Suraj S/O. Raju Gaikwad vs State Of Mah. Thr. Pso, Ps, Ajni, Nagpur ...
2025 Latest Caselaw 3179 Bom

Bombay High Court

Suraj S/O. Raju Gaikwad vs State Of Mah. Thr. Pso, Ps, Ajni, Nagpur ... on 12 March, 2025

2025:BHC-NAG:2599




              Judgment

                                                              373 apeal317.23.24

                                            1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           NAGPUR BENCH, NAGPUR

                         CRIMINAL APPEAL NO.317 OF 2023

              Suraj s/o Raju Gaikwad,
              aged 30 years, occupation private,
              r/o Bajrang Nagar, Galli No.6,
              Nagpur, P.St.Ajni, Nagpur.
              Presently in Central Prison,
              Nagpur.
              Native Address: Rambag,
              Behind Majdoor Mill, P.St.Immamwada,
              Nagpur City.                     ..... Appellant.

                                    :: V E R S U S ::

              1. State of Maharashtra, through
              Police Station Officer,
              Police Station Ajni, Nagpur.

              2. XYZ Victim in Crime No.86/2018
              Regd.P.S.Ajni, Nagpur.           ..... Respondents.

              Shri M.V.Rai, Counsel for the Appellant.
              Shri V.A.Thakare, Addition Public Prosecutor for the Respondent
              No.1/State.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 12/02/2025
              PRONOUNCED ON : 12/03/2025

              JUDGMENT

.....2/-

Judgment

373 apeal317.23.24

1. By this appeal, the appellant (accused) has

challenged judgment and order dated 21.3.2023 passed

by learned District Judge-7 and Additional Sessions

Judge, Nagpur (learned Judge of the trial court) in

Special Criminal Case No.143/2018.

2. By the said judgment and order impugned, the

accused is convicted for offence punishable under Section

376(2)(f)(i)(j)(n) of the Indian Penal Code and

sentenced to undergo rigorous imprisonment for 20 years

and to pay fine Rs.10000/-, in default, to undergo further

simple imprisonment for six months.

He is further convicted for offence punishable

under Section 506 of the Indian Penal Code and

sentenced to undergo rigorous imprisonment for 1 year.

3. Brief facts of the prosecution case which are

necessary for disposal of the appeal are as under:

.....3/-

Judgment

373 apeal317.23.24

The victim aged about 10 years old was studying

in 5th Std. in the year 2018 having single parent mother

as her father is not alive and was residing with her

mother and brother. Her brother used to go for work and

she remains to be alone in the house after her school is

over. Her school timing was between 7:00 am to 11:00

am. As per the allegation, the accused, who is her

nearest relative and husband of her maternal aunt,

subjected her for forceful sexual assault on multiple

occasions by threatening her. The victim disclosed the

incident to her mother and after disclosure, on the

second day, her mother has lodged the report against the

accused. On the basis of the said report, the police

registered the crime and after registration of the crime,

wheels of the investigation starting rotating. During

investigation, the victim was referred to the medical

examination. The accused was arrested. The necessary

.....4/-

Judgment

373 apeal317.23.24

investigation was carried out and after completion of

investigation, chargesheet was filed against the accused.

4. Learned Judge of the trial court has framed the

charge vide Exh.9. The accused denied the charge and

claimed to be tried. In support of the prosecution case,

the prosecution has examined as many as 9 witnesses, as

follows:

     PW                    Names of Witnesses               Exh.
     Nos.                                                   Nos.
      1       Chandramohan        Mali,   the     police     22
              constable
      2       Jyotsana Sathavne, the lady police con-        23
              stable











                                                             .....5/-
 Judgment

                                                 373 apeal317.23.24

5. Besides the oral evidence, the prosecution placed

reliance on report Exh.25, FIR Exh.26, spot panchanama

Exh.29, medical report Exh.32, casualty card Exh.33,

medical report of the accused Exh.35, arrest panchanama

Exh.38, seizure memo Exh.41, requisition to CA Exh.42,

birth report Exh.46, birth certificate Exh.47.

6. On the basis of the oral as well as the documentary

evidence, the prosecution claimed that the case against

the accused is proved beyond reasonable doubt. All

incriminating evidence is put to the accused to obtain his

explanation as to the incriminating evidence appearing

against him by recording his statement under Section 313

of the CrPC. The defence of the accused is of total denial

and of a false implication as he performed the marriage

.....6/-

Judgment

373 apeal317.23.24

with the sister of the mother of the victim against the will

of all family members.

7. Learned Judge of the trial court appreciated the

evidence and held the accused guilty and sentenced him

as the aforesaid.

8. Being aggrieved and dissatisfied with the same, the

appeal is preferred by the accused on the ground that the

evidence adduced by the prosecution is not cogent and

reliable and not inspiring the confidence. There is

inordinate delay in lodging of the FIR and the said delay

is not explained. The evidence of the victim girl is not

corroborated by the medical evidence as the foundational

facts are not proved. The presumption under Section 29

will not attract. For all above these reasons, he prays for

acquittal of the accused.

.....7/-

Judgment

373 apeal317.23.24

9. Learned Additional Public Prosecutor Shri

V.A.Thakare for the State taken me through the entire

evidence on record and submitted that the victim girl is

of very tender age having single parent. The accused is

residing in her neighbour and related to her. She was

threatened by the accused after subjecting her for forceful

sexual assault. As the mother of the victim noticed

behaviour of the victim, she enquired with the victim by

taking her in confidence and, thereafter, the victim has

disclosed the said incident to her mother. Immediately,

the mother lodged the report on the next date. The delay

is to be ascertained from the certain circumstances like

the mother of the victim is not having any support as

there is no male member in the family. The people are

reluctant to lodge the report considering the stigma to

the character and, therefore, the said delay is not fatal to

the prosecution. He submitted that the victim was 9

.....8/-

Judgment

373 apeal317.23.24

years old at the time of the incident. Her evidence that

she was subjected for the sexual assault is corroborated

by the medical evidence that is evidence of PW6 Dr.Priya

Pratapan who testified that the victim has narrated the

history to her that she was sexually assaulted by her

uncle at her house and at the house of her uncle on

multiple occasions. She found hymen torn on genetial

examination. Though she is cross examined at length,

except the general proposition, that there are other

reasons to tear hymen, nothing is brought on record. The

medical certificate shows hymen is torn and edges were

ragged. No material is brought on record by the accused

to show that due to his marriage with the sister of mother

of the victim the entire family got annoyed. On the

contrary, the cross examination of the mother of the

victim shows that the accused was on visiting terms at

her house as well as at the house of her parents. If

.....9/-

Judgment

373 apeal317.23.24

totality of circumstances emerging on record is

appreciated, the victim has not any motive to falsely

implicate the accused and, therefore, the judgment

impugned in the appeal is proper and no interference is

called for.

10. This is one more case of sexual molestation or

assault of a child. The mother of the victim, who is

having utmost confidence on the accused being his

relative, left her child at home and the said trust was

betrayed as the daughter of the informant which

according to her was in safe hands was sexually assaulted

and molested. To prove the charge against the accused,

the prosecution has examined as many as nine witnesses.

To prove the age of the victim, prosecution has examined

PW9 Satyendra Patil who was serving with the NMC in

Births and Deaths Department. As per his evidence, birth

certificate shown to him is prepared by him on the basis

.....10/-

Judgment

373 apeal317.23.24

of the record available in the office. The date of birth of

the victim, as per the record, is 29.8.2008. The birth

report received is at Exh.46 and birth certificate is at

Exh.47. The victim has also narrated her birth date as

29.8.2008. The mother of the victim has also disclosed

the birth date of the victim. The mother of the victim and

the victim both were not cross examined on birth date of

the victim. Though PW9 Satyendra Patil is cross

examined, an attempt was made to show that the name

of the child was written afterwards in the birth certificate.

Perusal of Exh.46 shows that name of the parents is

mentioned in the birth report. Date of birth as per the

said birth report is 29.8.2008 and the same was informed

by the doctor from the GMC Hospital who was on duty.

On the basis of the said information, the entry was taken

in the record and birth certificate Exh.47 is issued which

is at Exh.47. The said birth certificate is issued in view of

.....11/-

Judgment

373 apeal317.23.24

Sections 12 and 17 of the Registration of Births and

Deaths Act, 1969. As per Rule 9 of the Maharashtra

Births and Deaths Registration Rules 1976, this certificate

is issued by the Sub Registrar acting under the provisions

of the Registration of Births and Deaths Act, 1969. The

Act mandates that the Registrar should discharge duties

in view of Section 7 of the said Act. Section 8 of the said

Act mandates that each head of the house to report birth

in the family to the Registrar. The Act provides for

maintenance for recording birth and death within local

area. That is how, certificate came to be issued by Sub

Registrar as per the provisions of Sections 12 and 17 of

the Registration of Births and Deaths Act, 1969. The

birth certificate as such is issued by the public officer and

it is a document forming record of the acts of the public

officer and, therefore, the same is a public document

within the meaning of Section 74 of the Indian Evidence

.....12/-

Judgment

373 apeal317.23.24

Act and the same is admissible in evidence in view of

Section 77 of the Indian Evidence Act. Section 17 of the

said Act provides for search of Birth Register and supply

of extract thereof by certifying the same by the Registrar

or other authorized Officer. Section 17 of the said Act

provides that such extract shall be admissible in evidence

for the purpose of proving birth or death to which the

entry relates. The birth certificate is in fact the extract of

Birth Register in respect of entry of birth of the victim

child and as such, admissible in evidence. Section 35 of

the Evidence Act makes it clear that if entry is made by

public servant in the official book in discharge of his

official duty, such entry becomes the relevant fact and

admissible in evidence. Section 35 of the Act lays down

that entry in any public, official book, register, record

stating a fact in issue or relevant fact and made by a

public servant in the discharge of his official duty

.....13/-

Judgment

373 apeal317.23.24

specially enjoined by the law of the country is itself the

relevant fact.

11. It is thus clear that it is an entry taken by the

public servant in discharge of his official duty while

performing official duty enjoined by law. It is thus clear

that the birth certificate issued by the statutorily

appointed authority or competent authority is relevant

and admissible.

12. Rule 12(3) of the Juvenile Justice (Care and

Protection of Children) Rules, 2007 also states that in

every case concerning a child or juvenile in conflict with

law, the age determination inquiry shall be conducted by

the Court or the Board or, as the case may be, the

Committee by seeking evidence by obtaining- (a) (i)the

matriculation or equivalent certificates, if available; and

in the absence whereof; (ii) the date of birth certificate

.....14/-

Judgment

373 apeal317.23.24

from the school (other than a play school) first attended;

and in the absence whereof; (iii) the birth certificate

given by a corporation or a municipal authority or a

panchayat; (b) and only in the absence of either (i), (ii)

or (iii) of clause (a) above, the medical opinion will be

sought from a duly constituted Medical Board, which will

declare the age of the juvenile or child. In case exact

assessment of the age cannot be done, the Court or the

Board or, as the case may be, the Committee, for the

reasons to be recorded by them, may, if considered

necessary, give benefit to the child or juvenile by

considering his/her age on lower side within the margin

of one year, and, while passing orders in such case shall,

after taking into consideration such evidence as may be

available, or the medical opinion, as the case may be,

record a finding in respect of his age and either of the

evidence specified in any of the clauses (a)(i), (ii), (iii) or

.....15/-

Judgment

373 apeal317.23.24

in the absence whereof, clause (b) shall be the conclusive

proof of the age as regards such child or the juvenile in

conflict with law.

13. In the light of the above legal position, the birth

entry taken by the office of PW9 Satyendra Patil

sufficiently proves the age of the victim and and is

admissible in evidence in view of Section 35 of the Indian

Evidence Act

14. Now, let us examine the evidence of the victim and

the mother of the victim.

15. The victim is examined vide Exh.27. Her

competency is tested in view of Section 118 of the

Evidence Act and after recording satisfaction that the

victim is competent witness her evidence is recorded.

The evidence shows that at the relevant time, in the year

2018, she was studying in 5th Std. The accused is

.....16/-

Judgment

373 apeal317.23.24

husband of her aunt. She used to be alone in the house

as her mother was attending the work being she is the

only earning member of the family as the victim has

already lost her father. Her brother used to come at

home at 5:00 pm and her school timing was 7:00 am to

11:00 am. She specifically stated that the accused

used to come to her house and press her mouth subjected

her for forceful sexual assault. She narrated the incident

in detail by describing the act of the accused. Her

evidence further shows that she was threatened not to

disclose the incident to anybody by giving her life threats

as well as by paying Rs.10/- to her. This act was repeated

by the accused on 2-4 occasions. She disclosed the said

incident to her mother. Her evidence further shows that

she has disclosed the incident to the doctor when she was

taken for medical examination. Her cross examination

shows that her aunt is also doing the household work and

.....17/-

Judgment

373 apeal317.23.24

leaving the house in the morning and returning the home

at 5:00 pm. She specifically admitted that she is unable

to recollect on which date she disclosed the incident to

her mother. Much stress was given by the defence on the

admission of the victim that she disclosed the incident to

her mother 2-3 months prior, but there is no clarification

as to whether the incident was disclosed by her 2-3 moths

prior to lodging the report or before recording her

evidence. Rest of the cross examination is in denial form.

16. To corroborate her version, the prosecution placed

reliance on the evidence of the mother of the victim. She

narrated that she observed her daughter used to be

remained silent, was in a scared condition, and used to

sleep and, therefore, she took her daughter in confidence

that, thereafter, the victim disclosed to her that the

accused forcefully sexually assaulted her and threatened

her. On the next date, she has lodged the report about

.....18/-

Judgment

373 apeal317.23.24

the incident. Her cross examination shows that some

omissions are brought on record that she has not

narrated before the police that her daughter used to be

remained silent, was in a scared condition, and used to

sleeps. She has not disclosed that the accused has

threatened her daughter. If these omissions are

considered in the light of report Exh.25, it is not that the

mother of the victim has not stated anything about the

behaviour of the victim.

17. Recital of the report shows that she has observed

that the victim was restless and not taking food properly

and, therefore, the said omission is not material. Further

cross examination shows that marriage of her sister and

the accused was love marriage. She admitted that her

husband died and she was residing separately from her

husband before his death. Cross examination further

.....19/-

Judgment

373 apeal317.23.24

shows that the accused used to visit the house of her

parents before his marriage.

Thus, cross examination shows that the accused

was visiting the house of the parents of the mother of the

victim prior to his marriage with the sister of the mother

of the victim.

18. The prosecution further examined PW6 Dr.Priya

Pratapan to corroborate the version of the victim. She

testified vide Exh.31 that the victim was brought for

medical examination. She obtained the consent of the

victim's mother before examination. The victim gave

history that she was sexually assaulted by her uncle at

her home as well as at the home of her uncle on multiple

occasions. She found on examination of the victim that

hymen of the victim was torn. The victim was brought

for examination after fifteen days of the alleged incident.

.....20/-

Judgment

373 apeal317.23.24

The only admission brought on record during cross

examination is that there are other reasons for tearing of

the hymen. Perusal of the medical certificate reveals that

hymen shown to be torn and edges shown to be ragged.

19. Besides the oral evidence of these witnesses PW1

Chandramohan Mali and PW2 Jyotsana Sathavne are

examined to prove the circumstance that the victim and

accused are taken for medical examination. PW5 Sharad

Ganvir is examined to prove various panchanamas

including spot panchanama Exh.29. Recital of the spot

panchanama shows that the house of the victim is

situated in two storied building. The house of the

accused is also in the same building. Thus, it reveals

from the spot panchanama that victim and accused are

residing in the same building.

.....21/-

Judgment

373 apeal317.23.24

20. Perusal of the cross examination of the victim and

the mother of the victim shows the fact that school timing

of the victim, the mother of the victim is attending the

work and the wife of the accused is also attending the

work is not denied and challenged.

21. PW7 Kailash Magar has carried out initial

investigation and PW8 Nisha Bhute is also investigating

officer who completed the investigation and submitted

the chargesheet against the accused.

22. On appreciation of the evidence, the question is,

whether testimony of the child witness can be relied upon

for basing conviction.

23. The Hon'ble Apex Court in the case of Radhey

Shyam vs. State of Rajasthan, reported in (2014)5 SCC

389 has laid down the law regarding appreciation of

.....22/-

Judgment

373 apeal317.23.24

evidence of child witness. Paragraph No.12 of the said

judgment reads as under:

"12. In Panchhi and ors, National Commission for Women vs. State of UP and ors, AIR 1998 SUPREME COURT 2726, after reiterating the same principles, this Court observed that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness is an easy pray to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court is that

.....23/-

Judgment

373 apeal317.23.24

the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness's evidence.

If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. We will scrutinize PW-2 Banwari's evidence in light of the above principles.

24. The victim as seen from her evidence appearing to

be the witness of truth. It is not the defence of the

accused that she is tutored witness. Even there is no

suggestion that she is a tutored witness. Her evidence

also nowhere shows that she is tutored witness.

.....24/-

Judgment

373 apeal317.23.24

25. As a rule prudence, let us find out whether the

evidence of the victim is corroborated by other evidence

available on record.

26. The victim has disclosed the incident to her mother

as the mother has enquired with her by observing the

change in behaviour. Thereafter, immediately, report was

lodged and the victim was medically examined. Dr.Priya

Pratapan medically examined her and on medical

examination, she found that hymen of the victim was

torn. Though the attempt was made that there are other

reasons for tearing of the hymen, the victim was not cross

examined to bring on record the said reason to show that

the hymen was not torn due to the sexual assault, but

due to the other reasons. It is vehemently submitted that

no injuries are found on the person of the victim. As

regards objection about medical evidence that no injuries

are found on the person of the victim, the said objection

.....25/-

Judgment

373 apeal317.23.24

cannot be entertained for the reason that law does not

require or make it imperative for the prosecution to

corroborate its version always by way of medial evidence.

27. It is now well settled that absence of the injuries

on the person of the prosecutrix does not lead to any

inference that the accused has not committed forcible

sexual intercourse on the victim. Absence of mark of

injuries on the person of the victim cannot be adopted as

formula to disbelieve the version of the victim. It will all

depend on the facts and circumstances of each case.

Absence of injuries on the person of the prosecutrix is not

necessarily an evidence of falsity of the allegation or an

evidence of consent on the part of the prosecutrix. The

absence of visible marks of injuries on the person of the

prosecutrix on the date of her medical examination

would not necessarily mean that she had not suffered any

.....26/-

Judgment

373 apeal317.23.24

injuries or that she had offered no resistance at the time

of commission of the crime.

28. In State of Tamil Nadu vs. Ravi @ Nehru, reported

in 2006 (10) SCC 534 the Hon'ble Apex Court ruled that

"rape" is crime and not a medical condition. "Rape" is a

legal term and not a diagnosis to be made by the medical

officer treating the victim. The only statement that can be

made by the medical officer is that there is evidence of

recent sexual activity. Whether the "rape" has occurred

or not is a legal conclusion, not a medical one. That is

the reason why, even the opinion of the doctor that there

was no evidence of sexual intercourse or rape is at times

held to be not sufficient to disbelieve the accusation of

the rape by victim.

29. In the light of the above discussion, here, in the

present case, allegations are made by the victim against

.....27/-

Judgment

373 apeal317.23.24

her uncle. There is no reason for false implication.

Though defence suggested that the love marriage

between accused and sister of mother of the victim is

disliked by the family members, the cross examination of

mother of victim itself shows that the accused was

visiting the parents of the mother of the victim itself is

sufficient to show that relationship between the accused

and his wife in the nature of love relationship was

accepted by the family members. There is no other

reason brought on record showing enmity between two

families. Even accepting the enmity or strained

relationship cannot be a reason for the false implication.

In fact, cross examination of the mother of the victim as

well as victim shows that both families were visiting on

each other's house. In the light of admissions given

during the cross and when there is no other evidence to

show that the victim has ulterior motive to implicate the

.....28/-

Judgment

373 apeal317.23.24

accused in the false case, it hardly needs to be mentioned

that rape is a ghastly act which leaves the victim

shattered for the life as it causes not only physical but

emotional and psychological trauma to the victim.

Sexual activities with young girls of immature age have a

traumatic effect on them, which persists throughout their

life and often destroys their whole personality. the victim

of a sexual assault is not an accomplice, but she is a

victim of lust of another person. She stands at a higher

pedestal than that of an injured witness. Evidence of

victim of rape case is required to receive same weight as

is attached to evidence of an injured witness. If totality of

circumstances emerging on record discloses that the

victim of such crime does not have any motive to falsely

implicate the accused, then, it is not required to seek

corroboration to her evidence and the court generally

needs to accept her evidence. While dealing with cases of

.....29/-

Judgment

373 apeal317.23.24

sexual assault on females of tender ages, the court is

expected to shoulder great responsibility and is required

to deal with such cases sensibly. Broader probabilities of

the prosecution case are required to be examined in such

crimes and the court is not expected to get swayed by

minor contradictions or insignificant discrepancies in the

evidence of prosecution which does not go to the core of

the prosecution case which case requires to be thrown

away.

30. The defence has not disputed the fact that the

victim was ten years old at the time of the incident. The

age of the victim is also proved by the prosecution. From

the contents of the deposition of the victim as to whether

she has turned or not inference can be drawn.

Deposition of child witness needs to be examined and

tested against formal statement of such witness and so

also in the light of all attending circumstances. The basic

.....30/-

Judgment

373 apeal317.23.24

principle of criminal jurisprudence is that the prosecution

must establish the guilt of the accused by cogent and

reliable evidence and the burden always rest on the

prosecution to prove guilt beyond all reasonable doubt.

The same principle is applicable to the cases of sexual

offences against the persons of tender age. After applying

all tests, nothing is on record to show that there was any

ulterior motive to implicate the accused falsely. On the

contrary, the evidence of the victim is inspiring

confidence. Her sole testimony is found to be truthful.

In fact, there is no need of any corroboration.

31. The another ground raised by the accused is that

there is inordinate delay in lodging of the FIR.

32. Learned Additional Public Prosecutor for the State

vehemently submitted that mere delay in lodging of the

FIR is not sufficient to disbelieve the case of the

.....31/-

Judgment

373 apeal317.23.24

prosecution. Delay in lodging of the FIR in sexual

offences has to be considered with different yard sticks.

In sport of his contentions, he placed reliance on the

decision in the case of Satpal Singh vs. State of Haryana,

reported in (2010)8 SCC 714 wherein the Hon'ble Apex

Court held that in a rape case the prosecutrix remains

worried about her future. She remains in traumatic state

of mind. The family of the victim generally shows

reluctance to go to the police station because of society's

attitude towards such a woman. It casts doubts and

shame upon her rather than comfort and sympathise with

her. Family remains concern about its honour and

reputation of the prosecutrix. It has been further

observed that no straight jacket formula can be laid down

in this regard. In case of sexual offences, the criteria may

be different altogether. As honour of the family is

involved, its members have to decide whether to take the

.....32/-

Judgment

373 apeal317.23.24

matter to the court or not. In such a fact-situation, near

relations of the prosecutrix may take time as to what

course of action should be adopted. Thus, delay is bound

to occur. This Court has always taken judicial notice of

the fact that "ordinarily the family of the victim would

not intend to get a stigma attached to the victim. Delay in

lodging the First Information Report in a case of this

nature is a normal phenomenon.

33. In Phool Singh vs. The State of Madhya Pradesh,

reported in (2022) 2 SCC 74 the Hon'ble Apex Court by

referring the judgment in the case of State of Punjab vs.

Gurmit Singh, reported in (1996) 2 SCC 384 held that

there is no reason to doubt and trustworthiness of the

prosecutrix.

34. In State of Punjab vs. Gurmit Singh supra the

Hon'ble Apex Court observed that the courts must, while

.....33/-

Judgment

373 apeal317.23.24

evaluating evidence, remain alive to the fact that in a

case of rape, no self-respecting woman would come

forward in a court just to make a humiliating statement

against her honour such as is involved in the commission

of rape on her. In cases involving sexual molestation,

supposed considerations which have no material effect on

the veracity of the prosecution case or even discrepancies

in the statement of the prosecutrix should not, unless the

discrepancies are such which are of fatal nature, be

allowed to throw out an otherwise reliable prosecution

case. The inherent bashfulness of the females and the

tendency to conceal outrage of sexual aggression are

factors which the Courts should not over-look. The

testimony of the victim in such cases is vital and unless

there are compelling reasons which necessitate looking

for corroboration of her statement, the courts should find

no difficulty to act on the testimony of a victim of sexual

.....34/-

Judgment

373 apeal317.23.24

assault alone to convict an accused where her testimony

inspires confidence and is found to be reliable.

35. Though learned counsel for the accused placed

reliance on Criminal Appeal No.584/2022 (Sikandar

Zakari Chouhan vs. State of Maharashtra) decided by this

court on 26.11.2024 and Criminal Appeal NO.882/2022

(Surendra s/o Dayaram Bobde vs. The State of

Maharashtra) decided by this court on 5.12.2024, the

said judgments can be differentiated on the facts and the

same are not helpful to the accused.

36. As far as ground of delay is concerned, the

evidence shows that victim has disclosed the incident to

her mother and on the second day she lodged the report.

The delay is to be considered in the light of the fact that

the mother of victim is not having support and she is only

parent looking after her children. Penetrative sexual

.....35/-

Judgment

373 apeal317.23.24

assault on the victim was shock for her and, therefore,

immediately lodging of the FIR is not expected from her.

Being a mother, she requires some time to approach the

police station and lodge report. As observed in catena of

decisions, that delay is to be considered in the light of

facts and circumstances of that case, such delay is not

always fatal to the prosecution.

37. After re-appreciating the entire evidence, it reveals

that the victim who is niece of the accused was subjected

for sexual assault by him. He has betrayed the trust of

the small child who is having trust on the accused being

her uncle. Learned Judge of the trial court appreciated

all these aspects and considering evidence on record,

rightly convicted the accused.

38. In the light of the above foregoing discussion, no

infirmity can be found in the judgment impugned in the

.....36/-

Judgment

373 apeal317.23.24

appeal in view of the Criminal Law Ordinance 2018

which says that whoever commits "rape" on girl under

twelve years of age shall be punished with rigorous

imprisonment for a terms which shall not be less than

twenty years, but which may extend to imprisonment for

life for the remainder of that person's natural life with

fine or with death.

39. In this view of the matter, the appeal being devoid

of merits and liable to be dismissed, the same is

dismissed.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 17/03/2025 10:00:58