Kishor Shamrao Dhale vs State Of Mah. Thr. Pso, Ps Civil Lines, ...
2025 Latest Caselaw 225 Bom

Bombay High Court

Kishor Shamrao Dhale vs State Of Mah. Thr. Pso, Ps Civil Lines, ... on 8 May, 2025

2025:BHC-NAG:4957




              Judgment

                                                                  407 apea477.23

                                             1

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

                          CRIMINAL APPEAL NO.477 OF 2023

              Kishor Shamrao Dhale,
              aged about 34 years, occupation:
              driver, r/o Geeta Nagar, Near
              Emrald Colony, Akola, taluka and district
              Akola.                             ..... Appellant.
                                    :: V E R S U S ::
              1. State of Maharashtra,
              through Police Station Officer, Police
              Station Civil Lines, Akola, district
              Akola.

              2. XYZ in Crime No.337/2014,
              Police Station, Civil Lines Akola,
              district Akola.                    ..... Respondents.

              Shri H.M.Mohta, Counsel for the Appellant.
              Mrs.S.S.Dhote, Additional Public Prosecutor for Respondent
              No1/State.
              Ms.Mitisha Kotecha, Counsel Appointed for Respondent No.2/Victim.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 21/04/2025
              PRONOUNCED ON : 08/05/2025

              JUDGMENT

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

challenged judgment and order dated 16.6.2023 passed

.....2/-

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407 apea477.23

by learned Additional Sessions Judge, Akola (learned

Judge of the trial court) in Sessions Case No.226/2014.

2. By the said judgment impugned in the appeal, the

accused is convicted for offence under Section 376(2)(f)

of the Indian Penal Code and sentenced to undergo

rigorous imprisonment for 10 years and to pay fine

Rs.25,000/-, in default, to undergo simple

imprisonment for 1 month.

3. Brief facts of the prosecution case emerged from

the police papers and recorded evidence are as under:

The accused is stepfather of the victim girl who

was 14 years of age at the time of the incident. As per

allegations, the victim girl was residing along with her

mother; three sisters; the accused, and her cousin. On

20.9.2014, her cousin brother was missing and, therefore,

her mother and aunt had been to police station to lodge a

.....3/-

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report. At that time, the accused asked the mother of the

victim girl to go to Bhusawal as his aunt was sick and,

therefore, the mother directly went from police station to

Bhusawal. On the same night, when the victim girl and

her three sisters were sleeping at home, at about 12:00

am, the accused came and consumed liquor and subjected

the victim girl for sexual assault by threatening her. As

per the allegations, sisters of the victim girl witnessed the

victim girl when she was disrobed and also wearing

underwear on his person. Thereafter, the victim girl

narrated the incident to her mother by telephonic call.

Her mother returned back to home at 12:00 pm and along

with her mother, she approached police station and

lodged a report. On the basis of the said report, the

police registered the crime against the accused.

4. After registration of the crime, wheels of

investigation started rotating. The victim girl was

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referred for medical examination. The accused was

arrested. The investigating officer has visited the alleged

spot of the incident and drawn spot panchanama. The

samples of the victim girl and the accused are obtained.

Their clothes are also seized and the same are forwarded

for forensic analysis. After completion of the

investigation, chargesheet is filed against the accused.

5. Learned Judge of the court below framed charge

against the accused vide Exh.18. The contents of the

charge are explained to the accused in Marathi Language

and he pleaded not guilty. In support of the prosecution,

the prosecution examined as many as 11 witnesses, which

are as follows:

     PW                  Names of Witnesses              Exh.
     Nos.                                                Nos.

panchanama and seizure of clothes of the victim girl.

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and seizure of clothes of the victim girl.

clothes of the accused.

6. Besides the oral evidence, the prosecution placed

reliance on seizure panchanama of clothes of the accused

Exh.36, requisition to medical officer Exh.40, medical

certificate Exh.41, report Exh.61, FIR Exh.62, seizure

memo Exh.63, statement under Section 164 of the CrPC

of the victim girl Exh.64, age determination test Exh.82,

arrest panchanama Exh.95, spot panchanama Exh.96,

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letter to CWC Exh.97, requisition to the Chemical

Analyzer Exh.98, Chemical Analyzer's Report Exh.99.

7. All incriminating evidence is put to the accused by

recording his evidence under Section 313 of the CrPC.

The defence of the accused is of total denial and of false

implication due to dispute between him and his wife the

mother of the victim girl.

8. Heard learned counsel Shri H.M.Mohta for the

accused; learned Additional Public Prosecutor

Mrs.S.S.Dhote for the State, and learned counsel

Ms.Mitisha Kotecha appointed for the victim.

9. Learned counsel for the accused Shri H.M.Mohta

for the accused, submitted that panchas PW1 Vikas

Jadhav; PW2 Vishwambhar Muthad, and PW3 Vilas

Pundge have not supported the prosecution case. The age

of the victim girl is not proved by the prosecution. The

.....7/-

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evidence of the victim girl is not trustworthy as

inconsistent evidence is adduced by the victim girl and

her sisters. The evidence of the mother of the victim

girl, who was not present at the time of the incident, is

also not trustworthy and not inspiring the confidence. It

reveals from the cross examination of the mother of the

victim girl that there was dispute between her and the

accused, who is her second husband. The mother of the

victim girl admitted that she had no cordial relation with

the accused after the incident. The evidence of the victim

girl and the mother is also not consistent. There is no

corroboration to the evidence of the victim girl. In view

of that, the judgment impugned in the appeal is liable to

be quashed and set aside.

10. Per contra, learned Additional Public Prosecutor for

the State supported the judgment impugned in the appeal

and submitted that there is no reason for the victim girl to

.....8/-

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implicate the accused falsely. The evidence of the victim

girl is corroborated by her sister who witnessed the

accused and the victim girl in a disrobed condition. The

medical evidence is also supporting. For all above these

reasons, the judgment impugned in the appeal calls for no

interference.

11. Learned counsel appointed for the victim girl

supported the judgment impugned in the appeal and

submitted that learned Judge of the trial court has rightly

considered the aspect that the victim girl was subjected

for sexual assault by the accused, which is substantiated

by medical evidence. In view of that, the

judgment impugned in the appeal requires no

interference.

12. As per the prosecution case, at the time of the

incident, the victim girl was about 14 years of age. She

.....9/-

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has narrated her birth date as 20.9.2014. She was

studying in school at the relevant time. The victim girl

was having three sisters. The cross examination of the

victim girl shows that as far as her age is concerned, the

same is not challenged during the cross examination.

Admittedly, no document is produced by the victim girl or

investigating officer has also not collected either her birth

certificate or the school leaving certificate wherein she

was firstly admitted. The school leaving certificate

though brought on record, the same is not proved by the

prosecution and the same is also not from the school

wherein she was firstly admitted. The victim girl was

referred for the ossification test.

13. PW9 Ajay Behade, Radiologist, is examined by the

prosecution to prove the age of the victim girl. His

evidence shows that he was a Medical Officer in

Radiology Department. He received X-Ray plates of the

.....10/-

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victim girl to seek his opinion as to the age determination.

He prepared X-Ray Report and opined that the age of the

victim girl was less than 17 years. During cross

examination, he admitted that the margin of 2 years is

not applicable as he ascertained the age of bony age

wherein such margin is not applicable. He further stated

that being Radiologist, his duty was to ascertain the bony

age on the basis of the X-Ray.

The evidence of the said witness shows that he has

determined bony age of the victim girl. Admittedly,

neither the birth certificate nor school leaving certificate,

wherein she was firstly admitted, was produced by the

prosecution.

14. 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

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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

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

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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

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.

15. Thus, in view of the evidence adduced by the

prosecution, the age of the victim girl is not proved.

16. The accused is facing charge that he subjected a

minor girl (the victim girl) for forceful sexual assault and

thereby committed offence punishable under Section

376(2)(f) and 376(2)(i) of the IPC.

17. To substantiate the said charge, the prosecution

mainly placed reliance on the evidence of the victim girl,

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examined vide Exh.60. There is no dispute as to the fact

that the accused is her stepfather as her mother married

with the accused. Her evidence shows that she was

residing along with 3 sisters, a cousin brother, her mother,

and the accused at the time of the incident. On the day of

the incident, her mother had been to Bhusawal as the

accused has sent her to see his aunt. She further deposed

that on that night, when she was sleeping at home with

her sisters and a cousin brother, the accused came home

and consumed liquor. Then, he woke up her and asked to

massage his legs. Then, he forced her to fall down and

subjected her for the forceful sexual assault by disrobing

her. He also assaulted her when she was lying disrobed.

Her sister saw her. Thereafter, she became unconscious.

Her sister sprinkled water and put clothes on her. Her

mother returned back home in the morning. She narrated

the incident. Thereafter, she approached the police

.....14/-

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station and lodged the report at Civil Lines Police Station,

which is at Exh.61 and FIR is at Exh.62. Her clothes

"kurti" is at Article-A and "green salwar" is at Article-B.

The seizure of clothes panchanama is at Exh.63.

Her cross examination shows that her mother is

staying separate from her real father since last 15 years.

She further admitted that her mother and maternal aunt

both were wives of her father.

Her further cross examination shows that her

marriage was performed and the accused was present in

her marriage. She further admitted that her mother was

having love affair with the accused and they married with

each other. The accused was residing with them at their

house after marriage. The accused was bearing expenses

of his mother and other family members.

.....15/-

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The cross examination further shows that she is

acquainted with person Krushna Ingle against whom she

gave report to the police in the year 2018-2019 that he

had kidnapped her by Purna Police Station, district

Parbhani. Subsequently, the matter was compromised

between them. She further admitted that she was

disliking the accused staying with her and her mother. In

para No.12, during the cross examination, omissions are

brought on record which show that she has stated before

the police that the accused woke up her. She has also not

stated the same in her statement as well as statement

taken by the Member of CWC. She has also not stated

that she was lying in disrobing condition and her sister

put clothes on her and she was unconscious. She also

stated that she raised shouts, however the accused put

hands on her mouth at the time of the incident. The

.....16/-

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accused was present after the incident and went away in

the morning.

18. To corroborate the version of the victim girl, the

prosecution has examined PW6 her younger sister, who

testified that on the day of the incident, her mother had

been to other place. She along with sisters was at home.

When she was sleeping, she heard voice of crying and,

therefore, she woke up. The accused asked her to sleep,

otherwise he would kill her. When she woke up, she saw

that the victim girl was crying and her stepfather was

having only underwear on his person and the victim girl

was in a disrobed condition. Her cross examination

shows that the accused was residing with them. There

was only one house in front of their house.

Her evidence entirely is of omission as far as her

deposition that when she woke up, her sister was crying.

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Her stepfather was wearing underwear and her sister was

in a disrobed condition, have not been stated by her while

recording her statement.

The another omission is that the accused asked her

to sleep, is also not narrated by her.

19. PW8 is the mother of the victim girl. Admittedly,

she was not present at the time of the incident. As per

her evidence, she had been to Bhusawal to bring the aunt

of the accused. She made phone calls to the accused, but

the accused has not picked up the calls and he switched-

off his phone. In the next morning, she returned her

house. The victim girl narrated the incident to her that

the accused subjected her for forceful sexual assault and

the incident was seen by her another daughter PW6.

Thereafter, the report was lodged. Her cross examination

shows that the accused is her husband. She has married

.....18/-

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with the accused without obtaining decree of divorce

from her first husband. During her cross examination, the

omissions that she made phone calls to the accused four

times and the accused switched-off his phone on fifth

time, are not narrated by her. Her further cross

examination shows that mobile number 9921367990,

which she was using, is obtained by her after the incident

which is in the name of the accused. After lodging of he

FIR, she made phone calls to the accused by using the

said number. She has made NC Complaint against the

accused at Dabki Road Police Station. She admitted that

she does not have cordial relations with the accused. She

specifically admitted that she had anguished against the

accused due to the incident of 2014 with the victim girl.

The victim girl has also initially lodged report against

Krushna Ingle at Purna Police Station.

.....19/-

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20. To corroborate the version of the victim girl, as per

the evidence of the prosecution, the victim girl was

referred for medical examination. PW4 Dr.Bhupendra

Patil, examined vide Exh.39, testified that on 21.9.2014,

he examined the victim girl and issued certificate. He has

not observed any injury on genital part. He has also not

given any opinion as to whether "rape" was committed or

not. Perusal of the medical certificate history narrated by

the victim girl shows that she was subjected for sexual

assault on intervening night of 20.9.2024 and 21.9.2014

at 12:30 am. She was medically examined on 21.9.2014

at 5:00 pm. On local examination, old healed hymen scar

and hymen was found torn at 6:00 O'clock position. No

fresh injury was noted by him.

21. Besides the evidence of medical officer, the

prosecution further placed reliance on the Forensic

Evidence i.e. the Chemical Analyzer's Report. As per the

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evidence of Investigating Officer PW10 Karuna Atram, she

has forwarded all articles that is clothes of the victim girl

and clothes of the accused for chemical analysis along

with their samples. Chemical Analyzer's Report Exh.99/1

shows that neither blood nor semen is detected on

Exh.125, which are clothes of the victim girl and the

accused. Chemical Analyzer's Report Exh.99/2 shows

that neither blood nor semen is detected in nail clipping

of the victim. No semen is detected on vaginal swab or

pubic hair of the victim girl. Neither blood nor tissue

matter is detected in nail clipping of the accused. No

semen is detected on pubic hair of the accused.

22. Coming to the evidence of the seizure of the

articles and the spot panchanama, the prosecution

examined PW1 Vikas Jadhav and PW2 Vishwambhar

Muthad PW1 Vikas Jadhav and Vishabar, who acted as

panchas on the spot panchanama and seizure of clothes of

.....21/-

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the victim girl. They both have not supported the

prosecution case. The spot panchanama is proved by the

prosecution by examining Investigating Officer PW10

Karuna Atram. She only narrated that she has visited the

spot of incident shown by the victim girl. It was the

residential home and the panchanama was drawn.

Perusal of the spot panchanama shows that no

incriminating article is found at the spot of the incident.

It further shows that house of the victim girl whereat the

alleged incident took place is surrounded by other houses.

23. Investigating Officer PW5 Praksh Sawkar, recorded

statements of some of witnesses who are neighbouring

witnesses. They have not stated about the incident.

24. On the basis of the above said evidence, the

prosecution claimed that the prosecution has proved its

case beyond reasonable doubt.

.....22/-

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25. It is well settled that the evidence of the victim,

which inspires confidence, is sufficient to warrant

conviction and no independent corroboration is required.

It is also well settled victim's evidence is to be tested like

the evidence of the witnesses though the statute provides

presumption, however foundational facts are to be

established. If circumstances arise of possibility of

innocence, benefit of doubt goes to the accused.

26. On appreciation of the evidence, there is no dispute

as to the fact that the accused is the stepfather of the

victim girl. The cross examination further shows that the

victim girl was disliking the accused staying with them.

As per the evidence of the victim girl her sister saw her in

a disrobed condition and put clothes on her person.

Whereas, the evidence of PW6 the sister of the victim girl

nowhere shows that she has seen the victim girl in an

unconscious condition. She has not stated that she was

.....23/-

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the person who put the clothes on the person of the

victim girl. Admittedly, at the time of the incident, the

victim girl was sleeping along her sister and her cousin

brother. The admission of the victim girl is that she

shouted, but it is difficult to accept that after her shouts,

other sisters have not woke up and have not made any

hue and cry. There is material inconsistency between the

evidence of the victim girl and her sister. Though PW6

the sister of the victim girl stated that when she woke up,

the victim girl was crying and her father was wearing only

underwear and her sister was in a disrobed condition, is

not narrated by her while recording her statement. The

evidence of the victim girl, that she became unconscious

and her sister sprinkled water on her and put clothes on

her, is also not narrated by PW6. Though the victim girl

has stated that she narrated the incident to her mother by

telephonic call, the mother deposed that when she

.....24/-

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returned home, on the next date, the victim girl has

narrated the said incident to her.

27. Thus, the evidence of the victim girl and PW6 the

sister of the victim girl and the mother of the victim is not

consistent on material particulars. If their evidence is

appreciated, in the light of the medical evidence, the

alleged incident has occurred in intervening night of

20.9.2024 and 21.9.2014 at 12:30 am and the victim girl

was examined on 21.9.2014 at 5 pm. No fresh injury or

fresh hymenal tear has been observed by the medical

officer. No single injury was found on the person of the

victim girl though the victim girl has stated that she was

assaulted by the accused. The clothes of the victim girl

and clothes of the accused are seized and the same were

immediately forwarded for the chemical analysis. Neither

blood nor semen is detected on Exhs.1 and 3.

.....25/-

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28. Thus, the evidence of the victim girl is inconsistent

with the evidence of PW6 the sister of the victim girl and

PW8 the mother of the victim girl.

29. There is no dispute as far as legal position is

concerned that "rape" is not "Medical Term", but it is the

"Legal Term". The Medical Officer has to ascertain from

the medical examination as to whether any physical

activity was done with the victim girl.

30. 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

.....26/-

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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.

31. It is to be noted that absence of injury on the

private part of the victim girl is not sine qua non and the

same itself is not sufficient to discard the evidence

adduced by the prosecution. However, in such a case, the

evidence on analysis must be found to be credible and

trustworthy. The evidence must be of sterling quality.

32. Perusal of the evidence of the doctor shows that

there was no injury and even no fresh tear is noted on

genital examination of the victim girl. While appreciating

the evidence by invoking the test of preponderance of

probabilities, all these factors, in my view, would assume

significance. The story narrated by the victim girl itself

.....27/-

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appears to be improbable and untrustworthy and,

therefore, it requires corroboration.

33. In view of such nature of the evidence, the

evidence of the victim girl falls short to inspire

confidence. The inconsistent evidence of the victim girl

and her sister not corroborated by the medical evidence

or forensic evidence is sufficient to hold that the

prosecution failed to prove the charges levelled against

the accused beyond reasonable doubt.

34. In this view of the matter, as benefit of doubt goes

in favour of the accused, I proceed to pass following

order:

ORDER

(1) The Criminal Appeal is allowed.

.....28/-

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(2) The judgment and order dated 16.6.2023 passed by

learned Additional Sessions Judge, Akola in Sessions

Case No.226/2014 is quashed and set aside.

(3) The accused is acquitted of offence for which he was

charged.

(4) The accused be set at liberty forthwith, if he is not

required in any other case.

(5) Fine amount, if any, be refunded to the accused.

(6) Fees of learned counsel Ms.Mitisha Kotecha appointed

for the victim be quantified and the same be paid to her

as per rules.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 08/05/2025 19:02:45