[Cites 12, Cited by 0]

Bombay High Court

Shivaji S/O. Mahadu Gunjal vs The State Of Maharashtra on 2 December, 2025

2025:BHC-AUG:33145
                                                1                    APEAL295.2020.odt
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD.

                                   CRIMINAL APPEAL NO. 295 OF 2020

               Shivaji S/o. Mahadu Gunjal,
               Age : 42 years, Occu. Agri.,
               R/o. Padali Darya, Tq. Parner,
               Dist. Ahmednagar.                                          ...Appellant

                      Versus

               The State of Maharashtra                                   ...Respondent
                                                    .........
                     Mr. M. S. Kokate h/f Mr. V. V. Tarde - Advocate for the Appellant
                                  Mrs. M. L. Sangit - APP for the State
                                                    ........

                                                AND
                                CRIMINAL APPLICATION NO. 962 OF 2020
                                                  IN
                                  CRIMINAL APPEAL NO. 295 OF 2020
                                               .........

                                                CORAM :      NEERAJ P. DHOTE, J.

                                                RESERVED ON : 25TH NOVEMBER, 2025
                                                PRONOUNCED ON : 2ND DECEMBER, 2025

               JUDGMENT :

1. This is the Appeal under Section 374(2) of the Code of

Criminal Procedure [for short 'Cr.P.C.'] against the Judgment and Order

dated 6th March, 2020, passed by the learned Additional Sessions Judge,

Ahmednagar, in Special Case No. 417 of 2018, convicting the Appellant

for the offence punishable under Section 376(1) of the Indian Penal

Code and sentencing him to suffer rigorous imprisonment for ten (10)

years and fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment

for one (1) month, AND, for offence punishable under Section 4 of the 2 APEAL295.2020.odt Protection of Children from Sexual Offences Act, 2012 [for short

'POCSO Act'] for which no separate sentence is awarded.

2. The Prosecution's case as revealed from the Police Report is

that, on 10.10.2018, the sister of the Victim informed her mother that

the Appellant gave Rs. 5/- to the Victim and asked for Rs.5/- from her.

The mother of the Victim opened the compass box of the Victim and

found the coin of Rs. 5/-. The Victim's mother inquired with the Victim

as to from where she got the said coin, upon which, the Victim informed

her that, on the day of Mahatma Gandhi Jayanti, when she was playing

with her sister below the coconut tree in front of their house in the

afternoon, the Appellant called them to his house. When they reached

the Appellant's house, her sister and friends were asked to go and the

Victim was taken inside his house. The Appellant made her to sit on his

lap, touched her private part and pressed his private part to her private

part. The Victim shouted and so the Appellant helped her to come down

from the cot and gave coin of Rs. 5/- and threatened her not to inform

anybody about the incident. The Victim's mother approached the Parner

Police Station and lodged the report that, the Appellant sexually

assaulted her daughter and Crime bearing No. I-330/2018 came to be

registered against the Appellant for the offence punishable under

Sections 376(f)(i)(n), 506 of the Indian Penal Code and Sections 4 and

42 of the POCSO Act.

3 APEAL295.2020.odt

3. The Investigating Officer sent the Victim for medical

examination. The statement of the Victim, Victim's sister and other

witnesses came to be recorded. The clothes of the Victim came to be

seized. The Appellant came to be arrested. The spot panchanama was

prepared. The clothes of the Appellant came to be seized. The Appellant

was sent for medical examination. The articles seized during the course

of the investigation were sent for chemical analysis. The relevant

documents were collected and on completion of investigation, the

Appellant came to be charge-sheeted. On committal, the learned Trial

Court framed the Charge against the Appellant for the offence

punishable under Sections 376(f)(i)(n), 506 of the IPC and Section 4 of

the POCSO Act, below Exh. 11. The Appellant pleaded not guilty and

claimed to be tried. To prove the Charge, the Prosecution examined the

following witnesses:

1. PW1 - Victim's mother, who lodged the Report at Exh. 17.

2. PW2 - The panch for spot panchnama and for seizure of clothes of the Appellant, below Exh. 20.

3. PW3 - Victim, below Exh. 25.

4. PW4 - Victim's sister, below Exh. 26.

5. PW5 - The panch witness for seizure of Victim's clothes, below Exh. 27.

6. PW6 - The panch witness for the seizure of Rs. 5/- coin, below Exh. 31.

7. PW7 - The Investigating Officer, below Exh. 34.

8. PW8 - Medical Officer, below Exh. 41.

3.1. In the evidence of the above referred witnesses, the

Prosecution brought on record the relevant documents, such as, 4 APEAL295.2020.odt FIR/Report, the Panchanamas, the Medical Papers and the Chemical

Analysis Reports, etc.

4. After the Prosecution filed 'Evidence Closure Pursis', the

statement of the Appellant came to be recorded under Section 313(1)(b)

of the Cr.P.C. The Appellant stated that, due to the dispute with the

Victim's family on account of common boundary of the agriculture field

and water from the safety tank of the latrine, false case was registered

against him. The learned Trial court passed the impugned Judgment

and Order convicting and sentencing the Appellant as above.

5. It is submitted by the learned Advocate for the Appellant

that, there is no evidence in respect of the date of birth and the age of

the Victim and, therefore, the Prosecution failed to establish that the

Victim was a child below the age of eighteen (18) years. The Medical

evidence do not prove the sexual assault on the Victim. The evidence of

Medical Officer do not find support from the medical papers. There was

delay in lodging the FIR. The Victim's statement was the result of

tutoring by her mother. The Victim's sister was also tutored by her

mother. The evidence on record show that, there was dispute between

the Appellant and the family members of the Victim. The spot where the

incident is alleged to have taken place is surrounded by other houses in

the village and the Prosecution's case was not probable. As the Charge is

not proved, the Appellant was entitled for acquittal.

5 APEAL295.2020.odt

6. It is submitted by the learned APP that, the date of birth

and the age of the Victim is not challenged by the Appellant in the

cross-examination. The evidence of the Victim is corroborated by the

medical evidence. The learned Trial Court considered the presumption

under Section 29 of the POCSO Act. The Appellant failed to prove his

defence of false implication. The evidence of the Victim and her Sister

was consistent. The delay in lodging the FIR is explained. No

interference is called for in the impugned Judgment and Order and the

Appeal be dismissed.

7. Heard both the sides. Scrutinised the evidence available on

record.

8. As regards the case of Prosecution that, the Victim was the

Child, there is no serious challenge on that aspect by the Appellant. No

other document is brought on record to establish the date of birth and

the age of the Victim. PW1, the Victim's mother, deposed the date of

birth of the Victim as 16.03.2009, which is nowhere challenged by the

Appellant. The evidence of the biological mother of the Victim went

unchallenged in respect of the date of birth and the age of the Victim.

Admittedly, the report is lodged in October - 2018. Therefore, there is

no difficulty in observing that the Prosecution proved that at the

relevant time the Victim was a child.

6 APEAL295.2020.odt

9. The Prosecution came up with the story of sexual assault by

the Appellant on the child. The Appellant came with the defence that

there was dispute between him and the family of the Victim on account

of agricultural boundary and the water of the safety tank of the latrine

and, therefore, he was falsely implicated. The testimony of PW1, who is

the mother of the Victim and who lodged the report, in her cross-

examination admitted that, the land of the Appellant was adjacent to

their land and they had common boundary. The evidence of PW2 -

panch witness, who was residing adjacent to the house of the Appellant,

admitted in his cross-examination that, there was dispute between the

appellant and the Victim's father on account of safety tank and the toilet.

Further, PW3 - Victim's evidence show that, there was dispute between

the Appellant and her parents on account of agricultural land and the

waste water of the safety tank of their toilet which was let in the field of

the Appellant. The Victim's testimony further show that, the quarrel

took place between her parents and the Appellant on that count and

they used to see each other like enemy. This evidence on record clearly

show that, the relations between the Appellant and the family of the

Victim were strained and not cordial.

10. As regards the incident of sexual assault is concerned, the

evidence of PW1 - Victim's mother, show that, on 10.10.2018, when she

returned home by completing her agricultural work, her second 7 APEAL295.2020.odt daughter told her that the Appellant gave coin of Rs. 5/- to the Victim,

which was kept in her compass and she also asked for Rs. 5/- from her.

She inquired with the Victim in that regard. At that time, the Victim told

her that on 02.10.2018, after she returned home from the school, the

Appellant called her and her two sisters at his house. The Appellant sent

the sisters back and took the Victim inside the room and by lifting her

skirt removed her slack, opened the zip of his trouser and pressed his

penis over the vagina of the Victim and slept on the Victim. The Victim

felt irritation and she raised alarm. The Appellant gave Rs. 5/- coin to

her and asked the Victim not to disclose the incident to anybody and

told the Victim that her parents were doing such things in the night. The

Victim came back home. PW1 in her further evidence deposed that,

with her husband, she went to the house of the Appellant to inquire the

incident. At that time, the Appellant's wife asked her to do whatever she

want to. Thereafter, she went to Parner Police Station and lodged the

report against the Appellant below Exh. 18. She further deposed that,

the Victim was referred for medical examination to the Rural Hospital.

She deposed of recording her statement under Section 164 of the Cr.P.C.,

below Exh. 19.

11. The cross-examination of PW1 show that, the Victim did not

disclose anything to her about the incident till 10.10.2018. The Victim

did not state anything to her about any incident prior to 02.10.2018.

8 APEAL295.2020.odt Her younger daughter also had not stated anything about the incident

dated 02.10.2018. Her cross-examination show that, her evidence that

she along with her husband went to the house of the Appellant to ask

about the incident and at that time the Appellant's wife asked her to do

whatever she want to, was an improvement/omission.

12. The evidence of the Victim show that, she was studying in

5th std., in Zilla Parishad School. The Appellant was residing behind her

house. In 2018, on the day of Gandhi Jayanti, after she returned home

and went to play under the coconut tree with her two sisters, the

Appellant called them and asked her sisters to go and he took her inside

the room and caused her to sit on the cot and thereafter on his lap. The

Appellant removed half of her slack and raised skirt upwards and by

removing the zip of his trouser, placed his private part on her private

part and slept on her. She felt itching on the private part and so she

shouted. The Appellant got up and rubbed her vagina by his finger, due

to which she felt itching. Thereafter, she was made to come down from

the cot. The Appellant gave Rs. 5/- coin to her and told her not to

disclose the incident to anyone. She further deposed that, her younger

sister saw Rs. 5/- coin in her compass and informed the same to her

mother and after her mother saw the coin of Rs. 5/- in her compass, she

inquired with her about the same and so she narrated the incident to her

mother.

9 APEAL295.2020.odt

13. The cross-examination of the Victim show that, her mother

accompanied her to the Police Station when her statement was recorded

by the Police. In clear terms, it has come in her cross-examination that

she gave the statement as per the say of her mother and while recording

the statement, she and her mother stated the contents to the Police. If

we see the evidence of the Investigating Officer-PW7, it show that at the

time of lodging the report the informant was accompanied by her

husband and the relatives and he further admitted that the statement of

the Victim and her sister were not recorded immediately after lodging

the Report. This show that there was delay in recording the statement

of the Victim and that of her sister. It has further come in the cross-

examination of the Victim that, she did not remember whether she

stated all the contents of her Police Statement before the learned

Magistrate while recording her statement under Section 164 of the

Cr.P.C. This Cross-examination of the Victim indicate tutoring of the

Victim.

14. The evidence of PW4, who is the Victim's sister deposed

that, on the day of Gandhi Jayanti, after she and the Victim returned

home and went for playing under the Coconut tree, the Appellant called

them in his house and accordingly they went there. The Appellant took

the Victim inside his house and sent her younger sister back for playing 10 APEAL295.2020.odt under coconut tree. When she saw Rs. 5/- coin in the compass box of

the Victim, she came to know that it was given by the Appellant and so

she told about the same to her mother and also asked her for Rs. 5/-.

Her evidence goes to show that, when her statement was recorded by

the Police, she was accompanied by her mother PW1. Her cross-

examination in clear terms show that, she do not remember whether she

stated before the Police as per the say of her Mother. In clear terms, it

has come in cross-examination that, her mother told her what to depose

before the Court. This indicate that the testimony of this witness was

the result of tutoring by her mother.

15. The evidence of PW2 show that, on 14.10.2018, he was

called by the Police at the house of the Appellant for spot panchanama,

and Exh. 21 spot panchanama was prepared. As per the above evidence

of the Victim, the spot of the incident was the house of the Appellant. It

is nobody's case that the Appellant was residing alone in his house.

What the evidence in the cross-examination of the Victim's mother go to

show is that, the accused was residing with his wife, one daughter and

one son. There were houses of their relatives adjacent to their house

and that of the accused. The evidence of PW6 - panch witness, who was

from the same village, show that, his house was adjacent to the house of

the Victim and the house of the Appellant was at a distance of 50 feet

from his house and one can listen if called from their house and the 11 APEAL295.2020.odt voice could reach from their house to the house of the Appellant. The

evidence further show that, the houses of other persons were situated

near to their house and house of the Appellant was visible from their

house. This further show that, the spot of incident was in the thickly

populated area. If this is the admitted position, it is highly improbable

that the incident as narrated by the Victim took place at the house of the

Appellant. There is medical evidence on record in the nature of

testimony of PW8, who was the Medical Officer at Rural Hospital at

Parner. On 14.10.2018, the Victim was brought for medical examination.

After recording the history, she examined the Victim. On examination,

she found redness in her Labia Majora and Labia Minora. There was no

swelling and congestion oedema. There was no evidence of any injury.

She gave the opinion that, there may be attempt of sexual assault.

Accordingly, she issued the Medical Examination Form at Exh. 44. Her

cross-examination show that, the history of alleged incident is not

mentioned in the Medical Examination Form at Exh. 44. It has further

come in her cross-examination that, redness and the tenderness in the

vagina may be due to itching / scratching on the vagina by female

herself. In clear terms, it has come in her cross-examination that, there

was no mention in the Medical Examination Form at Exh. 44 that, there

was redness in the Labia Majora and Labia Minora. Though, in the

further examination-in-chief the Medical Officer deposed that, the

history was mentioned in the MLC register, it has come in the further 12 APEAL295.2020.odt cross-examination that the Victim was accompanied by her mother. The

MLC number, date, time and place were not mentioned in the extract of

MLC Register (Exh.49). This Medical Officer volunteered that the

Victim's mother helped her while giving the history. It has further come

in the cross-examination that, Column No. 13 in respect of history in the

Forensic Medical Examination Report was blank. The medical evidence

is not concrete in respect of the sexual assault, as it also show that the

redness on the Labia Majora and Labia Minora may be possible due to

scratch out of itching.

16. The other evidence is in respect of seizure of clothes of the

Victim and the Appellant. As there is nothing incriminating in the CA

reports, the seizure becomes irrelevant. It has come in the cross-

examination of Investigating Officer that, no complaints were received

against the Appellant in respect of such offence prior to the present

incident. It is needless to state that, the testimony of the Child is to be

evaluated with great care and caution as they are susceptible to tutoring.

The above discussed evidence on record clearly show that, the statement

of the Victim and her sister were influenced by their mother. The

Victim's statement was the result of tutoring. In the backdrop of the

clear evidence that the relations between the Appellant and the Victim's

family were not cordial, the possibility of false implication cannot be

ruled out. The medical evidence do not corroborate the prosecution's 13 APEAL295.2020.odt case and the Victim's evidence in respect of the sexual assault. The over

all evidence on record is not concrete and not free from doubt.

Evaluation of the evidence on record leads to the conclusion that, the

prosecution case is under the shadow of doubt and the defence of the

Appellant appears probable. When the Prosecution's evidence do not

conclusively establish the Charge, there is no question of drawing

presumption as provided under Sections 29 of the POCSO Act.

17. Perusal of the Judgments cited by the learned APP, in Wahid

Khan Versus State of Madhya Pradesh, (2010) 2 SCC 9, Mangesh s/o.

Damodhar Chandankhede Versus State of Maharashtra, 2018 All.M.R.

(Cri) 403 and Nawabuddin Versus State of Uttarakhand, (2022) 5 SCC

419, show that, the facts therein were different. They are on the point

of proving the age of the Child, no necessity of corroboration to the

testimony of the Victim, and that the testimony of the Victim of rape

stands on par with that of an injured witness. There can be no doubt in

respect of the principles laid down in the said judgments. However, in

the backdrop of the evidence in the case at hand, it is not possible to

maintain the Conviction and sentence awarded by the learned Trial

Court. Resultantly, the Appeal succeeds. Hence, I pass the following

order:-

ORDER

[i] Criminal Appeal is allowed.

14 APEAL295.2020.odt [ii] The conviction and the sentence awarded by the learned

Additional Sessions Judge, Ahmednagar, vide the Judgment

and Order dated 6th March, 2020, in Special Case No. 417 of

2018, is hereby quashed and set aside.

[iii] The Appellant is acquitted of the offences for which he has

been convicted and sentenced by the learned Trial Court by

the impugned Judgment and Order.

[iv] The Appellant is in Jail and he be released forthwith, if not

required in any other offence.

[v] The muddemal articles be dealt with as directed by the

learned Trial Court.

[vi] The fine amount if paid by the Appellant be refunded to

him.

[viii] The record and proceedings be sent back to the learned

Trial Court.

[ix] Pending Criminal Application/s, if any, stand/s disposed off.