[Cites 25, Cited by 0]
Bombay High Court
Shivaji Bhaurao Suryawanshi vs The State Of Maharashtra And Another on 3 December, 2025
2025:BHC-AUG:33341
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.390 OF 2023
Shivaji Bhaurao Suryawanshi
Age : 37 years, Occu : Labour,
R/o. Brahmani, Tq. Rahuri, ... Appellant
Dist. Ahmednagar (Original Accused)
Versus
1. The State of Maharashtra,
Through Rahuri Police Station,
Dist. Ahmednagar
2. XYZ ... Respondents
......
Shri. C. C. Deshpande h/f. Shri. S. S. Rathi, Advocate for the Appellant
Ms. M. L. Sangit, APP for the Respondent - State.
Shri. S. A. Ambilwade, Advocate for Respondent No.2 (Appointed
through Legal Aid)
......
CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 19.11.2025
PRONOUNCED ON : 03.12.2025
JUDGMENT :
1. This Criminal Appeal under Section 374 (2) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.') is
directed against the Judgment and Order dated 08.03.2023 passed by
the learned Extra Jt. District Judge & Additional Sessions Judge,
Ahmednagar in Special Case No.81 of 2022, convicting and sentencing
the Appellant as follows:
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"1. Accused Shivaji Bhaurao Suryawanshi is acquitted under
the provisions of Section 235(1) of the Code of Criminal
Procedure, 1973 for the offence punishable under
Sections 323 of Indian Penal Code.
2. Accused Shivaji Bhaurao Suryawanshi is convicted under
the provisions of Section 235(2) of the Code of Criminal
Procedure, 1973 for the offence punishable under Sections
376(3), 376(2)(n), 363, 366(A), 506 of Indian Penal Code
and under Sections 4, 6, 8 and12 of POCSO Act.
3. Accused Shivaji Bhaurao Suryawanshi is convicted and
sentenced to suffer R.I. for twenty years and fine of
Rs.2000/- (Rs. Two thousand only) i/d. to suffer S.I. for
two months u/s.376(3) of I.P.C.
4. He is further convicted and sentenced to suffer R.I. for
two years and fine of Rs.1000/- (Rs. One thousand only)
i/d. to suffer S.I. for one month u/s.366(A) of I.P.C.
5. He is further convicted sentenced to suffer R.I. for six
months fine of Rs.500/- (Rs. Five hundred only) i/d. to
suffer S.I. for 07 days u/s.506 of I.P.C.
6. All the substantive sentences shall run concurrently.
7. Accused is in jail. He is taken into custody. He is entitled
for set- off u/s.428 of Cr.P.C. for the period already
undergone by him.
8. Muddemal property i.e. seized motor cycle be given to its
registered owner and other muddemal being worthless,
be disposed of after appeal period is over.
9. Copy of judgment be given to the accused free of cost.
10. The judgment is dictated and pronounced in open court."
2. The Victim - child was residing with her family. The Appellant
was the neighbourer. They knew each other. The Appellant in the night
of 17.11.2021 took the Victim with him on the motorcycle at Wadgaon,
Tal. Karmala, Dist. Solapur. They stayed at one place at the said village
where the Appellant raped the Victim from time to time till 11.12.2021.
The Appellant came to know that the Report was lodged by the Victim's
Uncle and so he dropped the Victim to the village. The Victim narrated
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the incident to her family members and the matter was reported to the
Rahuri Police Station. The Victim's Statement was recorded and Crime
bearing No.944/2021 came to be registered against the Appellant for
the offence punishable under Sections 376 (2)(n), 363, 366, 323, 506 of
the Indian Penal Code (for short, 'IPC') and for the offence punishable
under Sections 4, 6, 8 and 12 of the Protection of Children from Sexual
Offences Act, 2012 ( hereinafter referred to as the 'POCSO'). The Victim
was referred for medical examination. The Victim's clothes came to be
seized. The Appellant came to be arrested and was sent for medical
examination. Clothes of the Appellant came to be seized. The
Panchanama of the spot of the incident came to be drawn. Statement of
the Witnesses came to be recorded. Document in respect of the age and
medical examination of the Victim came to be collected. On completion
of the investigation, the Appellant came to be Charge-sheeted.
2.1. On committal, the learned Trial Court framed the Charge against
the Appellant below Exh.4 for the offence punishable under Sections
363, 366A, 376(2)(n), 323, 506 of the IPC and for the offence
punishable under Sections 4, 6, 8 and 12 of the POCSO and for the
offence punishable under Section 376(3) of the IPC below Exh.72. The
Appellant pleaded not guilty and claimed to be tried. To prove the
Charge, the Prosecution examined the Victim as PW1, the Victim's Uncle
as PW2, the Panch Witness for the spot as PW3, the Panch Witness for
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seizure of Motorcycle and the clothes of the Appellant as PW4, the
Medical Officer who examined the Victim as PW5, the Headmaster of
the Primary School where the Victim studied as PW6, the Investigating
Officer as PW7, the another Investigating Officer as PW8, and the
Gramsevak of the Grampanchayat as PW9. Certain documents are
brought on record in the evidence of the aforesaid witnesses. After the
Prosecution filed the evidence closed pursis, the Statement of the
Appellant under Section 313 (1)(b) of the Cr.P.C. came to be recorded.
The Appellant stated that, he was falsely implicated as he refused to
allow the family members of the Victim to erect fencing. The learned
Trial Court on appreciation of the evidence on record, passed the
impugned Judgment and order.
3. Heard the learned Advocate for the Appellant, the learned APP for
the Prosecution and the learned Advocate for the Respondent No.2 -
Victim. Scrutinized the evidence available on record.
4. It is submitted by the learned Advocate for the Appellant that, the
Victim was of age of understanding and she knew as to what was good
and bad for her. The Victim accompanied the Appellant out of the love.
The Victim's Uncle deposed that, the Victim voluntarily went. The
Victim was accompanied with her family members in the Police Station
and the possibility of her tutoring cannot be ruled out. The Victim had
refused her medical examination at the first instance. No injuries were
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found on the Victim in the medical examination. She gave the history to
the Medical Officer that, she went with the known person out of love
affair with him. The Spot Panchanama was not disputed. The persons
residing near the house of the Victim were not examined. The evidence
on record do not prove the Charge against the Appellant and the Appeal
be allowed. In support of his contention, he cited the Judgments in
Alamelu & Anr vs. State represented by Inspector of Police, 2011 Legal
Eagle (SC) 61, and Satesing @ Aaba Manga Thakare (Bhil) vs. The State
of Maharashtra and Another in Criminal Appeal No.914 of 2018 decided
by this Court on 19.04.2022.
5. It is submitted by the learned APP that, the age of the Victim was
proved and she was minor on the date of the Crime. There was huge
difference in the age of the Victim and the Appellant. As there was
considerable delay in the medical examination, no injuries were found
on the Victim. The Victim was not of consenting age. She was threatened
by the Appellant. The learned Trial Court has rightly appreciated the
evidence available on record. The Conviction and Sentence needs no
interference. In support of her contention, she cited the Judgment in
Jamnalal vs. State of Rajasthan and another dated 06.08.2025 in
Special Leave Petition (CRL.) No.69 of 2025.
6. It is submitted by the learned Advocate for the Victim that, as the
Victim was the child, her consent was immaterial. The Appellant was
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married person and his son was studying with the Victim. The learned
Trial Court rightly convicted and sentenced the Appellant and the
Appeal be dismissed.
7. To prove the date of birth of the Victim, the Prosecution relied on
the evidence of the PW6 - Headmaster of the School where the Victim
had taken the admission in the first standard and PW9 who was the
Gramsevak of the Grampanchayat where date of the birth of the Victim
was recorded.
7.1. The evidence of PW6 show that, since 07.03.2019 he was
attached to the Primary School. His evidence show that, he brought the
admission register of the school. The Victim was admitted in the said
school on 25.06.2012 in the first standard. At the time of her admission,
her guardian submitted the hospital certificate regarding the age. The
entry of the Victim was at Serial No.3474 in the Book No.13 wherein
name of her parents were mentioned as Yashoda and Santosh and place
of birth as Wadner, Tal. Kannad, Dist. Aurangabad. The date of birth of
the Victim was recorded as 04.01.2007. The certified copy of the
admission form and certified copy of the relevant page from the school
record are brought on record in the evidence of this Witness at Exh.37
and 38, respectively. Merely because he was not the Headmaster of the
School when the Victim took admission, will not be sufficient to discard
his evidence which is in the nature of school record maintained in
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regular course of the functioning of the school. Evidence of this Witness
clearly show that, the details of the Victim including date of birth were
recorded on the basis of the documents supplied by her guardian.
Nothing has come in the cross-examination to create any dent in the
testimony of this witness.
7.2. The evidence of PW9 show that, since 2021 he was working as the
Gramsevak with the Wadner Grampanchayat. His work comprised of
maintaining record of birth and death register and to record the entries.
His evidence show that, he brought original record with him regarding
birth entry of the Victim as per summons. The date of birth of the
Victim was recorded in the register at Sr. No.2. The name of the parents
were mentioned as Santosh and Yashoda and birth place was mentioned
as Primary Health Centre, Wadner. Date of birth of the Victim was
recorded as 04.01.2007. The certified copy of the Birth Report
maintained by the Grampanchayat was brought on record in the
evidence of this witness at Exh.67. Merely because he was not working
at relevant time when the entry was recorded, will not be sufficient to
discard his evidence which was based on the record maintained by the
Grampanchayat in day-to-day functioning. The cross-examination could
not shake his evidence given in the examination-in-chief.
7.3. There is no reason to discard the evidence of the above referred
two witnesses in respect of the record maintained by the school where
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the Victim was admitted in the first standard and the Grampanchayat
record wherein the entry of birth of the Victim was recorded. The date
of birth mentioned in both records is consistent. With this evidence on
record, the Prosecution established that, the date of birth of the Victim
was 04.01.2007.
8. The testimony of the Victim show that, the Appellant was residing
in front of her house with his family. She deposed that, once in the
afternoon when she was collecting the cotton in the field, the Appellant
came to her and expressed his liking for her and she returned to her
home without talking to him. Once in the afternoon when there was no
water in the Grampanchayat tap, she went to the Grampanchayat for
getting the water, at that time the Appellant asked her the answer for his
liking to her and she replied in the affirmative. Thereafter, they both
started speaking to each other. Once the Appellant kissed her on the lips
forcibly and she ashamed. The Appellant presented one mobile phone to
the Victim. They used to talk with each other on the mobile phone. The
Appellant's Wife once saw the Appellant and the Victim talking and so
she called the Victim to her house. The Appellant tried to commit suicide
by consuming poison. The evidence of Victim further show that, in
August-2021 when she had been to the field, the Appellant came to her
and started talking with her. She showed disinclination to talk to him.
The Appellant threatened to consume poison and name her parents for
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the consumption of the poison, for that they would go in jail. Therefore,
unwillingly she started to talk to the Appellant. On 15.11.2021 she
received phone call from the Appellant who called her to meet around
11:00 p.m. behind the house. When they met, the Appellant told the
Victim that they would run and perform the marriage. The Victim
refused. The Appellant threatened to kill her parents and threatened to
commit suicide by consuming poison, therefore the Victim replied in the
affirmative. On 16.11.2021 she received phone call of the Appellant in
the night at 2:00 a.m. and the Appellant called her near Anganwadi and
so she went there. The Appellant came with the black colour Motorcycle
and asked her to sit on the same and took her to Karmala. They reached
Karmala at 11:00 a.m. They went in one field where the Appellant
managed one hut to stay. They both stayed in the hut for 20 to 25 days,
during which period the Appellant forcibly committed sexual intercourse
with the Victim every day.
9. The Victim further deposed that, on 12.12.2021 the Appellant
learnt that, the case was filed and the Police was searching them,
therefore, he brought the Victim at Brahmani and asked her not to tell
anything to the Police. The Appellant left the Victim near the forest and
he went on the motorcycle. The Victim told the incident to her family
members. The Police recorded her Statement. She was medically
examined at Rahuri. The Police seized her clothes, which were Articles
1 to 4. She identified clothes at Article 4 to 6 as that of the Appellant.
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She identified the Appellant before the Court. Her further evidence show
that, the Appellant was having three children and the elder son of the
Appellant was her classmate.
10. Cross-examination of the Victim show that, her evidence that the
Appellant was residing in front of her house and they knew each other is
fortified. The tenor of the cross-examination show that, it is not
disputed that the Victim accompanied the Appellant and was in his
company for some days. From the cross-examination, it becomes crystal
clear that, it is the defence of the Appellant that, all the acts were by
consent of the Victim, including sexual intercourse. The Victim denied
that the sexual intercourse was by her consent. From the
cross-examination, it is seen that, the Appellant presented mobile phone
to the Victim and they used to talk. It has come in the cross-
examination that, the Appellant did not allow her to speak with the
neighbours, therefore she could not tell anybody. It has also come in the
cross-examination that, the Appellant threw the card of her mobile and
therefore, she could not make a phone call to anybody and the Appellant
used to take her with him if he wanted to go anywhere. It has also come
in the cross-examination that, when the Victim's parents came in search
of the Victim, the Appellant took her to another village on the
motorcycle and the Appellant kept her at one place in the village. She
further denied that, she was staying with the Appellant as per her wish.
Though the cross-examination indicate that, the Victim developed some
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intimacy towards the Appellant, the overall evidence of the Victim show
that, the Appellant initiated the relationship and he tried to commit
suicide as the Victim was not responding to his advances or proposal.
The Victim's evidence show that, the Appellant threatened the Victim to
implicate her parents by again consuming poison. This clearly show
that, the Victim responded to the acts of the Appellant under pressure or
duress and surrendered herself to the Appellant's wishes. The Victim's
evidence show that, the Appellant, by making phone call to her after
midnight made her to accompany him to different places, where they
stayed together and committed sexual intercourse with her. The
evaluation of the evidence of the Victim show that, unwillingly she
surrendered herself to the Appellant. Sexual intercourse with the Victim
by the Appellant is not seriously disputed as is clear from the Victim's
evidence. It is needless to state that, the consent or wish or Will due to
duress or threat or compulsion, is not a free consent. True it is, that
twice, in the cross-examination of the Victim it has come that the
Appellant did not give threat to her, however, it was in the context of his
expressing liking for her and presenting the mobile phone.
11. Reasonably lengthy cross-examination of the Victim could not
demolish her evidence given in the examination-in-chief. The incident
of taking the Victim by the Appellant in the midnight is of 16.11.2021
and they were together till 11.12.2021, during which period, the
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Appellant established sexual relations with the Victim. From the proved
date of birth of the Victim, and the above dates, during which, the
incident took place, clearly establishes that, at the time of incident the
Victim was below 15 years of age and thus was a Child as defined under
Section 2(d) of the POCSO. The testimony of the Victim show that, it
was consistent with her previous Statement recorded by the Police. The
suggestion of false implication is denied by the Victim. Except denial,
there is nothing in the Statement of the Appellant recorded under
Section 313 (1)(b) of the Cr.P.C. Considering the Victim's age, she was
not legally competent to consent for the acts deposed by her in her
evidence committed by the Appellant. It is needless to state that, under
the law, the consent of minor, will not be the consent. As discussed
above, the Appellant's son namely Suraj, was the classmate of the
Victim. This show that, the Appellant had the knowledge that the Victim
was the minor / Child. The overall testimony of the Victim inspires
confidence and there is nothing to discard her testimony. Her testimony
clearly established that, under duress or due to the pressure or threat by
the Appellant to commit suicide and implicate her parents she had no
option but to listen to the Appellant and in that course, she accompanied
the Appellant and had sexual intercourse with him.
12. There is medical evidence on record in the nature of testimony of
PW5, who was the Medical Officer at Rauri Rural Hospital. Her evidence
show that, on 15.12.2021 she was on duty as Gynecologist and the
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woman Police Constable brought the Victim for clinical examination
around 02:30 p.m. After taking consent of the Victim and that of her
guardian, she noted the identification mark of the Victim, took down
history narrated by the Victim and medically examined her. Her
evidence show that, she found no injury on external or internal body or
genitals of the Victim. On vaginal examination, she found that the
hymen was not intact. She deposed that, before the examination the
Victim had sexual intercourse. She prepared the Medical Examination
Reports. Her further evidence show that, on 10.03.2022 the Appellant
was brought by the Police for medical examination and after noting his
identification marks, she medically examined the Appellant and found
him to be capable of having sexual intercourse and he was found to be
potent. It is true that, the evidence of the Medical Officer indicate that,
in her history Victim stated of love affair with the known person and
having sexual intercourse, that will not go to create dent in the
testimony of the Victim as discussed above. The medical evidence
corroborate the testimony of the Victim that there was sexual
intercourse before her medical examination. In the light of the Victim's
testimony as discussed above, absence of injuries on the Victim and the
Appellant becomes insignificant.
13. The other evidence is that of the Victim's Uncle, who is examined
as PW2. His evidence is in respect of absence of the Victim in the house
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from the night of 16.11.2021, lodging the Missing Report with the
concerned Police Station, finding the Victim after 20 to 22 days. Though
in the cross-examination of this witness, it has come that, the Victim
initially went voluntarily, he was not the eye witness to any of the
incident, therefore, the said admission will not affect the testimony of
the Victim.
14. The other evidence is that of the Panch Witnesses - PW3 and
PW4. Evidence of PW3 speak of drawing the Spot Panchanama below
Exh.27 of the place shown by the Victim. The evidence of PW4 is in
respect of seizure of the Motorcycle and the clothes of the Appellant. As
C.A. Reports show nothing incriminating, the seizure of the clothes
pursuant to Section 27 of the Indian Evidence Act will not be relevant.
The other evidence is of two Investigating Officers, wherein they have
deposed in respect of the investigation conducted by them.
15. The testimony of the Victim clearly attracts the presumption of
culpable mental state as provided under Section 30 of the POCSO on the
part of the Appellant. At the cost of repetition, it is observed that, the
Appellant was already married having children and his son was the
classmate of the Victim. There is nothing to show that the Presumption
was rebutted.
16. The above referred Judgments cited by the learned Advocate for
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the Appellant are of no assistance for the reason that, the factual aspects
in those matters were different. In Alamelu (supra), the Transfer
Certificate of the Victim was simply placed on record and the
Headmaster of the school was not examined and therefore, the entry in
the Transfer Certificate was not relied. It was held that, the Prosecution
failed to prove that the Victim therein was a minor at the relevant date.
Similarly, in Satesing @ Aaba Manga Thakare (Bhil) (supra), the age of
the Victim therein was not proved and the Appellant was found to be
aged 19 years and the case was found to be of emotional involvement.
16.1. The Judgment in Jamnalal (supra) cited by the learned APP
is in respect of Suspension of Sentence and therefore, need not be
discussed.
17. The conviction recorded by the learned Trial Court is for the
offences punishable under Section 376(3) which provides for the
punishment for committing Rape on woman under 16 years of age;
Section 376(2)(n) which is for commission of Rape repeatedly on the
same woman; Section 363 which is the punishment for kidnapping;
Section 366A which is in respect of procuration of minor girl; 506 which
is punishment for criminal intimidation of the I.P.C. and Section 4 which
is the punishment for penetrative sexual assault; Section 6 which is the
punishment for aggravated penetrative sexual assault; Section 8 which is
the punishment for sexual assault; and Section 12 which is the
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punishment for sexual harassment of the POCSO. The above discussed
evidence of the Victim coupled with the medical evidence on record
proves the essential ingredients for the above referred Sections of the
I.P.C. and POCSO, for which the Appellant is convicted. The Sentence
awarded by the learned Trial Court to the Appellant is in consonance
with the law. Consequently, no interference is called for in the impugned
Judgment and order and the Appeal fails. Hence, the following order is
passed.
ORDER
(i) The Appeal is dismissed.
(ii) The Record and Proceedings be sent back to the learned Trial
Court.
(iii) The fees of the learned Advocate appointed through legal aid to
represent Respondent No.2 - Victim is quantified at
Rs.10,000/- (Rs. Ten Thousand), which shall be paid by the
High Court Legal Services Sub-Committee, Aurangabad Bench.
( NEERAJ P. DHOTE )
JUDGE
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 03/12/2025 15:21:34
