Bombay High Court
Munna Mithu Chauhan vs State Of Maharashtra on 12 June, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:23275 909 REVN 193.25.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.193 OF 2025
Munna Mithu Chauhan ...Applicant
Versus
State of Maharashtra ...Respondent
Mr. Pravin Naik i/by Ms. Kalyani Kabra, Advocate for Applicant.
Ms. S.D. Shinde, APP for the State.
CORAM: MADHAV J. JAMDAR, J.
DATED : 12th June 2025
JUDGMENT:
1. Heard Mr. Pravin Naik, learned Counsel for the Applicant
and Ms. Shinde, learned APP for the State of Maharashtra.
2. By the present Criminal Revision Application, challenge is to
the Order dated 29th August 2024 passed by the learned Special
Judge under POCSO Act, Sessions Court, Borivali Division,
Dindoshi, Goregaon, Mumbai in Miscellaneous Application Exhibit-
120 in POCSO Special Case No. 495 of 2019. By the said
Application, the Applicant i.e. Accused has sought prayers seeking
issuance of summons to the father, grandfather and grandmother
of the victim for recording their testimonies as defence witnesses.
By the impugned Order, the said Application has been dismissed.
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3. It is the submission of the learned Counsel for the Applicant
that the Charge in the matter has been altered and therefore, right
has accrued to the accused to call the witnesses for examining
them. It is the submission that as the victim was 7 years old, the
Charge was required to be framed under Section 376-AB of the
Indian Penal Code, 1860 ("IPC")and not under Section 376(2) (i)
of the IPC and altered Charge came to be framed against the
Accused on 6th February 2023, for the offence punishable under
Sections 376 AB of the IPC and therefore, it is necessary that the
father, grandfather and grandmother of the victim be allowed to be
examined for recording testimonies as defence witnesses. It is the
main submission that although the statements of these witnesses
are incorporated in the Charge-sheet, they have not been purposely
examined by the prosecution.
4. On the other hand, learned APP strongly opposed
interference in the impugned Order. It is her submission that the
alteration of Charge has nothing to do with recording of said
witnesses. She submitted that as these witnesses are not material
witnesses and therefore they have not been examined. She
submitted that the prosecution has examined the Informant i.e.
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mother of victim, victim and aunt of victim, who are material
witnesses, who were knowing about the incident in question. She
submitted that as far as father of the victim is concerned, he was
not aware about the said incident and the said incident was
informed to him by the mother of the victim, who has been
examined. She submitted that as far as grandmother is concerned,
she has been informed about the incident by the victim and the
victim has been examined. She submitted that the grandfather was
not the important witness and therefore, his statement was not
recorded by the Police
5. The main contention raised by the learned Counsel for the
Applicant that in view of alteration of the charge, he is entitled to
examine the father, grandmother and grandfather of the victim as
defence witnesses.
6. The impugned Order states that earlier the Charge was
framed under Section 376(2)(i) of the IPC and as the victim was
only 7 years old, the Charge was then altered to Section 376 AB of
the IPC.
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7. In view of the contention raised, learned Counsel for the
Applicant, it is necessary to set out Section 376(2)(i) of IPC, under
which earlier charge was framed.
"[376. Punishment for rape.--(1) Whoever, except in
the cases provided for in sub-section (2), commits rape,
shall be punished with rigorous imprisonment of either
description for a term which 384[shall not be less than
ten years, but which may extend to imprisonment for
life, and shall also be liable to fine].
(2) Whoever,--
(a) being a police officer, commits rape--
(i) within the limits of the police station to which such
police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody or in
the custody of a police officer subordinate to such police
officer; or
(b) being a public servant, commits rape on a woman in
such public servant's custody or in the custody of a
public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an
area by the Central or a State Government commits
rape in such area; or
(d) being on the management or on the staff of a jail,
remand home or other place of custody established by
or under any law for the time being in force or of a
women's or children's institution, commits rape on any
inmate of such jail, remand home, place or institution;
or
(e) being on the management or on the staff of a
hospital, commits rape on a woman in that hospital; or
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(f) being a relative, guardian or teacher of, or a person
in a position of trust or authority towards the woman,
commits rape on such woman; or
(g) commits rape during communal or sectarian
violence; or
(h) commits rape on a woman knowing her to be
pregnant; or
(j) commits rape, on a woman incapable of giving
consent; or
(k) being in a position of control or dominance over a
woman, commits rape on such woman; or
(l) commits rape on a woman suffering from mental or
physical disability; or (m) while committing rape causes
grievous bodily harm or maims or disfigures or
endangers the life of a woman; or
(n) commits rape repeatedly on the same woman, shall
be punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may
extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural
life, and shall also be liable to fine."
(Emphasis added)
8. As noted herein above, the Charge was altered to Section
376 AB of IPC, which reads as under:-
"376-AB. Punishment for rape on woman under
twelve years of age.-- Whoever, commits rape on a
woman under twelve years of age shall be punished
with rigorous imprisonment for a term which shall not
be less than twenty years, but which may extend to
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imprisonment for life, which shall mean imprisonment
for the remainder of that person's natural life, and with
fine or with death:
Provided that such fine shall be just and
reasonable to meet the medical expenses and
rehabilitation of the victim:
Provided further that any fine imposed under this
Section shall be paid to the victim."
(Emphasis added)
9. Thus, it is clear that under Section 376(2)(i) of IPC, the
Charge is with respect to a person committing rape on a woman
incapable of giving consent. As far as Section 376-AB of IPC is
concerned, the Charge is concerning punishment for rape on
woman under 12 years of age. Admittedly, age of the victim was 7
years when the incident took place and therefore the charge was
altered.
10. Thus, it is very clear that the reason given in the said
Application bearing Exhibit-120 about the alteration of charge has
nothing to do with issuing summons to the father, grandmother
and grandfather of the victim.
11. The other contention raised is that the father of the victim
and grandmother of the victim has not been deliberately examined
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by the prosecution, although, their statements are incorporated in
the Charge-sheet. However, learned APP is right in contending that
the father of the victim and the grandmother of the victim has no
personal knowledge about the incident in question as father of the
victim came to know about the incident from the mother of the
victim and grandmother has been informed about the incident by
the victim. Ms. Shinde, learned APP submitted that the material
witnesses have been examined.
12. Ms. Shinde, learned APP points out Section 35 of the
Protection of Children from Sexual Offences Act, 2012 ("POCSO
Act"), wherein it is specified that the trial under the provisions of
said Act has to be completed expeditiously. It is her submission that
from that angle, the material witnesses have been examined and as
the father and grandmother were not knowing about the incident
in question, they have not been examined.
13. Learned Counsel appearing for the Applicant relied on a
judgment of the Supreme Court in the case of Sundar Lal Vs. State
of Uttar Pradesh & Anr1. The facts of said case are totally different
and the said decision has no application to the present case.
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14. The learned Trial Court has observed that the list of
witnesses, which is now sought to be given by the Advocate for the
Accused had not been submitted at the stage of entering upon
defence on behalf of accused, subsequent to the evidence for the
prosecution having been recorded. It has been recorded that in fact
accused had filed an application bearing Exhibit-67 for issuing
summons to the witnesses for defence and had thereafter
examined 5 witnesses till 26th April 2022. On 29th April 2022, the
Advocate for the Accused had filed pursis bearing Exhibit-82
closing his evidence. Thus, the Trial Court has recorded that the
Accused has fully availed an opportunity to lead the evidence on
his behalf. In fact, the learned Trial Court has recorded that the
accused is now seeking to examine the said witnesses after almost
1½ years of examining initial defence witness.
15. Thus, in the facts and circumstances of this case, no
interference in the impugned Order is warranted.
16. Accordingly, Criminal Revision Application is dismissed,
however, with no order as to costs.
BHALCHANDRA
GOPAL (MADHAV J. JAMDAR, J.)
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