Bombay High Court
Bablu S/O. Mohan Katote vs State Of Mah. Thr. Pso Jaripatka Ps ... on 9 May, 2025
2025:BHC-NAG:5088
Judgment
403 apeals173.23 & 283.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.178 OF 2023
WITH
CRIMINAL APPEAL NO.283 OF 2023
CRIMINAL APPEAL NO.178 OF 2023
Bablu s/o Mohan Katole (in jail),
aged about 21 years, occupation driver,
r/o Vishwas Nagar, Radha Krishna
Mandir, Nagpur. ..... Appellant.
:: V E R S U S ::
1. State of Maharashtra,
through Police Station Officer,
Jaripatka Police Station.
2. XYZ
Crime No.980/2020 Jaripatka
Police Station, Nagpur. ..... Respondents.
Shri R.M.Daga, Counsel for the Appellant.
Shri A.M.Ghogre, Additional Public Prosecutor for the
Respondent/State.
CRIMINAL APPEAL NO.283 OF 2023
Shamshad Ansari Rafique Ansari,
aged 21 years, occupation electrician,
r/o Vishwas Nagar, Radhakrishna
.....2/-
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403 apeals173.23 & 283.23
2
Mandir, Nagpur. ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through Police Station Officer,
Jaripatka Police Station, Nagpur.
2. XYZ
Crime No.980/2020 Jaripatka
Police Station, Nagpur. ..... Respondent.
Shri A.S.Mardikar, Senior Counsel assisted by Shri
S.K.Bhandarkar, Advocate for the Appellant.
Shri A.M.Ghogre, Additional Public Prosecutor for the
Respondent/State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 17/04/2025
PRONOUNCED ON : 09/05/2025
COMMON JUDGMENT
1. By these appeals, appellants (the accused
persons) have challenged judgment and order dated
30.1.2023 passed by learned Extra Joint District Judge
and Additional Sessions Judge, Special Court No.2
.....3/-
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403 apeals173.23 & 283.23
3
(POCSO), Nagpur (learned Judge of the trial court) in
Special POCSO Case No.8/2021.
2. By the said judgment impugned in appeals, the
accused persons were convicted for offence under
Section 363 read with 34 of the IPC and sentenced to
undergo rigorous imprisonment for 5 years and to pay
fine Rs.500/-, in default, to undergo simple
imprisonment for 1 month.
The accused persons were also convicted for
offence under Section 376(2)(i) read with 34 of the IPC
and sentenced to undergo rigorous imprisonment for 10
years and to pay fine Rs.1000/-, in default, to undergo
simple imprisonment for 3 months.
The accused persons were also convicted for
offence under Section 376(2)(j) read with 34 of the IPC
and sentenced to undergo rigorous imprisonment for 10
.....4/-
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403 apeals173.23 & 283.23
4
years and to pay fine Rs.1000/-, in default, to undergo
simple imprisonment for 3 months.
The accused persons were also convicted for
offence under Section 376(d)of the IPC and sentenced
to undergo rigorous imprisonment for 20 years and to
pay fine Rs.2000/-, in default, to undergo simple
imprisonment for 6 months.
The accused persons were also convicted for
offence under Section 506 read with 34 of the IPC and
sentenced to undergo rigorous imprisonment for 6
months and to pay fine Rs.100/-, in default, to undergo
simple imprisonment for 10 days.
Learned Judge of the trial court directed that all
sentences shall run concurrently.
3. Brief facts of the prosecution case emerged from
the police papers and recorded evidence are as under:
.....5/-
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403 apeals173.23 & 283.23
5
The informant victim, a minor girl, who is
intellectual disabled child, aged about 14 years, on
12.11.2020, at about 3:15 pm, when was proceeding to
meet her friend, the accused persons appraoched her at
Khopbragade Square, took her along with them in
Gorewada Forest, and subjected her for forceful sexual
assault. They have committed rape on her by threatening
her and after the incident, they again dropped her at
Martin Bridge, Nagpur. The victim narrated the incident
to her mother and, thereafter, approached the Jaripatka
Police Station and lodged report. On the basis of the said
report, the crime was registered.
4. After registration of the crime, the victim was
immediately referred to the medical examination. She
has shown the spot of incident to the investigating officer
and panchanama as to the spot was drawn. The accused
persons were arrested and referred for medical
.....6/-
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403 apeals173.23 & 283.23
6
examination. The clothes of the victim and the accused
persons are seized. The CCTV Footage was also collected.
Relevant statements of witnesses are recorded. The
samples collected are forwarded to the Chemical Analyzer
and after completion of the investigation, chargesheet is
submitted against the accused persons.
5. Learned Judge of the trial court framed charge vide
Exh.5. The cotnents of the chage are explained to the
accused persons and they pleaded not guilty and claimed
to be tried. In support of the prosecuiton case, the
prosecution has examined in all 22 witnesses, which are
as follows:
PW Names of Witnesses Exh.
Nos. Nos.
1 The victim 27
2 Arun Awade, pancha on spot 34
panchanama
3 The mother of the victim 42
.....7/-
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403 apeals173.23 & 283.23
7
4 Mukesh Gajbhiye, pancha on seizure 44
memo
5 Sanjay Khobragade, pancha on seizure of 46
clothes of the accused persons
6 The aunt of the victim 48
7 Satyajit Gotmare, Naib Tahsildar 51
8 Dr.Yash Agarwal 73
9 Dr.Shreya Dahiwade 77
10 Dr.Durga Bang 81
11 Dr.Atikul Khan 93
12 Amol Taiwade, pancha on seizure memo 109
13 Sunita Thakare, pancha on identification 113
parade panchanama
14 Vishwajit Fartade, PSI 123
15 Shahin Khan, Investigating Officer 125
16 Baliram Rewatkar 123A
(PW14 is already marked as Exh.123
and therefore this witess is noted as
Exh.123A forthe purpose of
convenience)
17 Jaishree Gire 138
18 Sandip Choudhary 139
19 Vishwas Bhaskar, Investigating Officer 148
20 Karishma Pushpakar, friend of the victim 162
21 Sachin Uke, photographer 163
22 Gaurav Binkar 154
.....8/-
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403 apeals173.23 & 283.23
8
6. Besides the oral evidence, the prosecution placed
reliance on report Exh.28, FIR Exh.29, CA Reports
Exhs.31, spot panchanama Exh.35, seizure memo Exh.44,
seizure memo of clothes of accused Shamshad Exh.47,
seizure memo of clothes of accused Bablu Exh.49, letter
to the executive magistrate for holding Test Identification
Parade Exh.52, Test Identification Parade panchanama
Exh.59, letter to the Medical Officer Exh.74, forensic
medical examination of accused Shamshad Exh.75,
forensic medical examination of accused Bablu Exh.76,
letter to the Medical Officer Exh.78, medical certificate of
victim Exh.79, prescription given by PW10 Dr.Durga Bang
Exh.82, information as to the birth of the victim Exh.94A,
birth certificate Exh.95, letter to obtain birth certificate
Exh.96, letter to the CA Exhs.101, 102, and 104, seizure
memo Exh.110, video analysis report Exh.130, arrest
.....9/-
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403 apeals173.23 & 283.23
9
panchanamas Exhs.149 and 150, seizure memos Exhs.151
to 154, and 158.
7. On the basis of the oral as well as documentary
evidence, the prosecution claimed that it has proved the
case against the accused persons. All the incriminating
evidence is put to the accused persons in order to obtain
their explanation regarding the evidence appearing
against them by recording their statements under Section
313 of the CrPC. The defence of the accused persons is of
total denial and of a false implication.
8. Heard learned Counsel Shri R.M.Daga for the
accused (in Criminal Appeal No.173/2023), learned
Senior Counsel Shri A.S.Mardikar for the accused (in
Criminal Appeal No.283/2023), and learned Additional
Public Prosecutor Shri A.M.Ghogre for the State. They
have also taken me through the entire record.
.....10/-
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10
9. Learned Senior Counsel for the accused submitted
that, to prove the offence under Section 376(2)(i) of the
IPC, the prosecution has to prove that the victim was
below 18 years of age at the time of the incident. Though
the mother of the victim has narrated her birth date as
28.11.2006, the birth certificate issued by the Municipal
Authority, Nagpur shows contrary evidence. The
registration number mentioned by the investigating
officer is also not supporting the prosecution case. He
further submitted that Exh.94 extract of birth certificate
loses credibility as the registration number is different.
The prosecution has to prove beyond reasonable doubt
that the victim was below 18 of years of age by adducing
cogent evidence.
Besides the evidence of PW3 the mother of the
victim and PW11 Dr.Atikul Khan, as to the birth date of
the victim, the prosecution placed reliance on the
.....11/-
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403 apeals173.23 & 283.23
11
evidence of the victim to prove that she was taken from
the lawful custody of the parents by the accused.
The cross examination of the victim shows that
though she was having an opportunity to resist the act of
the accused persons by making hue and cry, when she was
proceeding on the crowded road, she has not resisted the
act of the accused who were taking her away. The
evidence of the victim shows that when she was taken by
the accused persons, at one place, they stopped for
obtaining the parcel of Maggie and the victim was sitting
on the motorcycle. She has not made any attempt to
disclose the fact to the persons present near the shop.
The evidence of PW22 Gaurav Binkar who is
Maggie stall owner also shows that the co-accused
approached him for obtaining the parcel for a
considerable period. The accused and the victim were
.....12/-
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403 apeals173.23 & 283.23
12
there. But, there was no attempt by the victim to raise
voice against the accused as they have taken her
forcefully.
The CCTV Footage and the photographs on record
show that for some period, the victim was sitting on
motorcycle between two persons and for some period, she
was sitting at the last on the seat. At that time also, she
never raised any alarm to save herself. The prosecution
has made an attempt to show that she is not a normal
person, but considering her conduct that immediately she
has disclosed the incident to her mother means she is
aware as to the act committed with her. Therefore, it
cannot be said that she is intellectually disabled.
Moreover, family members of the victim are sending her
to drop tiffin of her father allowing her to visit her friend's
house alone itself, which is sufficient to show that she was
carrying her activities as a normal person. The entire
.....13/-
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403 apeals173.23 & 283.23
13
evidence on record sufficiently shows that the victim went
along with the accused at her own.
He further submitted that as far as evidence as to
the sexual assault is concerned, the same is not supported
by the medical evidence as she specifically stated that she
was forced to lie down on thorny surface, but she has not
received a single injury. Admittedly, the injuries are not
sine qua non, but in the light of the facts and
circumstances of the present case, the injuries ought to
have been there. The forensic evidence is also not
supporting as no blood or semen is detected on clothes of
the accused. Thus, the prosecution failed to prove the
charges against the accused beyond reasonable doubt.
Therefore, benefit will go to the accused.
10. Learned counsel Shri R.M.Daga, adopted the
submissions of learned Senior Counsel Shri A.S.Mardikar
.....14/-
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403 apeals173.23 & 283.23
14
and also invited my attention towards the cross
examination of the victim and submitted that the cross
examination shows that the victim was taken from the
crowded place. She has not made any hue and cry or
attempted to save herself when she was knowing that the
accused are taking her using force. The cross
examination further shows that she halted along with the
accused at the Chinese Stall approximately for an hour
and the accused who was sitting behind her approached
the stall owner for obtaining parcel. The spot was
surrounded by many shops and people were there for a
walk. The area is residential area, but the victim has not
taken any efforts to inform anybody as far as forceful act
of taking her is concerned. The victim has admitted
during cross examination that at the time of incident, her
age was 18 years old. In the light of the said submission,
the prosecution failed to prove that she was child at the
.....15/-
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403 apeals173.23 & 283.23
15
time of the incident. The evidence of the victim further
shows that at the relevant time, the accused persons have
covered their faces by masks. Then, there was no
opportunity for the victim to identify the accused. While
conducting the test identification parade, Naib Tahsildar
PW7 Satyajit Gotmare has not followed due procedure
and conducted the test identification parade by taking
help of police. The test identification parade is not
substantial evidence and liable to be discarded. For all
above these reasons, the judgment impugned in the
appeals deserve to be quashed and set aside.
11. Per contra, learned Additional Public Prosecutor for
the State submitted that the age of the victim is proved by
the prosecution by examining PW3 the mother of the
victim and PW11 Dr.Atikul Khan who has explained
discrepancy as to the registration number. He specifically
stated that though police have mentioned wrong
.....16/-
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403 apeals173.23 & 283.23
16
registration number, he has issued birth certificate on the
basis of their record. It is further submitted that evidence
of PW10 Dr.Durga Bang shows that the victim was not
mentally sound and by taking disadvantage of the same,
she was taken by the accused and subjected for the
forceful sexual assault. The evidence of the victim
corroborated by the medial evidence and immediate
disclosure to her mother sufficiently establishes the case
against the accused. Injury on the person of the victim is
not sine qua non. The prosecution has established the
charges against the accused and, therefore, no
interference is called for.
12. The charges were framed against the accused
under Sections 363, 376(2)(i)(j), and 376(D) of the IPC.
To prove the charges, the prosecution has adduced the
evidence of PW1 the victim, PW3 the mother of the
victim, PW6 aunt of the victim, PW20 friend of the victim,
.....17/-
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403 apeals173.23 & 283.23
17
and PW22 Gaurav Binkar. To corroborate the version of
the victim, another set of evidence adduced is the medical
evidence by examining PW8 Dr.Yash Agrawal who
examined the accused persons. PW9 Dr.Shreya Dahiwade
examined the victim, and PW10 Dr.Durga Bang who
treated the victim for her mental disability. Naib
Tahsildar PW7 Satyajit Gotmare has conducted the test
identification parade and PW13 Sunita Thakare acted as a
pancha on the said test identification parade. PW2 Arun
Awade, PW4 Mukesh Gajbhiye, PW5 Sanjay Khobragade
and PW12 Amol Taiwade acted as panchas on various
panchanamas. PW16 Baliram Rewatkar and PW21 Sachin
Uke are photographers and PW18 Sandip Choudhary is
the CCTV Technician. Whereas, PW14 Vishwajit Fartade,
PW15 Shahin Khan and PW17 Jaishree Gire and PW19
Vishwas Bhaskar are police witnesses.
.....18/-
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403 apeals173.23 & 283.23
18
13. As per the allegations, when the victim was
proceeding to her friend's house and was standing near
Martin Nagar Church, the accused persons came on
motorcycle and asked her to come along with them to eat
noodles and took her forcibly by closing her mouth and
taken her in a forest at Gorewada. Thus, as per the
allegations, she was taken forcefully from the custody of
her parents. The evidence of the victim shows that both
the accused persons came on motorcycle when she was
sitting near Martin Nagar Church and was waiting for her
friend and took her on pretext to eat noodles on their
motorcycle. During her cross examination, it came on
record that the accused persons have covered their faces
by masks and only their eyes were visible. For the first
time, she has seen the accused. She has not sustained any
injuries though the accused forcefully put her on the
motorcycle. When she was taken on the motorcycle,
.....19/-
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403 apeals173.23 & 283.23
19
people were using the said road for proceeding towards
Mankapur, Koradi and Jaripatka. The accused persons
have not tied her hands and legs when taking her forcibly.
The motorcycle was kept on motorcycle stand. When
they stopped to obtain parcel of noodles, the customers
were present on the noodles shop. There were many
shops as well as people were present at the said spot. The
area is residential area. People were using the said place
where she stopped along with the accused. She has not
informed to anybody that the accused persons are taking
her forcibly. When she was taken by the accused on
motorcycle and though there were many signals, she had
not called anyone informing that the accused persons are
taking her forcefully.
14. Section 359 of the IPC deals with the offence of
"kidnapping" which is of two types: kidnapping from
India and kidnapping from lawful guardianship.
.....20/-
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403 apeals173.23 & 283.23
20
15. In view of Section 361 of the IPC, whoever takes or
entices any minor under sixteen years of age if a male, or
under eighteen years of age if a female, or any person of
unsound mind, out of the keeping of the lawful guardian
of such minor or person of unsound mind, without the
consent of such guardian, is said to kidnap such minor or
person from lawful guardianship.
16. Thus, the prosecution has to prove that the victim
girl was below 18 years of age at the relevant time. To
prove the age, the prosecution mainly placed reliance on
the evidence of the victim. She has stated that her birth
date is 28th November. She has not narrated the exact
year. During her cross examination, she admitted that at
the time of lodging of the report, her age was 18 years
old.
.....21/-
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403 apeals173.23 & 283.23
21
17. Besides the evidence of the victim, the evidence of
PW3 mother of the victim shows that at the time of
incident the victim was 14 years old and her birth date is
28.11.2006. During her cross examination, the date of
birth is not challenged by the defence.
18. To corroborate the version of the mother of the
victim, the prosecution has examined PW11 Dr.Atikul
Khan who was serving in NMC as Medical Officer and
holding the charge of the Sub-Registrar, Births and Deaths
Registration Department since November 2018. As per
his evidence, he received information in prescribed form
i.e. Form No.1 regarding birth of child from the
Government Medical College. As per the said
information, the child is born in the Government Medical
College and Hospital and name of parents was mentioned
in the said form. On the basis of the said information, the
entry was taken in the municipal record. He has
.....22/-
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403 apeals173.23 & 283.23
22
produced on record original register and extract of the
same. Exh..94 is information received from the
Government Medical College and Hospital, Nagpur as to
birth of the victim. The name of the parents is mentioned
in the said information. On the basis of the said
information, the birth of the victim was recorded as
26.11.2005. The said birth date is registered on
29.12.2005. The place of birth is mentioned as the
Government Medical College and Hospital. The format
received by the Municipal Corporation from the
Government Hospital also discloses date of birth as
28.11.2005.
19. Learned Senior Counsel vehemently submitted that
PW11 Dr.Atikul Khan has admitted during his cross
examination that registration number mentioned in the
letter issued by the investigating officer and registration
number mentioned in the certificate is different. The
.....23/-
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403 apeals173.23 & 283.23
23
explanation given by PW11 Dr.Atikul Khan shows that the
registration shown in the letter is different than
documents provided by them. He further stated that he
has issued birth certificate on the basis of the record
available with the Municipal Corporation. The birth entry
was taken on the basis of the information received from
the Government Medical College and Hospital.
20. Thus, though the mother of the victim girl has
narrated the birth date of the victim as 28.11.2006, but
the documents on record sufficiently show that birth year
of the victim is of year 2005. Admittedly, the mother of
the victim is not cross examined on the age part.
21. PW11 Dr.Atikul Khan though cross examined,
nothing incriminating is brought on record which would
shatter the evidence of PW11. Admittedly, no radiological
examination was carried out. The birth entry was taken
.....24/-
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403 apeals173.23 & 283.23
24
by the official of the Municipal Corporation in view of the
provisions of Sections 12 and 17 of the Registration of
Births and Deaths Act, 1969.
22. 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.
23. Section 7 of the said Act thereof deals with
appointment of registration for each local area comprising
the area within the jurisdiction of a municipality,
panchayat or other local authority or any other area or a
combination of any two or more of them. It is duty of
the Registrar to register every birth which took place in
his jurisdiction. This Act mandates that the Registrar
should discharge his duties carefully.
.....25/-
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403 apeals173.23 & 283.23
25
24. Section 8 of the said Act mandates that each head
of the house to report birth in the family to the Registrar.
25. As per 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 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
.....26/-
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403 apeals173.23 & 283.23
26
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 specially enjoined by the
law of the country is itself the relevant fact. To render a
document admissible under Section 35, three conditions
must be satisfied, firstly, entry that is relied on must be
one in a public or other official book, register or record,
secondly, it must be an entry stating a fact in issue or
relevant fact; and thirdly, it must be made by a public
servant in discharge of his official duty, or any other
person in performance of a duty specially enjoined by law.
.....27/-
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403 apeals173.23 & 283.23
27
26. It is, thus, clear that the birth certificate issued by
the public officer or by the competent authority under the
provisions of the Registration of Births and Death Act and
the Rules framed thereunder is required. The birth
certificate of the victim girl is issued in compliance with
the above said provisions.
27. Rule 12(3) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 reads thus:
"Rule 12(3) : 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 date of birth certificate from the s
chool (other than a play school) first
attended; and in the absence whereof;
ii. the birth certificate given by a
corporation or a municipal authority
or a panchayat;
.....28/-
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403 apeals173.23 & 283.23
28
iii. the matriculation or equivalent
certificates, if available;
(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.
28. The Hon'ble Apex Court in the case of Jarnail
Singh vs. State of Haryana, reported in 2013 ALL MR
(Cri) 2946 observed that even though Rule 12 is strictly
applicable only to determine the age of a child in conflict
with law, we are of the view that the aforesaid statutory
provision should be the basis for determining age, even
for a child who is a victim of crime. For, in our view, there
is hardly any difference in so far as the issue of minority
is concerned, between a child in conflict with law, and a
child who is a victim of crime. Therefore, in our
considered opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to determine the age of
.....29/-
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403 apeals173.23 & 283.23
29
the prosecutrix. The manner of determining age
conclusively, has been expressed in sub-rule (3) of Rule
12 extracted above. Under the aforesaid provision, the
age of a child is ascertained, by adopting the first
available basis, out of a number of options postulated in
Rule 12(3). If, in the scheme of options under Rule 12(3),
an option is expressed in a preceding clause, it has
overriding effect over an option expressed in a
subsequent clause. The highest rated option available,
would conclusively determine the age of a minor. In the
scheme of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the highest rated
option. In case, the said certificate is available, no other
evidence can be relied upon. Only in the absence of the
said certificate, Rule 12(3), envisages consideration of
the date of birth entered, in the school first attended by
the child. In case such an entry of date of birth is
.....30/-
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403 apeals173.23 & 283.23
30
available, the date of birth depicted therein is liable to be
treated as final and conclusive, and no other material is
to be relied upon. Only in the absence of such entry, Rule
12(3) postulates reliance on a birth certificate issued by a
corporation or a municipal authority or a panchayat.
29. Thus, the birth certificate issued in the present
case is in compliance with the provisions of the
Registration of Births and Deaths Act and therefore the
evidence is acceptable.
30. Thus, the evidence as to the birth date of the victim
and as to her age is probable and proved by the
prosecution. The evidence shows that on the day of the
incident she was below 18 years of age i.e. of 15 years.
31. Now, let us examine the evidence of the victim girl
as to she was taken by the accused persons from lawful
guardianship of her parents. Before referring her
.....31/-
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403 apeals173.23 & 283.23
31
evidence, it is necessary to refer the evidence of PW10
Dr.Durga Bang examined vide Exh.81. As per her
evidence, the victim is intellectually disabled child with
behaviour problem. Her IQ is at the border line of
intellectual disability. It is above 70%. Then it is border
line intellectual disability. The evidence of the mother of
the victim shows that the victim is not the normal child.
32. In the light of the above evidence, if the evidence
of the victim is considered, it shows that on the day of the
incident, she was proceeding towards her friend's house
and, therefore, waiting for her friend near Martin Nagar
Church. At the relevant time, both the accused
approached her and asked her to come along with them
to eat noodles and she went along with them. They
obtained parcel from one place and, thereafter, took her
in the forest and subjected her for sexual assault. Her
cross examination shows that the boys were unknown to
.....32/-
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403 apeals173.23 & 283.23
32
her. They were covering their faces by putting masks at
the relevant time and only the eyes of the accused persons
were visible. When they stopped to obtain parcel, the
accused who was sitting behind her on the motorcycle
went to the stall to take the parcel and she was sitting on
the motorcycle. She further admitted that there were
many shops and people were also there. She has not
made an attempt to disclose the fact that she is taken by
the accused by force. After obtaining parcel also, they
proceeded on motorcycle and there was an opportunity
for her to raise an alarm, but she has not raised alarm and
went along with the accused persons.
33. Thus, the submissions of learned Senior Counsel
and learned counsel for respective accused is that though
the victim was having an opportunity to make hue and
cry, she has not made the same and, therefore, it can be
inferred that she at her own went along with two boys. It
.....33/-
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403 apeals173.23 & 283.23
33
is further submitted that as far as abnormality is
concerned, only evidence of PW10 Dr.Durga Bang is not
sufficient to show that she is not normal person. On the
contrary, the evidence on record shows that she was
discharging all her domestic duties as per the normal
person. She was sent to drop the tiffin of her father and
she is allowed to visit her friend's house alone and,
therefore, the same itself is sufficient to show that she is a
normal person. Even, the prescription given by PW10
Dr.Durga Bang nowhere shows the type of disability she is
suffering from. The alleged incident has occurred on
12.11.2020 and the prescription is of 3.7.2020. She
disclosed the incident immediately to her mother which
sufficiently shows that she is aware about the act
committed with her. Moreover, the evidence of the victim
and her friend PW20 is contradictory. As per the evidence
of the victim, she had been to near Martin Nagar Church
.....34/-
Judgment
403 apeals173.23 & 283.23
34
to meet her friend and was sitting there. Whereas, the
evidence of PW20 shows that the victim was about to visit
her house on the day of the incident, but she had not
visited. It is further submitted that there are several kinds
of tests to calculate IQ. PW10 Dr.Durga Bang has not
clarified which test is conducted on the victim to ascertain
her IQ. The problem the victim suffering from is only to
the extent of behaviour problem.
34. Thus, perusal of the evidence of the victim, her
mother, and PW10 Dr.Durga Bang shows that the victim
was facing the behaviour problem and her IQ was at the
border line. The evidence further shows that she knows
consequences of the act committed with her. She is also
aware as to what action to be taken if she is taken
forcefully by somebody. Despite the opportunity she was
having, she has not taken the help of any other person, if
she was taken forcibly. Moreover, the evidence as to the
.....35/-
Judgment
403 apeals173.23 & 283.23
35
identity of the present accused persons is also suspicious
as the victim states that the accused persons were
covering their faces by putting masks and only their eyes
were visible.
35. The evidence of Naib Tahsildar PW7 Satyajit
Gotmare, who conducted the test identification parade,
shows that he has asked the Superintendent of Central
Prison to select the dummy persons. The panchas were
also selected by the police. The test identification parade
was also held without following due process. He
specifically admitted that 12 dummy persons were
different in appearance. He had not enquired with the
pancha witnesses whether they have seen the accused
persons earlier at any time. He had not asked the police
whether for identification of the accused persons they
have taken CCTV Footage. Out of 10 dummies, 8
dummies were of similar age, whereas two dummies were
.....36/-
Judgment
403 apeals173.23 & 283.23
36
of higher age. He has not enquired whether any
photographers were shown to the witnesses before the
test identification parade. The evidence of the test
identification parade is to be appreciated in the light of
the fact that the victim especially stated that the faces of
the accused person were covered by masks and only eyes
were visible. She has not narrated any description of the
accused persons.
36. In the light of the above evidence, the evidence on
the test identification parade is a weak type of evidence.
37. The identification parade belongs to the stage of
investigation and there is no provision in the CrPC which
obliges the investigating agency to hold or confers a right
upon the accused to claim, a test identification parade. It
is not substantive evidence and these parades are
essentially governed by Section 162 of the CrPC. It is well
.....37/-
Judgment
403 apeals173.23 & 283.23
37
settled that the substantive evidence is the evidence of
identification in court and test identification parades
provide corroboration to the identification of the witness
in the court, if required. The identification of the accused
either in test identification parade or in court is not sine
qua non in every case, if from the circumstances available
on record the guilty is otherwise established.
38. To prove the offence under Section 363 of the IPC,
"taking or enticing" away a minor out of keeping of lawful
guardian is an essential ingredient of the offence of
"kidnapping."
39. The definition of Section 361 of the IPC shows that
"taking" or "enticing" away a minor out of the keeping of
lawful guardian is of the offence of "kidnapping". What
amounts to "taking" is dealt with by the Hon'ble Apex
Court in the case of S.Varadrajan vs. State of Madras,
.....38/-
Judgment
403 apeals173.23 & 283.23
38
reported in AIR 1965 SC 941 wherein it is held that when
the victim girl (who though a minor had attained the age
of discretion and is on the verge of attaining majority and
is minor college student) herself telephoned to the
accused to meet her in his car at a certain place, went up
to that place and finding him waiting in the car got into
that car of her own accord and the accused takes her to
various places and ultimately to the Sub Registrar's Office
where they got an agreement to marry registered and
there is no suggestion that this was done by force or
blandishment or on the part of the accused but it is clear
from the evidence that insistence of marriage came from
her side. The accused by complying with her wishes can
by no stretch of imagination be said to have taken her out
of the keeping of her lawful guardian. The fact of her
accompanying the accused is quite consistent with her
own desire. there is a distinction between "taking" and
.....39/-
Judgment
403 apeals173.23 & 283.23
39
allowing a minor to accompany a person. The two
expressions are not synonymous though we would like to
guard ourselves from laying down that in no conceivable
circumstance can the two be regarded as meaning the
same thing for the purposes of Section 361 of the Indian
Penal Code. Where the minor alleged to have been taken
by the accused person left her father's protection knowing
and having capacity to know the full import of what she
was doing voluntarily joins the accused person, the
accused cannot take her away from keeping of her lawful
guardianship. Something more has to be shown in a case
of this kind and that is some kind of inducement held out
by the accused person or an active participation by him in
the formation of the intention of the minor to leave the
house of the guardian.
40. In the light of the aforesaid legal position, if the
evidence of the victim is appreciated, it shows that she
.....40/-
Judgment
403 apeals173.23 & 283.23
40
went along with the boys. Thus, ingredient "taking" is
not established by the prosecution. The evidence on test
identification parade is also not acceptable in the light of
the fact that the victim specifically stated the faces of the
boys were covered with masks and she has not given any
description of the persons who have taken her and
especially when they are unknown to her.
41. The accused persons are further charged for the
offence under Section 376(2)(n)(j) of the IPC and under
Section 4 of POCSO Act.
42. The evidence adduced by the prosecution can be
divided into three parts. First part is, the evidence of
PW1 the victim vide Exh.27, PW3 mother of the victim
vide Exh.42, PW6 aunt of the victim vide Exh.48A, PW20
friend of the victim vide Exh.162 and PW22 Gaurav
Binkar vide Exh.165, the Maggie stall owner.
.....41/-
Judgment
403 apeals173.23 & 283.23
41
43. If the evidence of the victim is taken into
consideration, it shows that two persons, on the pretext of
having Maggie at the Maggie stall, have taken her and
obtained parcel and took her at Gorewada Forest and
administered beer and subjected her for forceful sexual
assault. She testified that they forced her to lie down on
thorny surface in jungle and subjected her for the forceful
sexual assault and again brought her near the Martin
Nagar Church and dropped her there. She specifically
stated that the accused persons have done this act by
disrobing her. She further stated that when she was
crying, her mouth was closed and she was threatened.
This evidence, if considered, in the light of the cross
examination, the cross examination shows that the
accused persons forcibly took her on their motorcycle and
she could not see their faces clearly and also could not
clearly identified. She further stated that though she
.....42/-
Judgment
403 apeals173.23 & 283.23
42
refused, the accused took her for having noodles. Though
she refused them, both accused persons forcibly took her
on motorcycle. They used force for putting her on their
motorcycle. Though they forcibly took her on their
motorcycle, she has not got any scratches. She admitted
that Martin Nagar and Martin Nagar Church are crowded
locality. The people were always going from that locality
towards Mankapur, Koradi, and Jaripatka. The ring road
is also passing towards Gorewada from that locality. The
accused persons have not tied her legs and hands when
they took her on motorcycle. The people have seen this
incident when the accused persons forcibly took her on
their motorcycle. The accused initially took her on
noodles shop and, thereafter, at Gorewada. The noodles
shop was near Dayanand Park. When they reached at
Dayanand Park, one of the accused got down from the
motorcycle for obtaining parcel and the other accused
.....43/-
Judgment
403 apeals173.23 & 283.23
43
kept his motorcycle on motorcycle stand. She was also
with the accused who was driving the motorcycle. The
accused who was sitting behind her got down for
purchasing the noodles. One hour was required for
obtaining parcel. One or two persons were on the
noodles stall. There were other shops and people were
there who were taking walk. It is a residential area. She
specifically admitted that she has not disclosed to anyone
informing that the accused persons are forcibly taking her.
Her evidence further shows that they proceeded from
Martin Nagar to Dayanand Park and Jaripatka and there
were many traffic signals and their motorcycle passed by
observing the signals. She has not called anyone by
informing that the accused persons are forcibly taking her
on motorcycle. Her cross examination further shows that
they proceeded to Gorewada by ring road which is traffic
road. As to the incident, her evidence shows that the
.....44/-
Judgment
403 apeals173.23 & 283.23
44
accused persons subjected her for forceful sexual assault.
She was forced to lie down on thorny surface, but there
were no scratches on her hands. At the time of
purchasing noodles, she was sitting in middle on the
motorcycle.
44. Thus, her cross examination shows that she was
taken by the accused persons from the traffic road, but
she has not made any hue and cry though she was taken
forcefully. Though she was forced to lie down on thorny
surface, no injuries are found on her person. The
evidence of the victim further shows that registration
number of motorcycle is not visible and she is shown to
be between two persons. Thus, the evidence on record
sufficiently shows that she proceeded along with the
accused persons on a traffic road. They have also halted
at noodle stall approximately for one hour. Though the
people were there, she has not disclosed to any of them
.....45/-
Judgment
403 apeals173.23 & 283.23
45
that she is taken forcefully by the accused persons. The
faces of the accused persons were covered by masks.
Though they observed signals, she has not made any hue
and cry to get help. She has also not stated that she was
called for the test identification parade to identify the
accused persons when identification parade was held.
45. To corroborate the version of the victim, the
prosecution has examined PW3 the mother of the victim,
who has stated that on the day of the incident, she had
been to the house of mother-in-law and she came to know
that the victim went to meet her friend, but as she did not
return, she searched for her. When they were returning,
they met the victim near Martin Nagar Bridge and she
observed that the victim was covered with dirt and as
soon as she saw her mother, she disclosed that she was
subjected for the sexual assault. PW6 aunt of the victim,
was also along with her. The victim has also narrated the
.....46/-
Judgment
403 apeals173.23 & 283.23
46
history to the medical officer when she was medically
examined. Her cross examination shows that the victim is
abnormal and mental patient since her childhood. The
medical treatment was also given to the victim. She
disclosed that the victim became annoyed because of her
mental abnormality. She disclosed the police about this
mental ailment. Her cross examination further shows that
the dust and grass were found on her scarf. The victim
has narrated the description of the accused persons to her.
She has also not narrated as to the description of the
motorcycle.
46. PW6 is the aunt of the victim with whom the victim
was residing. As per her evidence, on 12.11.2020, she
was in her office at about 4:00 pm to 4:30 pm. She
received call from her mother informing that the victim
had been to the house of her friend and did not return
back. Immediately, she left the office and searched the
.....47/-
Judgment
403 apeals173.23 & 283.23
47
victim. She also visited the house of her friend and her
friend was not at home. On telephonic call, the friend of
the victim informed that the victim did not visit her
house. Her cross examination also shows that the victim
is suffering from mental disorder, but they have not paid
any attention to her and since last one year treatment was
given to the victim. She specifically admitted that the
victim is not of unsound mind or lunatic, only she
becomes annoyed immediately.
47. To corroborate the version of the victim that she
left the house to visit her friend's house, the prosecution
examined PW20 friend of the victim. Her evidence shows
that the victim is residing at Martin Nagar and she was
residing in Krushi Nagar. As she was not keeping well on
the day of the incident, she was at home. She received
phone call of the victim and the victim disclosed to her
that she is coming to her house. But, the victim did not
.....48/-
Judgment
403 apeals173.23 & 283.23
48
come to her house. At about 4:00 pm, she received a call
from grandmother of the victim and she explained that
the victim did not come to her house. Her cross
examination shows that though the victim informed her
that she is coming to her house, she did not come.
48. The evidence of PW22 Gaurav Binkar, who is
Maggie stall owner, is only to the extent that his Chinese
Stall is in front of Dayanand Park. His cross examination
shows that on the Chinese Stall, there used to be crowd
from afternoon till night and various customers are
visiting his stall including young boys and girls.
49. On the basis of the above said evidence, the
prosecution claimed that the evidence of the victim
consistently shows that she left the house to proceed to
her friend's house, however she was taken forcefully by
the accused persons and was subjected for the forceful
.....49/-
Judgment
403 apeals173.23 & 283.23
49
sexual assault. Whereas, it is submitted by the defence
that the evidence of the victim itself is not inspiring the
confidence on the count that there is variance in the
evidence of victim and PW20 the friend of the victim. As
per the evidence of the victim, she was waiting for her
friend. Whereas, PW20 the friend of the victim stated
that the victim informed by telephonic call that she is
visiting her house, but she did not come. The evidence of
the victim shows that she was taken in the forest and
forced to lie down on thorny surface, but not a single
scratch was found on her person.
50. To corroborate the version of the victim, the
prosecution further placed reliance on the medical
evidence by examining PW8 Dr.Yash Agrawal. PW8
Dr.Yash Agrawal has examined both the accused persons
and testified that there was no sign of intoxication by
them. No injuries are found on their person. He collected
.....50/-
Judgment
403 apeals173.23 & 283.23
50
the samples. PW9 Dr.Shreya Dahiwade, is another
Medical Officer examined vide Exh.77. As per her
evidence, she was working in the Government Mayo
Hospital. On 12.11.2020, the victim was referred to her
by Jaripatka Police. The victim narrated the history of
sexual assault. On her examination, there was no
external injury. Hymenal tear was at 5:00 to 7:00 O'clock
position. She collected the samples. Her cross
examination shows that history narrated by the victim is,
two unknown persons have committed sexual assault on
her. The victim is mentally disturbed. She further
admitted that the victim has narrated different history to
her family members and different history to her. She has
not suggested any IQ Test of the victim. It further shows
that at the time of the incident, the victim was having her
menstrual cycle. She stated during cross examination
that it is not necessary that injury should occur every time
.....51/-
Judgment
403 apeals173.23 & 283.23
51
if any one is lying on thorny and hard surfaces. She
further admitted that she has not mentioned specifically
in her report regarding reasons of hymenal tear. She has
also not mentioned whether tear was fresh or old. The
possibility of hymenal tear because of cycling is also
admitted by her. She further admitted that in rare case,
the hymen may have tear at 5:00 O'clock to 7 O'clock
position. She has not given final opinion. Thus, the cross
examination of this witness shows that there are other
reasons for hymenal tear. No injury was found on labia
minora or labia majora. At the time of the alleged
incident, the victim was having her menstrual cycle.
51. The CA Report Exh.31 shows that vulva swab and
vaginal swab contain human blood of Group "B". As per
the CA Report Exh.31/5, the full jeans pant and nicker of
the victim bear human blood.
.....52/-
Judgment
403 apeals173.23 & 283.23
52
52. Another set of evidence, on which the prosecution
placed reliance, is CA Report Exh.31, which shows that
Exh.3 underwear of Shamshad bears human semen, but
the blood group is not detected.
53. As per the prosecution case, the accused persons
were unknown to the victim. The victim has also
narrated not only during her chief examination but also
during her cross examination that the accused persons
were not known to her. She has not described the
description of the accused while lodging the report and
her mother also admitted that the victim has not
described the description of the accused persons to her.
54. In the light of the above facts, the prosecution
placed reliance on evidence of Naib Tahsildar PW7
Satyajit Gotmare, examined vide Exh.51, who testified
that he received letter from Jaripatka Police Station
.....53/-
Judgment
403 apeals173.23 & 283.23
53
requesting him to conduct test identification parade. As
per his evidence, he received letter from Jaripatka Police
Station to hold test identification parade on 2.12.2020.
The letter is pertaining to conducting of test identification
parade of the accused. He issued letter to the police
station requesting them to serve summons to the
complainant for the purpose of identification parade of
the accused persons. The said letter is at Exh.53. He also
issued letter to the Jaripatka Police Station to keep
available pancha witnesses from the Government
Department. He received letter from Jaripatka Police
Station informing that the Government officials are not
available to act as pancha. He had issued summons to the
complainant to remain present. The summons is duly
served on the victim which is signed by her, Exh.56. The
date 10.12.2020 was fixed for conducting test
identification parade. Accordingly, he conducted test
.....54/-
Judgment
403 apeals173.23 & 283.23
54
identification parade in presence of pancha witnesses.
The jail authority has provided 123 dummy persons
having similar appearance with the accused persons, then
he called the victim with the help of lady police constable.
He directed the Jail Authority to keep all dummy persons
with two accused. He informed the accused that they can
occupy the place as per their choice in the row. The
accused persons were asked to remove their masks. The
victim identified accused No.2 Bablu who was standing at
Sr.No.3 and accused No.1 Shamshad who standing at
Sr.No.11. Accordingly, he prepared memorandum. He
admitted during cross examination that the police have
brought pancha witnesses and complainant before the Jail
Authority for conducting test identification parade. There
is no entry which was referred by him in memorandum
No.2 particularly in memorandum No.1 of the test
identification parade. He further admitted that though in
.....55/-
Judgment
403 apeals173.23 & 283.23
55
memorandum form No.2 there is specific column No.2
where he had stated that the victim has identified the
accused persons in test identification parade, in
memorandum No.1 there is no entry referred by him. It
further shows that 12 dummy persons were of different
appearance. He had not enquired with the pancha
witnesses whether they have any seen the accused
persons earlier at any time. Personally, he has not
selected dummy persons. Out of 10 dummies, 2 were of
different descriptions. He has not mentioned the height
and weight of dummy persons. On the basis of the said
cross examination, defence attempted to bring on record
that Naib Tahsildar PW7 Satyajit Gotmare has not
followed due process while conducting the test
identification parade.
55. The next part of the evidence is as to the various
panchanamas. The evidence of PW2 Arun Awade, acted
.....56/-
Judgment
403 apeals173.23 & 283.23
56
as pancha on spot panchanama, shows that the spot is
shown by the victim. At the spot, they have seen an
empty liquor bottle and other articles. According,
panchanama Exh.35 was drawn. He stated that whatever
he saw on the spot is narrated to the police and the police
recorded the same.
56. PW4 Mukesh Gajbhiye, is pancha on seizure of nail
samples and other samples of the victim. The
panchanama is at Exh.45.
57. PW5 Sanjay Khobragade, acted as a pancha on
seizure of clothes of accused No.1 and accused No.2. He
has not supported the prosecution case and stated that
panchanama was ready and nothing was written in his
presence. He is unable to recollect panchanama as to the
motorcycle.
.....57/-
Judgment
403 apeals173.23 & 283.23
57
58. PW12 Amol Taiwade, is the pancha on seizure of
Pen-Drive whose evidence is only to the extent that one
Pen-Drive was seized in his presence.
59. PW18 Sandip Choudhary, is the CCTV Technician,
who testified that he completed his education in
Computer Technology. There are 3600 cameras of CCTV
fixed in Nagpur at various places. The CCTV reflects the
traffic as well as depicts scenario of road and square. He
is professional supervisor in Smart City Microscope
Company. The footage was asked by the police authority
pertaining to New Chanduram Chowk, Dayanand Park on
12.11.2020 between 15:30 till 15:45. The police
provided Pen-Drive along with letter. He has obtained
CCTV Footage and handed over the same to the police.
His cross examination shows that there is no specific
timing given to him by the police. On the basis of request
made by police, he has taken footage in Pen-Drive which
.....58/-
Judgment
403 apeals173.23 & 283.23
58
is maintained by CISCO Company. The folder No.4611 in
the Pen-Drive reflects one video file and files regarding
photos. The video file at serial No.1 is given name New
Dayanand Park. The photographs of image pertaining to
new Dayanand Park and particularly at the time on
12.11.2020 at about 15.31.29 (i.e. 3:00 pm and 31
minutes and 29 seconds). The image No.3 is pertaining
Pagalkhana Square of 15:46.28. The four images and
video files were handed over to the police in Pen-Drive
taken from computer where the same are saved. He
admitted that he has not annexed certificate of his
qualification at the time of handing over the certificate.
60. Perusal of the video files and photographs shows
that motorcycle is proceeding and two boys are riding on
the motorcycle and one girl is sitting between them. As
far as faces of the accused persons are concerned, the
same are not visible from the CCTV Footage.
.....59/-
Judgment
403 apeals173.23 & 283.23
59
61. PW21 Sachin Uke, the photographer, has obtained
photographs of the victim girl and he has taken
photographs of the victim by all angles.
62. The last set of the evidence is of the police
witnesses. PW14 Vishwajit Fartade, is the police officer
who has recorded FIR of the victim. He has also obtained
samples brought by the lady police constable who was
along with the victim during medical examination.
63. PW15 Shahin Khan, is lady police constable,
who took the victim for medical examination and
obtained samples from the medical officer and handed
over the same to PW14 Vishwajit Fartade.
64. PW17 Jaishree Gire, is the investigating officer who
carried out the investigation partly. She obtained birth
certificate of the victim and also issued letter to
Magistrate for conducting the test identification parade
.....60/-
Judgment
403 apeals173.23 & 283.23
60
and filed chargesheet in the court. She admitted that she
has not referred the victim to ascertain her mental status
to show that she was abnormal.
65. PW19 Vishwas Bhaskar, is another investigating
officer who has narrated about the investigation carried
out by him. During the cross examination PW19 Vishwas
Bhaskar admitted that Exh.21 was recorded on the basis
of statement given by the victim. He further admitted
that Pen-Drive was purchased by him for collecting CCTV
Footage. He has seized the said Pen-Drive which was
handed over to Technician PW18 Sandip Choudhary for
copying the CCTV Footage. He admitted that Pen-Drive
Exh.157 bears receipt No.1628 having
Sr.No.619659129743. Whereas, Pen-Drive
No.200853431W is at Exh.110. He admitted that image
reflects motorcycle, but not shown number on the plate.
The colour of the motorcycle is not clearly shown. The
.....61/-
Judgment
403 apeals173.23 & 283.23
61
model of the motorcycle is also not shown. Two male
members and one female member having scarf on her
face were sitting on the motorcycle. He admitted that
clear faces of persons do not show. It also shows that
people are walking on the road. There are many
motorcycles on the road. Date of videos as 12.11.2020
and timing as 154628 are shown. He has not recorded
statement of any pedestrians.
Thus, his cross examination shows that faces of
persons who are proceeding on the motorcycle are not
visible.
66. On appreciation of the evidence, it shows that the
entire case is based on the evidence of the victim.
67. It is well settled that evidence of victim is to be
appreciated and accepted if it inspires confidence and if it
inspires confidence, sole evidence of victim is sufficient to
.....62/-
Judgment
403 apeals173.23 & 283.23
62
warrant conviction against the accused. It is also well
settled that evidence of victim of sexual assaults stands on
par with evidence of an injured witness. The evidence of
the victim of sexual offence is entitled to great weight and
corroboration is not required if it inspires confidence. In
physical assault case, there may be evidence of
eyewitnesses, but such type of evidence cannot be
expected in sexual assault case. A prosecutrix of a sex-
offence cannot be put on par with an accomplice. She is
in fact a victim of crime. The Evidence Act nowhere
states that her evidence cannot be accepted unless it is
corroborated in material particulars. She is undoubtedly
a competent witness. What is necessary is that the Court
must be conscious of the fact that it is dealing with the
evidence of a person who is interested in the outcome of
the charge levelled by her. If the court keeps this in mind
and appreciates the evidence, Illustration (b) of Section
.....63/-
Judgment
403 apeals173.23 & 283.23
63
114 of the Indian Evidence Act which requires it to look
for corroboration. If for some reason the Court is hesitant
to place implicit reliance on the testimony of the
prosecutrix it may look for evidence which may lend
assurance to her testimony short of corroboration
required in the case of an accomplice.
68. In the light of above well settled legal principles,
the evidence of the victim is to be appreciated. The
prosecution has come with a case that the victim is having
intellectual caution of borderline and, therefore, PW10
Dr.Durga Bang, who has treated the victim from last one
year, was examined. Her evidence is only to the extent
that the victim was having behaviour problem. PW3 the
mother of the victim and PW6 aunt of the victim nowhere
stated that the victim is of unsound mind or lunatic. On
the contrary, the evidence shows that she was doing her
day to day activities as normal person does it. She was
.....64/-
Judgment
403 apeals173.23 & 283.23
64
sent to drop tiffin of her father and was also allowed to
visit her friend's house at her own. The evidence is only
to the extent that she is having behaviour problem.
Coming to her evidence, as to her incident, it shows that
she was proceeding to her friend's house and the accused
approached her and asked her to come along with them
to eat noodles. The accused were unknown to her. As per
her evidence, they took her forcefully. They stopped near
noodle stall approximately for one hour, but she has not
made any hue and cry. Her cross examination shows that
the accused sitting behind her on the motorcycle went to
bring parcel. There were other stalls and the people were
walking on the road. She has not stated that the
accused persons brought her forcefully. Her evidence
further shows that she was taken from crowdy road. The
people have also seen the accused forcefully putting her
on the motorcycle. She has not made any hue and cry
.....65/-
Judgment
403 apeals173.23 & 283.23
65
and not called any person for her help. Not only her
evidence but also the evidence of CCTV Footage and
investigating officer PW19 Vishwas Bhaskar shows that
the alleged incident has occurred at a crowdy road.
Thus, it shows that though she was having
opportunity, she has not made any hue and cry and has
not taken the help of any person.
The evidence further shows that the accused
persons have covered their faces by masks and only their
eyes were visible. The evidence of PW3 the mother of the
victim and PW6 aunt of the victim is regarding disclosure
to them immediately after the incident by the victim. The
evidence also shows that the victim was fully aware about
the act committed with her.
Thus, her evidence shows that though she travelled
along with the accused and her hands and legs were not
.....66/-
Judgment
403 apeals173.23 & 283.23
66
tied, she has not made any hue and cry and not shown
any displeasure though she was having an opportunity.
69. The evidence of the victim is to be appreciated in
the light of the medical evidence. Her evidence shows
that she was taken in a forest area and forced to lie down
on thorny surface. Though she was forced to lie down on
thorny surface, not a single scratch was found on her
person. Only injury was found that hymen was torn at
5:00 O'clock to 7:00 O'clock position. Whether hymenal
tear was fresh or old is not disclosed though the victim
was examined immediately after the incident. As per the
prosecution evidence, the victim was having her mensus
at the time of incident and her nicker and jeans pant were
having blood stains. But, the spot panchanama nowhere
shows finding of any blood stains at the spot of the
incident. Though her clothes are seized during the
investigation, the clothes nowhere disclose any grass or
.....67/-
Judgment
403 apeals173.23 & 283.23
67
soil on the said clothes. Exh.31/5 is the analysis of her
clothes which shows human blood on nicker and jeans
pant and reason appears to be due to the mensus. The
accused persons are also examined on 14.11.2020. No
blood stains are found on their person.
70. Admittedly, injuries are not sine qua non, but when
an incident occurs at a hard and rough surface, and
especially when victim states that she was forced to lie
down on thorny surface and two persons subjected her for
forceful sexual assault, absence of injuries on the person
of the victim assumes importance. Rape is a crime and
not medical condition. Rape is a legal term. The only
statement that can be made by medical officer is that
there is evidence of recent sexual activity.
71. The evidence of PW9 Dr.Shreya Dahiwade also
nowhere discloses that it was the recent sexual activity
.....68/-
Judgment
403 apeals173.23 & 283.23
68
with the victim. In every case, absence of physical
injuries does not negate commission of rape, but when
the circumstances show that the alleged incident has
taken place at hard and rough surface especially by
evidence of victim that it occurred at thorny surface, the
absence of injuries assumes importance.
72. On scrutiny of the evidence, it reveals that not a
single scratch was found on the person of the victim and,
therefore, the evidence of the victim requires
corroboration.
73. The prosecution has adduced evidence of Naib
Tahsildar PW7 Satyajit Gotmare. Criminal Manual, at
page No.1.20, speaks about procedure for holding
identification parade. It shows that an executive
magistrate should remember that he is person who
conducts parade and he will be in full and sole charge of
.....69/-
Judgment
403 apeals173.23 & 283.23
69
the entire proceedings. The Executive
Magistrate/Honorary Magistrate should first acquaint
himself, very briefly, with the facts of the case and find
out who is to be put in the parade for identification and
who are the witnesses to be called up for identification.
The parade should be arranged in a room or a place
which is such that the identifying witnesses, as well as the
persons connected with the Police, should not be able to
look into it. For the identification parade of one accused,
there should be at least half a dozen persons placed in the
parade. Not more than two accused should be placed in
any single identification parade. The executive magistrate
shall choose dummy persons identical with the
personality of the suspected accused who is to be
identified.
74. Thus, the scrutiny of the evidence of Naib Tahsildar
PW7 Satyajit Gotmare shows that he has not followed due
.....70/-
Judgment
403 apeals173.23 & 283.23
70
process while conducting the test identification parade.
He has not given proper instructions to the accused
persons and panchas are also not selected by the
executive magistrate. The identification has by itself no
independent value. During the investigation of a crime
committed by persons unknown to the witnesses, the
persons arrested on suspicion of their complicity in the
crime have got to be confronted by the investigating
authority with the witnesses so that they can find out
whether they are the persons who committed the crime or
not. Before the investigating authorities send up a case to
Court, they must be satisfied that the persons arrested by
them are the persons accused of having committed the
crime. The purpose of conducting a test identification
parade is that persons who claim to have seen the
offender at the time of the occurrence identify them from
amongst the other individuals without tutoring or aid
.....71/-
Judgment
403 apeals173.23 & 283.23
71
from any source. A test identification parade should
ordinarily be conducted soon after the arrest of the
accused, so as to preclude a possibility of the accused
being shown to the witnesses.
75. The alleged incident has taken place on
12.11.2020. The accused persons are arrested on
14.11.2020. The test identification parade was held on
10.12.2020 approximately after one month.
76. Thus, test identification parade is also not held
immediately after the incident. When the evidence of
victim itself shows that the accused were covering their
faces by masks, question is whether she was having any
opportunity to see the accused. The prosecution evidence
nowhere shows that at any point of time the accused
removed their masks and the victim was having an
opportunity to see their faces and, therefore, she was able
.....72/-
Judgment
403 apeals173.23 & 283.23
72
to identify their faces. The test identification parade
under Section 9 of the Evidence Act is not substantial
evidence but it is only corroborative evidence. The
purpose of holding a test identification parade during the
stage of investigation is, firstly, to ensure that the
investigating agency is proceeding in the right direction
where the accused is unknown and, secondly, to serve as a
corroborative piece of evidence when the witness
identifies the accused during trial. The evidence of
identification merely corroborates and strengthens the
oral testimony in Court which alone in the primary and
substantive evidence as to identity.
77. The evidence of the test identification parade is
specifically to be appreciated in the light of fact that the
victim has admitted during her cross examination that
faces of accused persons or his face are not shown in
.....73/-
Judgment
403 apeals173.23 & 283.23
73
video footage. The faces of the accused were covered by
masks.
78. Thus, nothing is on record to show that the victim
was having an opportunity to see faces of the accused
neither she has given description of the accused
immediately after the incident.
79. In the present case, the evidence of the victim
shows that she was taken by the accused persons on
motorcycle forcefully, but she has not made any attempt
to get any help from anybody though she was having an
opportunity. The medical evidence also not corroborative
as no single injury was found on her person though she
was forced to lie down on thorny surface and the accused
persons subjected her for sexual assault. The clothes of
the victim analyzed by the Chemical Analyzer nowhere
show any soil or grass on her clothes. The seizure
.....74/-
Judgment
403 apeals173.23 & 283.23
74
panchanama also nowhere discloses any forensic articles
on the clothes of the victim. The admission of PW9
Dr.Shreya Dahiwade shows that history narrated by the
victim to her and her parents is different. The Chemical
Analyzer's Report shows blood stains on her clothes, but
no blood stains are found at the spot of the incident.
Though she was forcefully taken by the accused persons,
not a single scratch was found on her person. The
evidence of the victim shows that she was waiting for her
friend. Whereas, the friend of the victim stated that the
victim informed her by telephonic call that she is coming
to her house and not reached there, which creates doubt.
The evidence of CCTV Footage is also not helpful as the
investigating officer has specifically admitted during his
cross examination that faces of the persons proceeding on
motorcycle are not visible. The victim has also admitted
the same. Merely because semen stains were found on
.....75/-
Judgment
403 apeals173.23 & 283.23
75
the undergarments of the accused No.1, the same is not
sufficient to connect him with the alleged offence as blood
group of semen stains is not analyzed.
80. The legal position, therefore, is, quite
unambiguous, that evidence of prosecutrix, in a case of
rape, is ordinarily to be believed, and may form sole basis
for conviction, unless cogent reasons, for court to be
hesitant in believing statement at its face value, and to
seek corroboration thereof, exist.
81. In the present case, the victim's evidence is neither
corroborated by the medical evidence nor by the other
circumstantial evidence. The accused person were
unknown to her when their faces were covered and her
evidence nowhere shows that she was having an
opportunity to see faces. The identification during the
test identification parade is also not helpful to the
.....76/-
Judgment
403 apeals173.23 & 283.23
76
prosecution to connect the accused with the alleged
offence. Though she immediately disclosed the incident to
her mother, she has neither described the description of
the accused persons nor described description of the
motorcycle. She has halted at the noodle stall wherein
other persons were there and she was having an
opportunity to disclose the act of the accused persons.
However, she has not disclosed the same. Though she
was subjected for forceful sexual assault by two persons
by forcing her to lie down on thorny surface and she has
not received a single scratch on her person, when she
specifically stated that she was disrobed by the accused
persons, the same falls short to inspire confidence about
her evidence.
82. In the light of the above said facts, independent
corroboration to the evidence of the victim was required.
The evidence of the victim is not corroborated by the
.....77/-
Judgment
403 apeals173.23 & 283.23
77
independent corroboration. When evidence of person like
victim is appreciated, if it inspires confidence,
independent corroboration is not required, but evidence
of such nature, like in the present case, adduced by the
prosecution requires independent corroboration, which is
absent in the present case.
83. In the light of the above discussion, learned Judge
of the trial court has not taken into consideration all these
aspects and, therefore, judgment impugned in appeals
calls for interference as the evidence of the victim falls
short for inspiring confidence.
84. In this view of the matter, I proceed to pass
following order:
ORDER
(1) The Criminal Appeals are allowed.
.....78/-
Judgment
403 apeals173.23 & 283.23
(2) The judgment and order dated 30.1.2023 passed by
learned Extra Joint District Judge and Additional
Sessions Judge, Special Court No.2 (POCSO), Nagpur in
Special POCSO Case No.8/2021 is hereby quashed and
set aside.
(3) The accused persons are acquitted of offences for
which they were charged.
(4) The accused persons be set at liberty forthwith, if
not required in any other case.
(5) Fine amount, if paid, be refunded to the accused
persons.
Appeals stand disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 09/05/2025 19:12:20
