked her about the same
and at that time, she disclosed the acts done by the accused to her. In
the cross-examination, it was suggested to the victim that the place
wherein the incident is stated to have occurred is a small room in which,
number of persons were residing and sleeping. Thus it is sought to be
suggested that it is impossible that any such incident would occur in the
presence of grandmother and two siblings of the victim. There are other
suggestions to the victim with regard to the fact there used to be talks take
between victim and the accused and the accused used to inquire with her
about studies etc. and therefore, they had cordial relationship.
8. The prosecution has also led evidence of informant-
grandmother of the victim and mother of the accused, who states about
victim having communicated to her about the act of committing sexual
Shubhada S Kadam CRIMINAL APPEAL-146-2023.doc
intercourse by the accused with her and she being threatened not to
disclose the same. In the cross-examination, she admits that the victim
used to get irritated easily and was in the habit of staying out of house
maximum time. It is also brought on record that the accused was going to
work and used to return in the evening. It is also suggested that he was
was taking care of the children. The defense has made an attempt to
bring it on record that since the accused was not liking the victim talking to
her male friends, there used to occur quarrels between them and this can
be the reason for his false implication in the crime. Questions were also
posed to the informant to the effect that she was sleeping in the same
room where the incidents are said to have occurred and that she did not
get sound sleep and was in the habit of waking up in the night.
9. It is settled position of law that the testimony of the victim, if
found reliable and consistent, the same does not require any further
corroboration. Here in this case, the victim is the daughter of the accused
and she alleged her father having committed sexual intercourse with her
on number of occasions. Though the victim has not disclosed the said
incident to anyone immediately, nor even to her grandmother for some
time, the same by itself, will not be sufficient to discredit her testimony.
Needless to say that it would be extremely difficult for any girl of that age,
firstly, to resist any sexual assault and secondly, to disclose the same to
anyone in view of her dependency on her father, more particularly when
the mother has already left home.
Shubhada S Kadam CRIMINAL APPEAL-146-2023.doc
10. Apart from the testimony of the victim, there is medical
evidence on record to indicate that the victim was subjected to the
penetrative sexual intercourse. Though it is sought to be argued on behalf
of the appellant that no history of penetrative sexual intercourse was given
by the victim to the Medical Officer, perusal of the history recorded
indicates that it was told to the Medical Officer about the penetrative
sexual intercourse having committed by the accused on her. No doubt
the medical evidence indicates that there is no evidence of recent sexual
intercourse and, as such, opinion of the Medical Officer is fully justified in
view of the fact that it is the case of the victim that recently i.e. before
lodging of the report and medical examination, an attempt was made by
the accused to commit sexual intercourse with her and not actual
intercourse.
11. The evidence of victim itself gets due corroboration from the
medical evidence indicating penetrative sexually intercourse being
committed with her by the accused. It is canvassed on behalf of the
appellant that in the room admeasuring 10 x 10 square feet with two
siblings of the victim and grandmother sleeping there, occurrence of such
incident is impossible. It is pertinent to note that the siblings of the victim
are younger to her. Similarly though the grandmother states about she
waking up during night, it cannot be assumed that she remained awake all
the time in night. One has to understand that the accused who is the
father of the victim commits sexual assault on her, hence, it cannot be
Shubhada S Kadam CRIMINAL APPEAL-146-2023.doc
expected of the victim to raise cries at the time of occurrence of the
incident.
12. As a matter of fact, since the offence has been disclosed after
considerable time, this Court is required to take into consideration as to
whether the accused has brought any concrete reason or motive for the
false implication. This becomes relevant in view of Section 29 of the
POCSO Act. As per the said provision, once fundamental facts are
proved and which are sufficient to convict the accused, burdent would be
on accused to rebut the said presumption. Perusal of the evidence on
record and, more particularly, the cross-examination conducted of the
victim and her grandmother, except for the fact that the victim used to stay
outside, which was disliked by her father, there is no solid ground made
out for attributing motive for the victim to falsely implicate the accused in
this crime. It cannot be ignored that the accused was bread earner for the
children and it is not possible that the child will falsely implicate the father
which would lodge him in jail for considerable period of time.
13. The prosecution here in this case has discharged the initial
burden of proving the guilt of the accused and in view of Section 29 of the
POCSO Act, the onus is shifted upon the accused to prove the contrary.
No evidence was led by the accused independently and even from cross-
examination of the victim and her grandmother, nothing is elicited nor
shown that the sexual intercourse with the victim was by any other person
than the accused.
Shubhada S Kadam CRIMINAL APPEAL-146-2023.doc
14. The prosecution has thus proved the factum of penetrative
sexual assault being caused on victim. It becomes aggravated
penetrative sexual assault in view of Section 5(l)(m)(p) of the POCSO Act
as it is further proved that the appellant has committed penetrative sexual
assault on the child repeatedly and he being father of the victim i.e.
having position of authority over the child, the act committed by the
appellant/accused amounts to aggravated penetrative sexual assault
punishable under Section 6 of the POCSO Act.
15. Having regard to the aforesaid discussion, this Court finds no
reason to cause any interference in the order impugned. Hence, the
appeal stands dismissed.
(R. M. JOSHI, J.)
