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Bombay High Court
Nagpur Bench At Nagpur vs The State Of Maharashtra on 17 December, 2025
2025:BHC-NAG:14370
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL No. 652/2023
Bandu S/o Shankarrao Kuttarmare : APPELLANT
Aged 53 years, Occu. Service,
R/o Chandrapur,
Tq. & District Chandrapur
Vs.
1) The State of Maharashtra, : RESPONDENTS
Through Police Station Officer,
Police Station Ramnagar, Chandrapur,
Tah. & District Chandrapur
2) XYZ, Victim, (Deleted as per Order
Crime NO. 892/2018, Police Station Dt. 12-11-2024)
Ramnagar, Chandrapur, Tahsil and
District Chandrapur.
Mr. P.R. Agrawal, Advocate for the Appellant,
Mr. S.S. Hulke, Adll.P.P. for the Respondent.
CORAM: NIVEDITA P. MEHTA, J.
Date of reserving the judgment : 09-12-2025
Date of pronouncing the judgment : 17-12-2025
JUDGMENT :
The present appeal has been preferred by the appellant challenging the
judgment and order dated 20.06.2023, passed by the learned Additional Sessions
Judge, Special Court (POCSO), Chandrapur in Special (POCSO) Case No.
74/2018, whereby the appellant has been convicted for multiple offences under
the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences
Act, 2012 (POCSO Act).
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The appellant has been convicted for the offence punishable under Section
354A(ii) of the IPC and sentenced to undergo rigorous imprisonment for three
years and to pay a fine of ₹2,000/-, in default to suffer rigorous imprisonment for
six months.
He has further been convicted for the offence punishable under Section 6 of the
POCSO Act, read with Sections 376(2)(j)(k) and 376(3) of the IPC, and sentenced
to undergo rigorous imprisonment for twenty years and to pay a fine of ₹5,000/-,
in default to suffer rigorous imprisonment for twelve months.
The appellant has further been convicted for the offence punishable under Section
506 of the IPC, for which he has been sentenced to undergo rigorous imprisonment
for one year, and to pay a fine of ₹2,000/-, in default to suffer rigorous
imprisonment for three months.
However, the learned Trial Court acquitted the appellant of the offences punishable
under Sections 10 and 12 of the POCSO Act.
2. The prosecution case, in brief, is that on 06.09.2018, the informant, who
was working as a Counsellor in the District Child Protection Unit, Chandrapur,
lodged a report alleging that on the said date, the Chairperson of the Child Welfare
Committee, Ms. Varsha Jamdar, telephonically informed Shri Sakharkar, District
Child Protection Officer, regarding certain complaints made by the girls residing at
Sneh-Deep Balgruha. Acting on such information, Shri Sakharkar instructed the
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informant and a social worker, Ms. Pratibha Madavi, to visit the Balgruha.
personally and make necessary enquiries.
2.1 Accordingly, at about 10:40 a.m., both officers reached Sneh Deep
Balgruha. Each girl residing in the institution was individually interviewed
regarding her grievances. During this process, victim R, aged 14 years, studying in
the 8th Standard at Hinglas Bhawani Middle High School, disclosed that she had
been residing at the Balgruha. for about two months. She narrated that on the
14.07.2018, during the afternoon hours, the appellant had called her into the
office, asked her name, pressed her breasts, slapped her on the back, and
threatened her with dire consequences if she disclosed the incident to anyone. She
further stated that on the 21.07.2018, the appellant again called her under the
pretext of providing bathing soap from the office and told her that if she required
anything, she should demand the same from him. On the following day,
22.07.2018, the appellant called her to the office, made her sit on a chair, inserted
his hand inside her underwear, and when she objected, he pressed her mouth. At
that juncture, the sound of the iron gate opening was heard, and the appellant
immediately released her and pretended to examine some files. These occurrences
allegedly took place on 14.07.2018, 21.07.2018, and 22.07.2018.
2.2 Another girl, victim S, aged 16 years, resident of Vitthal Mandir Ward,
Chandrapur, also disclosed that on 29.08.2018, she had gone out of the Balgruha.
and returned late at night. On the next morning, i.e., 30.08.2018, between 11:00
a.m. and 12:00 noon, the appellant summoned her to the office, pressed her
breasts, slapped her on the back, and questioned her about her whereabouts on the
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previous day. The informant recorded the statements of both victim girls R and S,
and thereafter lodged the report.
3. Upon receiving the complaint, Police Station Ramnagar, Chandrapur
registered FIR No. 892/2018 for offences punishable under Sections 354A(ii),
376(2)(j)(k), 376(3), and 506 of the IPC, and Sections 6, 10, and 12 of the POCSO
Act. The Investigating Officer conducted the investigation, recorded statements of
witnesses, collected relevant documents, and filed the charge-sheet before the
competent Court.
4. The learned Trial Court framed charges under Sections 354A(ii), 376(2)(j)
(k), 376(3), 506 of the IPC, and Section 5(p) punishable under Section 6 POCSO
Act, Section 9(p) punishable under Section 10 POCSO Act and Section 12 of the
POCSO Act vide Exh.7. The appellant pleaded not guilty and claimed to be tried.
His defence was that of complete denial and false implication.
5. To substantiate its case, the prosecution examined eleven witnesses,
namely: PW-1 Pratibha Nilkanth Madavi, Social Worker (Exh.14), PW-2 Priya
Chandrabhan Pimpalshende, Informant (Exh.28), PW-3 Dr. Mrunalini Yuvraj
Jagne, Medical Officer (Exh.39), PW-4 Pushpa Pitambar Ambone, Caretaker at
Balgruha. (Exh.48), PW-5 Chandrashekhar Ratnakar Kundarpawar, Superintendent
of Balgruha. (Exh.50), PW-6 Victim R (Exh.55), PW-7 Dr. Ghansham Ramchandra
Patil, Retired Medical Officer (Exh.58), P.W. 8 Ashwini Shamrao Wakde, PSI
(Exh.61), P.W. 9 Raju Madhukar Thiratkar, Deputy Registrar At Nagar Parishad,
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Warora (Exh.65), PW 10 Avinash Sudhakarrao Reshimwale, Senior Clerk (Exh.70)
and PW 11 Savita Shrikrushna Kaware, API (Exh.79)
6. Upon appreciation of the evidence, the learned Trial Court held that the
victim had been subjected to aggravated penetrative sexual assault and that the
testimony of the victim inspired confidence. The learned Trial Court concluded that
the sole testimony of the victim was sufficient to establish the allegations against
the appellant, particularly in view of the presumption under Section 29 of the
POCSO Act. The learned Trial Court further observed that the defence had failed to
bring on record any material to rebut the said presumption or to cast doubt on the
victim's version. The learned Trial Court also recorded that the medical evidence
and other supporting witnesses corroborated the testimony of the victim.
Accordingly, it returned a finding of guilt for the offences punishable under
Sections 354-A(ii), 376(2)(j) and (k), 376(3), and 506 of the IPC along with
Section 6 of the POCSO Act. The learned Trial Court, however, noted that victim
"S" did not appear for recording of evidence; consequently, the allegations made by
her remained unproved.
7. It is pertinent to note that while imposing the sentence, the learned Trial
Court applied the amended Section 6 of the POCSO Act, brought into force in
16.08.2019, which prescribes a minimum punishment of 20 years' rigorous
imprisonment, extendable to imprisonment for the remainder of natural life, and
also providing for the sentence of death. In contrast, the unamended Section 6,
applicable at the time of the alleged offence, prescribed a minimum punishment of
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ten years' rigorous imprisonment, extendable to life imprisonment. The amended
provision reads as follows:
"6. Punishment for aggravated penetrative sexual assault.-- (1)
Whoever commits aggravated penetrative sexual assault shall be
punished with rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to imprisonment for life,
which shall mean imprisonment for the remainder of natural life of
that person, and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and
reasonable and paid to the victim to meet the medical expenses and
rehabilitation of such victim."
8. It is evident that the alleged offence in the present matter occurred on
14.07.2018, i.e., prior to the amendment of Section 6 of the POCSO Act which
came into force on 16.08.2019. Therefore, the sentence was required to be
imposed in accordance with the unamended Section 6, which prescribed a
minimum sentence of ten years' rigorous imprisonment. The amended provision,
being prospective in nature, could not have been applied to an offence committed
prior to its enforcement. Consequently, the sentence imposed by the learned Trial
Court on the basis of the amended Section 6 stands legally unsustainable and
warrants modification in accordance with the law applicable at the time of
commission of the offence.
9. It may be noted that Sections 376(2)(j) and (k) and Section 376(3) of the
IPC also prescribe stringent punishment for rape committed on a minor below
sixteen years of age, providing for rigorous imprisonment for a term not less than
ten years and twenty years respectively, extendable to imprisonment for the
remainder of the person's natural life, and also imposing liability to fine.
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10. I have heard Mr. Agrawal, learned Counsel appearing for the appellant,
and Mr. Hulke, learned Additional Public Prosecutor for the respondent-State, at
length.
11. Submissions on behalf of the Appellant:
The learned Counsel for the appellant, at the very outset, contended that
the sentence of 20 years' rigorous imprisonment imposed under Section 6 of the
POCSO Act is legally unsustainable. He submits that the enhanced minimum
punishment of 20 years under Section 6 came into force with effect from
16.08.2019, and therefore could not have been invoked for an incident occurring
prior to the said amendment. According to him, under the unamended Section 6,
the minimum punishment prescribed was 10 years, extendable to imprisonment
for life, and thus the sentence requires modification.
11.2 He further submits that the victim's version stands materially improved,
especially regarding the allegation of sexual intercourse, which she introduced for
the first time in her statement under Section 164 Cr.P.C. and her deposition before
the Court. The earliest version disclosed to the Snehadeep Balgruha. Committee,
and even her subsequent statement, only alleged that the appellant pressed her
breasts, slapped on her back and inserted his hand into her underwear. These
allegations alone, according to him, may at the highest constitute sexual assault,
but not penetrative sexual assault.
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11.3 It is submitted that a comparative evaluation of the victim's statement
before the Snehadeep Balgruha. Committee (Exh.51), her statement under Section
164 Cr.P.C., and her deposition reveal substantial embellishments in the
prosecution case. The allegation of sexual intercourse was never disclosed in her
earliest versions. Learned Counsel emphasizes that the absence of such a grave
allegation in the first opportunity available to the victim renders the later improved
version doubtful.
11.4. Learned Counsel further submits that the victim never disclosed any
allegation of forcible sexual intercourse either to the caretakers, fellow inmates, or
even to her relatives though opportunities existed. This conduct, according to him,
is inconsistent with normal human behaviour and casts a serious doubt on the
reliability of her improved version.
11.5 He also argues that the medical evidence does not support the allegation of
penetrative sexual assault. The Medical Officer has only stated that the hymen was
ruptured, which, as conceded in her deposition, may be attributable to several
causes other than sexual intercourse. The doctor also admitted that the rape kit
was not used, and the conclusions regarding penetrative sexual assault were
inconclusive. The finger-test findings, as noted by the doctor, are themselves
impermissible and carry no evidentiary value.
11.6. The learned Counsel submits that the omissions in the testimony of PW-4
were not duly proved as they were not confronted to the Investigating Officer,
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thereby weakening the prosecution case. He reiterates that no other witness has
supported the allegation of sexual intercourse.
11.7 He submits that at the highest, an offence under Section 9 of the POCSO
Act (sexual assault) may be made out, which is punishable under Section 10,
prescribing imprisonment of not less than five years, extendable to seven years.
The appellant, who has already undergone more than seven years of incarceration
since 08.09.2018, has thus served the maximum prescribed punishment even if
Section 10 were to be invoked.
11.8 He therefore prays that the conviction under Section 6 of the POCSO Act
be set aside, and considering the period already undergone, the appellant be
released forthwith. He placed reliance on the judgment in The State of Jharkhand
v. Shailendra Kumar Rai @ Pandav Rai, 2022 LiveLaw (SC) 890, and the judgment
of this Court in Gajanan @ Raju v. State of Maharashtra and others, Criminal
Appeal No. 309/2023.
12. Submissions on behalf of the State:
Per contra, Mr. Hulke, learned Additional Public Prosecutor, submitted that
the statements of victims R and S under Section 164 Cr.P.C. clearly indicate that the
appellant was sexually assaulting the girls residing in the Balgruha. He, however,
fairly conceded that victim R, in her statement under Section 164 Cr.P.C., narrated
only the incident of sexual assault and did not specifically allege sexual
intercourse. He also fairly stated that in the earliest statement recorded by the
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Snehadeep Balgruha. Committee, the allegation of sexual intercourse does not find
place, and the said disclosure was made for the first time only on 07.09.2018
before the police.
12.2 Learned Additional Public Prosecutor further submitted that victim S did
not enter the witness box, thereby restricting the scope of evidence only to victim
R. He also acknowledged that the medical evidence does not conclusively establish
penetrative sexual assault.
12.3. He fairly submits that the appellant has already undergone seven years of
imprisonment and that the amended Section 6, prescribing the minimum sentence
of 20 years, cannot apply in the present case as the incident is prior to 16.08.2019.
Under the unamended Section 6, the minimum sentence is ten years, extendable to
life, and therefore the Court may consider exercising discretion while determining
the appropriate sentence.
13. Now, coming to the evidence of PW1 - Pratibha Madavi, Panch Witness
from District Child Protection Unit: PW1, a social worker requisitioned by the
police, has acted as a panch for several procedural steps including spot
panchnama, seizure of victim's clothes, relevant service documents, institutional
records, blood samples, seizure of appellant's cloths, and electronic material. Her
testimony establishes the chain of custody of crucial material objects. She
consistently states that all panchnamas were drawn in her presence on different
dates, and she has explained the sequence of these events with precision. Her
deposition is natural, consistent, and free from material contradictions.
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13.1 The defence suggestion that PW1 signed the panchnamas at one time or
upon the say of the Institution is categorically denied, and nothing in cross-
examination discredits her credibility. She has given clear topographical details of
the spot, thus supporting the reliability of the spot panchnama. The presence of
PW1, an independent public servant with no prior enmity, lends assurance to the
procedural integrity of the investigation.
13.2 The minor omissions elicited in cross-examination do not shake her version
nor create any doubt about the authenticity of the seizure memos or spot
panchnama. Hence, PW1's testimony inspires confidence and stands accepted.
14. PW2 - Counsellor and First Informant: PW2 Priya Pimpalshende is a
crucial witness as she conducted enquiry on behalf of the District Child Protection
Unit and recorded the initial version of both victims. She has given a detailed
account of the victims narrating sexual harassment and sexual assault by the
accused. She promptly reduced these statements into writing (Exhs.29 & 30) and
thereafter lodged a report (Exh.31). Her conduct is consistent with the duties of a
counsellor dealing with children in distress.
14.1 The victims' narration to PW2 is spontaneous and independent. PW2 has
also cross-verified dates with institutional registers. Her evidence establishes the
initial version of the victims, which is crucial in sexual offence cases. Her presence
during in-camera police recording of victim statements further corroborates the
truthfulness of the victims.
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14.2 Cross-examination does not succeed in impeaching her credit. The defence
focuses on alleged lack of enquiry with other girls or staff, but the same is not
material, as corroboration from additional sources is not mandatory in sexual
assault matters. PW2 appears impartial, having no motive to implicate the accused
falsely. Hence, her testimony holds substantial probative value.
15. PW3 - Medical Officer: PW3 Dr. Mrunalini Jagne examined victim R on
07.9.2018 and found a ruptured hymen with one-finger admission, and opined
that it was a case of sexual assault. As per the Forensic Medical Examination
Report (Exh.42), the overall findings were consistent with assault or sexual
intercourse however final opinion was kept pending till receipt of FSL Report.
Though defence argued that hymenal rupture may occur due to physical activities,
PW3 clarified that her finding was based on clinical examination and not merely
on victim history.
16. The refusal of medical examination by victim No.2 has been duly recorded
and explained. It does not affect the case regarding victim R, whose medical
condition stands independently proved.
17. PW4 - Caretaker Pushpa Ambone: PW4 Caretaker of girl students, is
among the first to whom both victims disclosed the incident. She states that victim
S first complained on 23.08.2018 about molestation, and soon thereafter victim R
narrated in detail the repeated sexual assault committed by the accused. Her
evidence constitutes immediate corroborative disclosure, which carries significant
evidentiary value under Section 157 of the Evidence Act.
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Though PW4 admits she did not witness the act, her testimony about
disclosure is trustworthy and natural. Minor omissions regarding threats in her
police statement do not amount to material contradictions. These are normal
memory lapses and do not overshadow the core fact, both victims reported the
misconduct promptly to her.
18. The allegation that PW 4 deposed falsely due to institutional pressure is
neither substantiated nor probable. The sequence of reporting through her to the
Superintendent appears consistent and logical. PW4's evidence thus reinforces the
prosecution case.
19. PW5 - Superintendent Chandrashekhar Kundarpawar: PW5 is the
institutional head who received PW4's call on 24-08-2018 and promptly came to
the Balgruha. He states that both victims narrated that the accused pressed their
breasts, touched them inappropriately, and misbehaved sexually. He immediately
informed the Secretary, who made enquiry from the victims and PW 4 Pushpa and
immediately dismissed the accused. This demonstrates that the victims' version
was considered credible by the institution itself at the first opportunity.
20 PW5 has produced institutional records, committee statements (Exhs.51-
53) and documents seized by the police. The defence's attempt to portray his
inquiry as irregular is immaterial, as this is not a departmental proceeding but a
criminal trial. What matters is whether his evidence regarding victims' disclosure is
credible and it is consistent, spontaneous, and supported by PW4 and PW2.
14 apeal-652-2023-J.odt
No major contradiction is elicited in cross-examination to discredit him.
His evidence also explains the removal of the accused from service, which
constitutes conduct relevant under Section 8 of the Evidence Act, showing that the
allegations were taken seriously immediately.
21. PW6 - Victim R: PW6 is the most crucial witness. She gives a detailed and
graphic account of two incidents, first on 14.07.2018 involving molestation, and
second on 21.07.2018 involving forcible penile-vaginal penetration. Her narrative
is inconsistent across her statements, medical evidence, and testimony in Court.
21.1 Her description of being laid on the floor, accused pressing her mouth,
removing her clothes, penetrating her vagina, subsequent burning, bleeding, and
discharge, are all inconsistent with medical findings of ruptured hymen and pain.
Her account regarding threats also explains the delayed reporting.
21.2 There is no material contradiction brought in cross-examination. Her cross-
examination is lengthy but fails to show false implication, tutoring, or motive. The
defence suggestion about school distance or number of girls does not affect the
core issue of sexual assault. Her with time disclosure to co-residents and staff is
natural and consistent.
21.3. The victim's testimony alone, if credible, is sufficient for conviction in
sexual assault cases. Here, it stands further corroborated by medical evidence,
contemporaneous disclosures, institutional action, documentary record, and the
absence of enmity with the accused.
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22. PW-7: Dr. Ghansham Patil (Radiologist) : PW-7, the Radiologist, deposed
that on 08.09.2018 he conducted the ossification test of the victim and on the basis
of the radiological findings opined that the victim was "not less than 14 years and
not more than 15 years." He identified his signature on the x-ray report at Ex.59.
In cross-examination, the witness clarified that the ossification test is a
recognised scientific method for age estimation and denied the suggestions that
the margin of error must necessarily be ±2½ years, or that the report was
prepared by a technician or was merely his opinion unsupported by his own
examination. Nothing material was elicited to cast doubt on the genuineness of the
ossification report.
23. PW-8: Ashwini Shamrao Wakde, PSI: PW-8 stated that on 07.09.2018 she
was directed by the SDPO to take over investigation of Crime No. 892/2018. She
proceeded to the spot, issued letters to the District Child Welfare Officer for
securing panch witnesses (Ex.62), sent intimation to the panchas (Ex.15), and also
issued intimation to the photographer (Ex.63). She recorded the statements of the
victims R and S in the presence of the District Child Welfare Officer and later
handed over the case diary to the regular police officer of POCSO.
In cross-examination, she denied the suggestion that she recorded the
statements as per the narration of the District Welfare Officer. Her testimony is
largely formal and pertains to initial procedural steps.
24. PW-9: Raju Madhukar Thiratkar, Deputy Registrar (Births & Deaths), Nagar
Parishad, Warora Exhibits: Extract of Birth Register Exh.67; Birth Certificate
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Exh.68. PW-9 produced the Birth Register maintained by the Nagar Parishad,
Warora and proved the entry at Serial No. 699 showing the victim's date of birth as
07.07.2005, based on the report from Rural Hospital, Warora. He filed the certified
copy of the birth record at Exh.67 and identified the original Birth Certificate at
Exh.68. In cross-examination, he stated that the name of the child was later
mutated based on an application submitted by one Prabha Anandrao Ghorpade. He
denied suggestions that the date of birth was incorrectly entered or that the extract
was false. The defence could not shake the evidentiary value of the official birth
record.
25. PW-10: Avinash Sudhakarrao Reshimwale (Senior Clerk, F.E.S. Girls' High
School): PW-10 deposed that on receipt of a letter from the Police Station,
Ramnagar, the school Principal furnished the Leaving Certificate of the victim S
along with covering letters (Exh.72, Exh.73). The Leaving Certificate at Exh.74
bears his signature and reflects the date of birth of victim S as 12.10.2002. He
produced the Admission Register for the year 2010-11 and the extract thereof at
Exh.75 showing that the victim S were admitted to 5 th Standard on 09.05.2012,
coming from Mahatma Gandhi Primary School.
In cross-examination, he stated that admissions are generally granted on
the basis of the previous School's Leaving Certificate. He denied the suggestion
that the date of birth recorded in the school record was incorrect.
26. PW-11: Savita Shrikrushna Kaware, API: PW-11 is the primary
Investigating Officer. She deposed that after taking over the investigation on
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07.09.2018, she issued letters for securing panch witnesses (Exh.80) and drew the
spot panchanama (Exh.17) in the presence of panchas after issuing intimation at
Exh.16. She took photographs of the spot (Art. P-1 to P-10), issued requisitions to
Sneh-Deep Balgruha. for documents (Exh.81), referred both victims for medical
examination (Exh.40 and Exh.82), PW 11 seized medical samples and clothes of
the victim R and prepared seizure panchanama Exh.20 and Exh.18 respectively.
PW 11 recorded the statements of both victims and also obtained their age-related
documents through requisitions (Exh.83, Exh.84), sought the birth certificate of
victim R from Municipal Council, Warora (Exh.85), sought school records of victim
S (Exh.72), arrested the accused under Exh.86, seized his clothes and medical
samples (Exh.22, Exh.24), sent muddemal to C.A. (Exh.87), and forwarded the file
for recording the victims' statements under Section 164 CrPC (Ex.88). She also
seized documents from Sneh-Deep Balgruha. under Exh.19 and ultimately filed the
charge-sheet.
In cross-examination, PW 11 admitted that neither victim lodged the initial
report and that the case originated from documents seized from Sneh-Deep
Balgruha. She also admitted that she did not verify the victims' presence in their
respective schools at the time of incident and that she did not produce any
documentary proof of school timings or attendance on the relevant day. She denied
suggestions that the victims were in school during the alleged incident or that the
spot panchanama was falsely prepared in the police station. No material
contradiction was elicited, but the omissions do demonstrate certain investigative
lapses.
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27. The prosecution has examined PW-1 to PW-11 to substantiate the
allegations of sexual assault and penetrative sexual assault on the minor victim
residing in the Balgruha. The evidence of the official and panch witnesses broadly
supports the procedural steps of investigation, seizure of documents, and chain of
custody of the material objects. Their testimonies are largely formal and do not
create any substantive doubt against the prosecution. However, the core issue
requiring careful scrutiny relates to the nature of sexual act alleged, particularly in
view of the defence contention that the allegation of penetrative sexual assault is
an improvement and therefore unsafe to accept for sustaining a conviction under
Section 6 of the POCSO or Section 376 of the IPC.
28. PW-1, the District Child Protection Unit witness, PW-2 the Counsellor and
first informant, PW-4 the Caretaker, and PW-5 the Superintendent, all speak of the
victim disclosing sexual misconduct at the hands of the accused. Their testimonies
consistently establish that the victim complained of "misbehaviour" and "sexual
touching" by the accused. While they also refer to the victim narrating sexual
assault, their versions do not always explicitly delineate the act of penetration in
clear, specific terms. These earlier disclosures, recorded contemporaneously,
assume importance in determining whether the allegation of penile vaginal
penetration was indeed stated from the inception.
29. PW-6, the victim, has given a detailed and more elaborate account before
the Court describing penile-vaginal penetration. However, when her testimony is
juxtaposed with her earliest version before PW-2 (Exh.29) and with the disclosures
narrated by PW-4 and PW-5, it appears that the level of detail regarding
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penetration in Court is different than what was stated earlier. The improvements
are not merely elaborative but are qualitative in nature, inasmuch as the first
statement focused on molestation and sexual assault broadly, whereas the
deposition introduces more explicit assertions of penetration, accompanied by
graphic details.
30. It is well settled that improvements which introduce a new substratum of
the prosecution case cannot be lightly brushed aside, particularly when the case
rests substantially on the sole testimony of the victim. The victim is a child, and
the Court must remain conscious that minor variations are natural. Yet, where the
improved version materially alters the nature of the offence, from non-penetrative
sexual assault to penetrative sexual assault, the Court must examine such
embellishment with circumspection. In Krishan Kumar Malik vs. State of Haryana,
(2011) 7 SCC 130, the Hon'ble Supreme Court lays down as follows;
"31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of the
prosecutrix is sufficient provided the same inspires confidence and
appears to be absolutely trustworthy, unblemished and should be of
sterling quality. But, in the case in hand, the evidence of the
prosecutrix, showing several lacunae, which have already been
projected hereinabove, would go to show that her evidence does not
fall in that category and cannot be relied upon to hold the appellant
guilty of the said offences.
32. Indeed there are several significant variations in material facts
in her Section 164 statement, Section 161 statement (CrPC), FIR and
deposition in court. Thus, it was necessary to get her evidence
corroborated independently, which they could have done either by
examination of Ritu, her sister or Bimla Devi, who were present in
the house at the time of her alleged abduction. The record shows
that Bimla Devi though cited as a witness was not examined and
later given up by the public prosecutor on the ground that she has
been won over by the appellant."
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31. The Hon'ble Supreme Court in Nirmal Premkumar and Another v. State,
Rep. By Inspector of Police, 2024 SCC OnLine SC 260, made a reference to the
decision in Rai Sandeep alias Deepu vs. State (NCT of Delhi) and observed inter
alia that in cases where witnesses are neither wholly reliable nor wholly unreliable,
the Court should strive to find out the true genesis of the incident The Court can
rely on the victim as a "sterling witness" without further corroboration, but the
quality and credibility must be exceptionally high. The statement of the Prosecutrix
ought to be consistent from the beginning to the end (minor inconsistencies
excepted), from the initial statement to the oral testimony, without creating any
doubt qua the Prosecution's case. While a victim's testimony is usually enough for
sexual offence cases, an unreliable or insufficient account from the Prosecutrix,
marked by identified flaws and gaps, could make it difficult for a conviction to be
recorded. On this aspect, the appellant has force in contending that the
prosecution has not satisfactorily explained why the earliest disclosure lacked
specifics regarding penetration, which were later introduced for the first time.
32. The medical evidence of PW-3 shows a ruptured hymen and one-finger
admission. However, PW-3 admitted that hymenal rupture may be caused by
activities other than sexual intercourse. The medical examination was conducted
several weeks after the alleged incident, further reducing its probative weight for
conclusively proving penetration. While the medical findings are consistent with
sexual activity, they are not independently conclusive of penile penetration. Thus,
the medical evidence cannot be said to eliminate the possibility that the assault
21 apeal-652-2023-J.odt
was confined to sexual touching amounting to aggravated sexual assault under
Sections 9 and 10 of the POCSO Act.
33. The testimonies of PW-7 (Radiologist), PW-9 (Birth & Death Registrar),
and PW-10 (School Clerk) consistently establish the victim's minority. The defence
has not disputed the age. However, once penetration itself appears doubtful due to
improvements, the question shifts from "whether the victim was a minor subjected
to penetrative sexual assault" to "whether the victim was a minor subjected to
sexual assault". On the latter question, the evidence is overwhelmingly clear. The
disclosures to PW-4, PW-5, PW-2 and the consistent narration of molestation and
sexual touch by the accused fully satisfy the ingredients of aggravated sexual
assault under Section 9 of the POCSO Act.
34. Investigating lapses noted in PW-11's cross-examination, including non-
verification of school attendance and lack of documentation of time overlap, while
not entirely exonerating the accused, do create additional hesitation in accepting
an improved version of penetration. These lapses strengthen the defence argument
that the prosecution has not attained the high threshold of proof required to
sustain a conviction under Section 6 of the POCSO Act or Section 376 of the IPC,
but nevertheless fully establishes non-penetrative sexual assault.
35. It is thus reasonable to hold that the prosecution has proved sexual assault
of a minor, attracting Section 10 of the POCSO Act (Aggravated Sexual Assault),
but has not proved penetrative sexual assault beyond reasonable doubt. The
presence of improvements in the victim's deposition on material aspects, coupled
22 apeal-652-2023-J.odt
with the absence of explicit earlier disclosure and inconclusive medical opinion,
renders a conviction under Section 6 of the POCSO Act legally unsustainable.
36. Turning to the question of sentence, it is noted that the appellant has been
in custody for about seven years and has no criminal antecedents. The offence,
though undoubtedly serious, now stands reduced to one under Section 10 of the
POCSO Act, which prescribes a maximum punishment of five years, extendable up
to seven years, along with fine.
37. Having regard to the period of incarceration already undergone, the
mitigating circumstances on record, and the settled principle that the sentence
must be proportionate to the offence actually proved, the appellant is entitled to
substantial leniency. In these circumstances, the ends of justice would be
adequately met by confining the sentence to the period already undergone as he is
under incarceration since his date of arrest i.e. 08-09-2018. Consequently, the
conviction is liable to be altered from Section 6 of the POCSO Act to Section 10 of
the POCSO Act, with the sentence limited to the period already undergone. Hence,
I proceed to pass the following order:
ORDER
(i) Criminal Appeal is partly allowed.
(ii) The impugned judgment and order dated 20-06-2023 passed by the
learned Additional Sessions Judge, Special Court (POCSO), Chandrapur in
Special (POCSO) Case No. 74/2018 is hereby quashed and set aside.
23 apeal-652-2023-J.odt
(iii) The conviction and sentence for the offences punishable under Section
354-A(ii) and 506 of the IPC and fine as imposed by the trial Court is
maintained.
(iv) The conviction is altered from Section 6 of the POCSO Act to Section 10 of
the POCSO Act, with the sentence limited to the period already
undergone. The sentence of fine for the said offence is maintained.
(v) Rest of operative part of the trial Court's judgement is maintained.
(vi) The appellant be released forthwith, if not required in any other case.
(NIVEDITA P. MEHTA, J.)
MPDeshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 17/12/2025 17:25:43
