Bombay High Court
Deepak S/O. Vijay Gajbhiye vs State Of Mah. Thr. Pso, Umari Potdar, ... on 19 November, 2025
2025:BHC-NAG:12383
1 appeal-559-2023.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 559/2023
Deepak S/o Vijay Gajbhiye : APPELLANT
Aged 34 years, Occ. Drive,
R/o Ghuggus, Tah. and Dist. Chandrapur
Vs.
1. State of Maharashtra, : RESPONDENTS
Through P.S.O., Umari Potdar,
Tah. Pombhurna, Dist. Chandrapur
2. XYZ (Victim), through her parent in :
Crime No. 07/2018, Dated 04.6.2018
registered with P.S.O., Umari Potdar,
Tah. Pombhurna, Dist. Chandrapur
Mr. Mahesh Rai, Advocate for Appellant
Mr. S.S. Hulke, APP for Respondent No.1
CORAM: NIVEDITA P. MEHTA, J.
Date of reserving the judgment : 03.11.2025
Date of pronouncing the judgment : 19.11.2025
JUDGMENT :
The challenge in this appeal is to the judgment and order dated
28.07.2023, passed by the learned Special Judge, Chandrapur in Special
(POCSO) Case No. 80/2018, wherein the appellant / accused came to be
convicted for the offences punishable under Section 4 of the Protection of
Children from Sexual Offences Act, 2012 (in short, POCSO Act), read with
Section 376(1) of the Indian Penal Code (in short, IPC) and sentenced to suffer
rigorous imprisonment for 10 years and shall pay a fine of Rs.5,000/- in default
rigorous imprisonment for 12 months. The appellant was acquitted of the
offences punishable under Sections 363 and 366 of the IPC.
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2. The case of the prosecution is that the report was lodged by Karnavir
Narayan Ramteke, dated 04.06.2018, alleging therein that he is residing along
with his family consisting of his wife, elder daughter and one younger son. The
victim is his daughter and her date of birth is 28.05.2001. On 03.06.2018, in the
night at about 8:00 PM, the victim along with the informant had dinner. During
dinner, it was noticed by the informant that his daughter was hurriedly eating her
food and during that time she told the informant that she wanted to go for a
nature's call and left without wearing chappals. Even after half an hour when his
daughter did not return from the nature's call, the informant searched for his
daughter in the village. They also enquired with their relatives, but the victim
was not found. Due to bad weather at night at about 11:30 PM, they stopped the
further search for the victim and returned home.
On 04.06.2018 at 6:00 AM, they got up and after a long period when the
victim did not return home, the informant enquired from the relatives residing
outside the village. In response, he was told that the victim was not with them.
The informant further alleged that 7 months prior he had cordial relations with
the family of the accused due to which the victim and the accused knew each
other. The informant enquired from the mother of the accused whether the
accused is in the house, the mother of the accused / appellant told the informant
that she had kicked out the appellant from the house prior to 15 days and has no
knowledge about his whereabouts. Therefore, the informant suspected that the
appellant might have kidnapped his daughter victim and therefore, lodged report.
3. On the basis of the said oral report (Exh.28), the investigation was set in
motion and FIR (Exh.29) was registered against the accused for the offence
punishable under Section 363 of the IPC. After 15 days, the informant received
phone call from the victim, who told him that she was with the accused. The
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informant asked the victim to come back to Pombhurna as the amount is
deposited in her name in the bank. The victim returned after a few days with the
accused to Pombhurna. When the victim was in the bank, the police came to the
bank and took the accused and the victim to Police Station. During investigation
the police recorded the statement of the victim, where she stated that she left
with the accused and stayed in a rented room at Ghuggus, where she stayed with
the appellant. It is during that period the victim had sexual intercourse with the
appellant. On the basis of the said statement, Sections 376 and 376(1) of IPC
and Section 4 of the POCSO Act were added. The Investigating Officer drew the
spot panchanama of the house of the victim, which is at Exh.32 and recorded the
statement of the witnesses. The accused / appellant was arrested vide arrest
panchanama (Exh.69) on 19.09.2018. The police seized the motorcycle of the
accused vide seizure panchanama Exh.35 and referred the victim and the
appellant for medical examination. The victim also showed the spot of incident
where the police drew the spot panchanama at Exh.75 and also gave a letter
which is at Exh.76 to the Judicial Magistrate First Class, Rajura for recording of
statement of the victim under Section 164 of the Code of Criminal Procedure (In
short, CR.P.C.). After obtaining medical examination reports and after
completing the investigation police filed charge-sheet.
4. The charges were framed vide Exh.23 by the Special Court for offence
punishable under Sections 363, 366, 376(1) of the IPC and Section 4 of the
POCSO Act. The accused / appellant abjured his guilt and claimed for trial.
5. During the trial, the prosecution examined 10 witnesses including PW 4
- victim, PW 1- father of the victim, PW 2 - Archana Bapuji Rathod - pancha
witness, PW 3 - Prashant Baburao Dhande - pancha witness, PW 5 - mother of
the victim, PW 6 - Dr. Monika Kotpalliwar, PW 7 - Sanjay Merulwar , PW 9 -
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Prashant Masram and PW 10 - Rekha Kale, Police Sub-Inspector. The
prosecution has examined in all ten witnesses.
6. After closure of the evidence for the prosecution, the accused was
examined under Section 313 of the Code of Criminal Procedure, 1973. The
accused did not lead any evidence in his defence, which consisted of false
implication at the instance of the informant i.e. father of the victim.
7. After appreciation of the evidence on record, the learned Special Judge
came to the conclusion that the accused had committed sexual intercourse with
the victim over a period of two months and that the medical evidence on record
sufficiently corroborated the allegation of penetrative sexual assault. The Trial
Court further held that, at the relevant time, the victim was a minor and,
therefore, any alleged consent was legally immaterial. On this reasoning, the
accused was convicted for the offences punishable under Section 376(1) of the
IPC read with Section 4 of the POCSO Act.
Insofar as the offences under Sections 363 and 366 of the IPC are
concerned, the learned Special Judge, relying upon the judgment of the Hon'ble
Supreme Court in S. Varadarajan v. State of Madras, AIR 1965 SC 945, held
that the victim had voluntarily eloped with the accused and that the element of
taking or enticing required under the said provisions was not established.
Consequently, the accused was acquitted of the charges under Sections 363 and
366 IPC. Being aggrieved by the conviction under Section 376(1) IPC and
Section 4 of the POCSO Act, the accused has preferred the present appeal.
8. Heard Mr. Mahesh Rai, learned Counsel for the appellant and learned
Additional Public Prosecutor for the respondent / State at considerable length.
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With the assistance of the learned counsels, I have perused the evidence and
material on record.
9. Mr. Rai, learned Counsel for the appellant, contended that on the date of
lodging of the report i.e. 04.06.2018, the victim, as per the date of birth stated by
her father (28.05.2001), was 17 years and 1 month old. He submitted that the
victim had voluntarily eloped with the appellant and remained in his company
for 4-5 months. During this period, she was in continuous telephonic contact
with her mother and had informed her that she was residing with the accused. It
was only on 19.09.2018, when her father called her to Pombhurna on the pretext
of some work at the bank, that she returned along with the appellant. Till that
time, no grievance or complaint had been raised by the victim alleging any
coercion, force, or lack of consent.
10. Learned Counsel further argued that during medical examination, the
victim and her mother gave a history to the Medical Officer that she had eloped
with the accused four months earlier; that they had married the next day at
Maregaon in the presence of her brother Sonu Karmavir Ramteke; and that they
resided in a rented room at Maregaon, where they had sexual intercourse 5-6
times per month. According to the learned Counsel, even this history indicates
that the relationship was consensual and founded on mutual affection.
11. He submitted that the prosecution has failed to prove the age of the
victim. PW-7 Sanjay, Clerk of the Nagar Panchayat, stated that the relevant birth
registration is at Serial No. 34, whereas the register extract shows the entry at
Serial No. 64. The name of the victim appears to have been inserted
subsequently, as no name is recorded in the corresponding column against the
name of the child. Likewise, the register extract as well as the birth certificate
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issued by the Nagar Panchayat, Saoli reflects the entry at Serial No. 64 and
records the father's name as "Arun Narayan Ramteke", whereas the undisputed
name of the victim's father is "Karnavir Narayan Ramteke". This discrepancy,
coupled with the apparent subsequent insertion of the child's name in the
register, according to the learned Counsel for the appellant, creates a serious
doubt regarding the authenticity of the birth record and renders the birth
certificate unreliable for determining the age of the victim. Therefore, according
to learned Counsel, the birth certificate cannot be treated as proof of age. He also
pointed out that the victim stated before the Court on 13.07.2022 that she was 22
years old, which would show that she was a major on the date of the alleged
incident (04.06.2018).
12. Learned Counsel submitted that in her statement under Section 164
Cr.P.C., the victim had admitted that she had voluntarily eloped with the
accused, had married him, and resided in a rented room as husband and wife;
and that she returned home only because her father called her regarding money
deposited in the bank. He submitted that the deposition of the victim contains
several contradictions and omissions, rendering her evidence unreliable.
13. It was further pointed out that the victim is now married to another
person and is residing at her matrimonial home. Considering her conduct, the
long duration of stay with the accused, and the absence of any complaint of
coercion, counsel argued that the prosecution has failed to establish that any
sexual act was against her will. Therefore, the offences under Section 376(1) IPC
or Section 4 of the POCSO Act are not attracted.
14. Learned Counsel further submitted that PW-1 (father of the victim)
claimed that the victim returned home after 19 days, whereas the evidence
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clearly shows that she returned after 3-4 months. He also pointed out that the
mother of the victim concealed the fact that she remained in telephonic contact
with the victim throughout the period of her stay with the appellant. Attention
was also drawn to the evidence of PW-8, the landlord, who stated that the
accused and the victim resided in his premises as husband and wife.
15. In support of his submissions, learned Counsel placed reliance on Ashik
Ramjan Ansari v. State of Maharashtra, 2023 SCC OnLine Bom 1390, and
Sachin Vitthalrao More v. State of Maharashtra, 2025 ALL MR 3426.
16. Per contra, the learned Additional Public Prosecutor submitted that the
defence cannot rely upon the statement of the victim recorded under Section 164
Cr.P.C., as the same has not been exhibited before the Trial Court. Only the
forwarding letter addressed to the Judicial Magistrate First Class, Rajura
(Exh.76) has been exhibited. Therefore, the contents of the Section 164
statement cannot form part of the evidentiary record.
17. He submitted that minor discrepancies in the testimony of the victim or
in cross-examination do not affect the core of the prosecution case. The Doctor's
report clearly records that the hymen was torn. The learned Addl.P.P. further
submitted that the victim had also deposed that she was ill-treated by the
accused.
18. He fairly conceded that the birth certificate on record contains an
incorrect name of the father, recorded as "Arun Narayan Ramteke" instead of
"Karnavir Narayan Ramteke", but argued that other prosecution witnesses have
nonetheless sufficiently supported the victim's version, and that such
discrepancies are not fatal to the prosecution case.
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19. According to the learned Addl.P.P., the Trial Court has duly appreciated
the oral and documentary evidence and has rightly held the appellant guilty of
the offence punishable under Section 376(1) IPC read with Section 4 of the
POCSO Act.
20. Before arriving at a final analysis and conclusion, it is necessary to
carefully evaluate the depositions of the prosecution witnesses and the evidence
led before the trial Court. The credibility, consistency, and reliability of the
testimonies must be scrutinised in light of the facts presented. Particular
attention must be given to whether the witnesses were able to provide a coherent
and truthful account of the events in question, and whether any documentary or
physical evidence corroborated their testimonies. Any contradictions,
inconsistencies, or material omissions must also be weighed in assessing the
overall strength of the prosecution's case.
21. PW1 (Exhibit 27) Karnavir Narayan Ramteke is the complainant in this
case. The victim is his daughter. The incident occurred on June 3, 2018. He was
residing in Satara Komti at the time. At about 7:30 p.m. on the day of the
incident, the victim went out for "nature's call" (to use the toilet) and did not
return after 15-20 minutes. He searched for her in the village and at relatives'
homes but could not find her. On June 4, 2018, he lodged a report at the police
station (Exh.28), and the FIR is Exh. 29. After 15 days, he received a phone call
from the victim, who informed him she was with the accused. He asked her to
come to Pombhurna under the pretext of depositing money in her bank account.
Four days after the call, the victim and the accused arrived at Pombhurna. Police
came to the bank, took the accused and the victim to the police station, and
interrogated the victim. The police also recorded his statement. He submits that
the victim's date of birth is May 28, 2001. The birth certificate is marked as Art.
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"A". In the cross-examination, he agreed that he solemnised the marriage of the
victim with a boy named Ashish Alone of Chiroli. He confirms that at the time of
the marriage, the victim was 19 years of age. He denies the suggestion that the
accused was not with the victim when she came to Pombhurna. He denies the
suggestion that his chief examination testimony is false.
22. PW2 Archana Bapuji Rathod is examined at Exhibit 31. She was the
panch witness in the present case. The witness is a Forest Guard stationed at
Shankar Pathar, Jivti. While on duty on June 4, 2018, she received instructions
from her officer, following a letter from the police, to report to the Umri Potdar
Police Station. She, along with Sanjay Khobragade, went to the police station on
June 5, 2018. She and Khobragade, accompanying the police, went to the scene
of the incident at Satara Komti. The location (the "spot of incident") was shown
to them by the complainant's wife. The police prepared the spot panchnama (a
record of the scene) in her presence. She signed the panchnama (Exhibit 32).
Police also took photographs (Arts. P-1 to P-4) from the spot.
In Cross-examination, the witness firmly denied the defence's
suggestions that she was unaware of the purpose for which the panchnama was
being prepared. It denied that she signed the panchnama at the police station
first, before visiting the spot. She further denied the defence's allegation that she
is deposing falsely at the behest of the police. The panch witness has not made
any statement as to the specific place where the offence is said to be committed,
i.e. rented room in Ghuggus The only place examined was the victim's house,
and the other two places.
23. PW3 Prashant Baburao Dhande is examined at Exhibit 34. He is also a
panch witness. The witness was repeatedly called by Umri Potdar Police Station
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to act as a panch (independent witness) during the seizure of evidence related to
the case. Police called the witness and, in his presence, seized the black Passion
Pro motorcycle of the accused. The seizure panchnama bears his signature
(Exhibit 35). On September 20, 2018, the Police called the witness again. Police
seized the victim's clothes and medical samples, including a white bra, coffee
colored leggings, blue colored kurti, and knicker. He signed the seizure
panchnamas (Exhibits 36 & 37), and their contents are confirmed as true and
correct. The seized articles were identified in Court: Kurta (Art. 1), Leggin (Art.
2), Knicker (Art. 3), and Bra (Art. 4). On September 22, 2018, the Police called
the witness again. Police seized the clothes of the accused and medical samples,
including a jeans pant, shirt, and underwear. He signed the seizure panchnamas
(Exhibits 38 & 39), confirming their truthfulness. The seized clothes were
identified in Court: Jeans Pant (Art. 5), Shirt (Art. 6), and Underwear (Art. 7).
The defence counsel was absent, and the accused, though present, declined to
proceed with the cross-examination. Therefore, the witness was not cross-
examined.
24. PW4 Victim is examined at Exhibit 41. The victim testifies about her
relationship with the accused, her disappearance, their time spent together, and
her eventual recovery by the police. The victim knows the accused. Their
families had a frequent visiting relationship. She was studying in 10 th Standard.
During Diwali holidays, her mother took her to the house of accused in
Ghuggus, where she stayed for 4-5 days. During her SSC examination in Saoli,
the accused came and told her he liked her. She initially rebuffed him, noting he
was the father of two children. Appellant promised to divorce his wife and marry
victim. After her exams, the appellant and victim communicated on phone, and
victim "fell in love." However, the victim still insisted on marrying as per her
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parents' instructions because the appellant had children. The appellant then
threatened to commit suicide, kill her, and kidnap her brother. Frightened, she
complied when appellant called to say he was coming to take her. On the date of
disappearance, i.e., June 3, 2018, victim told her mother that she was going for a
nature's call, met the appellant at the village boundary, threw away the water pot,
and left with him. They went to Maregaon and stayed with the sister-in-relation
of the appellant for about one month. The appellant worked as a driver there.
They then moved to Ghuggus, residing as tenants near Mata Mandir for about
two months. The appellant put a mangalsutra on her neck and committed sexual
intercourse with her for two months at Ghuggus. When the appellant learned her
parents were searching for her, he started beating her and tied her with a rope.
She called her mother. She told her that a lady (whom she suspected as the
girlfriend of appellant) came to their place, beat the appellant with a slipper, and
warned the victim that the appellant was a fraud who had cheated several ladies,
advising her to leave. Her mother called and told victim that money from Tendu
leaves plucking was deposited in her bank account. She convinced the appellant
to go to Pombhurna to withdraw the amount. While victim was at the bank, the
police arrived. The appellant attempted to flee but was caught. The police took
them to Umri Potdar Police Station and recorded her statement the same day.
The next day, police sent her for a medical examination and seized her clothes.
The victim denies nearly all suggestions challenging her testimony,
except for one point of travel. She denies that the appellant dropped her off at her
examination centre because of their acquaintance. She denies going to the house
of appellant repeatedly. She denies quarrelling with her mother and calling the
appellant to take her. She denies threatening to commit suicide if the accused did
not come and marry her. She denies residing with the accused for six months in
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Maregaon or one week at a friend's house in Ghuggus. She denies that the
appellant committed rape on her and denies that he committed any sexual
intercourse with her. She denies falsely deposing or lodging a false report at the
behest of her parents. She denies that her age at the time was 19 years. She
denies that the appellant ever took her forcefully. She denies that her chief
examination statement was given at her father's suggestion.
She confirms that she and the appellant came to Warora from Maregaon.
She confirms that the appellant brought her to Chandrapur for the Rakhi festival,
where her family came to the bus stop. She confirms the accused is the son of
her maternal uncle. She confirms that she stayed at the house of appellant in
Ghuggus only once for 2-3 days. She denies that the accused came to her village
only once after she saw him.
A careful examination of the testimony of the prosecutrix reveals material
inconsistencies that go to the root of the prosecution's case. The prosecutrix has
deposed that after eloping with the accused, they proceeded to the residence of
the sister of the accused at Ghuggus. If, as claimed in her deposition, the
appellant was continuously threatening and assaulting her, it remains
unexplained why no complaint was made by her upon reaching Ghuggus, a place
where she was in the company of other adults and ostensibly free to disclose any
such alleged coercion.
Further, the record indicates that the parents of the prosecutrix were well
acquainted with the family of the appellant. It is therefore not clear why, despite
such familiarity, no grievance or complaint was raised by them against the
appellant at any earlier stage, which casts doubt on the prosecution version.
Additionally, there exist substantial contradictions between the deposition of the
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prosecutrix and her earlier statement recorded under Section 164 CrPC.
Although the said Section 164 statement was not exhibited and therefore cannot
be relied upon as substantive evidence. However, the contradictions emerging
from the reference to the contents of that statement particularly the omission
therein of any allegation that the appellant beat her or tied her with ropes, and
the assertion that she had herself asked the appellant to marry her stand in stark
contrast with her deposition before the Court, where she alleged that the
appellant had threatened her into marriage. These inconsistencies, viewed
cumulatively, materially diminish the credibility of the prosecution's case and
create a reasonable doubt regarding the allegations made.
25. PW5 Jyoti Karnavir Ramteke (Exbit 42) the victim's mother, testifies
about the disappearance of her daughter, her search efforts, and the eventual
retrieval of the victim and apprehension of the appellant. She knows the
appellant, and his father treated her as his sister (indicating a close family
relationship). The incident occurred about 3-4 years ago (from the time of her
testimony). At about 8:00 p.m., the victim hurriedly finished dinner and said she
was going for nature's call. She did not return. After waiting till late night, they
started searching for her and called relatives, but she was not found. The next
day, they lodged a report at the police station. Her husband called the mother of
the appellant, who claimed she had ousted the accused from her house about 15
days prior. Based on this information, they lodged the report against the
appellant. After some days, the victim called her and told her that the accused
was ill-treating her. The victim asked her mother to devise a pretext to get her to
come home. The mother instructed the victim to return to the village under the
pretext that the Government had deposited money into her account for Tendu
leaves (Tendu leaves plucking wages). Her husband informed the police that the
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victim and accused were coming to the bank at Pombhurna. The police went to
the Pombhurna bank, arrested the accused, and took both the accused and the
victim to Umri Police Station. The victim narrated the incident to her mother,
and the police recorded her statement. The witness consistently denies all
suggestions made by the defense counsel that challenge the truthfulness of her
account. She denies falsely stating that her daughter went for nature's call and
did not return, or that she searched for her in the village. She denies falsely
stating that her husband called the mother of the accused. She confirms she had
good relations with the accused and his mother. She confirms she lodged the
report the next day. She admits that the victim did not tell her anything about
where she went at the time of lodging the report. She denies lodging a false
report or that the police did not record her statement at the time. She denies that
the victim told her nothing about the incident later. She denies that the accused
never misbehaved with the victim. She denies that she is deposing falsely.
26. PW6 Dr. Monika Kuber Kotpalliwar (Medical Expert) was working as a
Senior Resident Doctor at Government Medical College, Chandrapur, on
September 20, 2018, she examined the victim on September 20, 2018, after
receiving a requisition from Umri Potdar Police Station (Exhibit 45). She
confirmed she obtained the victim's consent before the examination. The OPD
paper is Exh. 46. She found that the victim's hymen was ruptured and the
margins were irregular. During the examination, the victim was experiencing her
menstruation period and there was bleeding. The Medical Report (Exh. 47) bears
her signature, and its contents are correct. She collected the victim's blood
sample, vaginal swab, and nail clippings. She confirmed filling out Form
(Exhibit 48) and Form No. 2 (Exh. 49) in his handwriting for sample
submission. She denied that she failed to obtain the victim's consent. She denied
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that the victim's hymen was not ruptured. She denied that she did not collect the
blood sample, vaginal swab, and nail clippings or that she did not send them for
Chemical Analysis (C.A.). She denied that he was deposing falsely.
27. PW-7 Sanjay Markandi Marulwar is examined at Exhibit 58. The witness
is a Clerk serving in the Nagar Panchayat, Saoli. His testimony is presented to
officially prove the date of birth of the victim. The witness brought the original
Birth Register from Nagar Panchayat Saoli. As per the register, the date of birth
of the victim is May 28, 2001. Her name is listed at Sr. No. 34. The victim was
born in her house at Saoli. The birth information was provided to the Nagar
Panchayat by one Sukhdeo Tawade. The witness filed a true copy of the birth
register (Exhibit 60) and the Birth Certificate issued by Nagar Panchayat Saoli
(Exhibit 61).
The witness generally defended the authenticity and accuracy of the
official records. He admitted that he is personally not aware of the contents
mentioned at Sr. No. 64. He denied that Sukhdeo Tawade did not come to their
office to provide the birth information. He denied that he is deposing falsely
regarding the victim's date of birth. He denied that the birth certificate (Exh. 61)
is false. He further denied that the victim was not born on May 28, 2001.
28. PW-8 Bandu Warloo Khandarkar is an independent witness examined at
Exhibit 63. He testified that his house is situated at Mhatardevi. He said that said
house was managed by his father. He stated that he knew the appellant and he
was the tenant at Mhatardevi. When he asked the appellant about the victim, he
said that the victim was his wife. He denied the allegation that he was deposing
falsely.
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29. PW-9 Prasant Vishwanath Masram is examined at Exhibit 64. He was
attached to Umari Potdar as API in the year 2018. The witness identified his
signature and endorsement (Exhibit 28). He identified the copy of the letter
shown to him during the proceeding (Exhibit 65). He agreed that he drew the
spot panchnama as shown by PW5. He had taken a photograph of the spot (Art.
P-1 & P-2). He recorded the statements of witnesses and further handed them
over to PSI Lanjewar.
30. PW-10- Rekha Bansi Kale (Exhibit 68) a PSI attached to Rajura Police
Station at the POCSO department, took over the investigation of Crime No.
7/2018 of Umari Potdar Police Station on September 19, 2018. The PSI received
the case diary for investigation. He then proceeded to record the statement of the
victim. He then sent a letter to the Mahila Dakshta Samiti. He then arrested the
accused (Exh. 69). He sent letters for the addition of sections (Exh. 70) and to
the Area Assistant (Exh. 71), referring the accused for medical examination
(Requisition Exh. 72, Duty Pass Exh. 73), seizing the motorcycle of the accused
(Seizure Panchnama Ex. 35). On September 20, 2018, the PSI referred the victim
for her medical examination (Letter Exh. 45, Duty Pass Exh. 74) and obtained
her medical report. He also Seized the clothes of the accused and victim (Seizure
Panchnamas Ex. 36). He also Recorded statements and supplementary
statements of witnesses. He Prepared the spot panchnama (Exh. 75) at the scene
shown by the victim mother. He Seized medical samples of the accused and
victim (Panchnamas Exhs. 37 & 38). Later, on September 26, 2018, he requested
the JMFC to record the victim's statement under Section 164 CrPC (Exh. 76).
Finally, on September 28, 2018, he sent the seized case property to the Chemical
Analyst (C.A.) (Letter Exh. 77, Duty Pass Exh. 78, Challan Exh. 79), and
thereafter, filed the charge-sheet in the Court. The Investigating Officer
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confirmed that he was attached to Rajura Police Station as PSI on the relevant
date but admitted he had not produced documentary proof of this.
He vehemently denied failing to receive the case diary. Also denied
failing to follow proper procedure (e.g., obtaining panchas' signatures, sending
the victim to the Mahila Dakshata Kendra). He denied drawing a false spot
panchnama. He denied failing to get the accused or victim medically examined
or filing a false medical report. He denied failing to seize evidence (motorcycle,
clothes, samples) or preparing false seizure panchnamas. He denied filing a false
charge-sheet against the accused or deposing falsely.
31. I have carefully considered the rival submissions and minutely examined
the entire record with the assistance of the learned Counsel appearing for the
parties. The central issues that arise for determination are: (i) whether the
prosecution has proved beyond reasonable doubt that the victim was a minor on
the date of the incident; (ii) whether the evidence establishes that the prosecutrix
was subjected to sexual intercourse against her will or without her consent; and
(iii) whether the testimony of the prosecutrix inspires sufficient confidence to
sustain the conviction of the appellant.
32. At the outset, it must be noted that the prosecution has heavily relied
upon the birth certificate (Exh.61) and birth register extract (Exh.60) to prove the
victim's age. However, a close scrutiny of these documents, coupled with the
testimony of PW-7, reveals material inconsistencies. PW-7 stated that the
victim's entry is reflected at Serial No. 34, whereas the extract produced before
the Court bears the entry at Serial No. 64. Furthermore, the name of the child is
conspicuously absent in the corresponding column of the register, and appears to
have been inserted subsequently. Most significantly, the father's name is
18 appeal-559-2023.odt
mentioned as "Arun Narayan Ramteke", whereas the undisputed name of the
victim's father is "Karnavir Narayan Ramteke". These discrepancies are not
mere clerical errors but cast serious doubt on the authenticity of the document
itself. In the absence of any corroborative documentary evidence such as school
records, the prosecution has failed to establish the age of the prosecutrix with the
degree of certainty required in criminal jurisprudence.
33. The victim, while deposing on 13.07.2022, stated that she was 22 years
of age. On calculation, this would make her approximately 18 years and 10
months old on the date of the alleged incident. In the face of doubtful birth
records and absence of reliable proof, this Court is constrained to hold that the
prosecution has failed to prove the minority of the victim beyond reasonable
doubt. Consequently, the protection of the POCSO Act cannot be invoked, and
the issue of consent becomes material.
34. The conduct of the prosecutrix, as emerging from the evidence of PW-1
and PW-5, also assumes significance. It is admitted that the prosecutrix remained
away from her parental home for a period of nearly 3-4 months and during this
period was in continuous telephonic contact with her mother. PW-5 has candidly
admitted that the prosecutrix herself requested her to devise a pretext to facilitate
her return home. It is further borne out from the record that the victim returned
only when her father informed her that money from Tendu-leaf collection had
been deposited in her bank account. This conduct does not support the
prosecution's allegation that the prosecutrix was under constant threat, coercion,
or confinement.
35. The evidence of PW-8, the landlord, is an independent piece of evidence.
He categorically stated that the accused and the prosecutrix resided at his
19 appeal-559-2023.odt
premises as husband and wife. His testimony has remained unshaken in cross-
examination. This lends considerable weight to the defence plea that the
prosecutrix was voluntarily residing with the accused.
36. Turning now to the testimony of the prosecutrix, it is well settled that the
testimony of a victim of sexual assault does not require corroboration as a matter
of course and can be made the basis of a conviction if it inspires confidence.
However, when the testimony is riddled with contradictions, material
improvements, and inherent improbabilities, the Court must approach it with
caution. In her examination-in-chief, the prosecutrix stated that the accused
threatened her, beat her, tied her with a rope, and had sexual intercourse with her
repeatedly for two months. In the cross-examination, however, she denied
having sexual intercourse with the accused and also denied staying with him for
two months at Ghuggus. These are not trivial inconsistencies but go to the very
foundation of the prosecution case.
37. It is well well-established principle that in rape cases, the sole testimony
of the rape victim is enough to convict the accused. However, it should be noted
that this testimony should be such that it should be consistent throughout the
trail. Minor inconsistencies should not be paid attention however any
contradiction or material omission should be dealt with caution. As it is the work
of the judicial system to balance the rights of society and the accused, it should
not have happened that in hope of protecting the rights of victim the courts
committed prima facie injustice with the accused. The said position of the law
was observed by the Hon'ble Apex Court in the case of Rai Sandeep @ Deepu
vs State Of NCT Of Delhi, 2012 (8) SCC 21. The Hon'ble Apex Court observed
the consistency of the witness and held that witness should be consistent from
beginning to end. In para 22 it is held -
20 appeal-559-2023.odt
"22. In our considered opinion, the 'sterling witness' should be of
a very high quality and caliber whose version should, therefore, be
unassailable. The Court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the
witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What would
be more relevant would be the consistency of the statement right
from the starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before the Court.
It should be natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication in the
version of such a witness. The witness should be in a position to
withstand the cross-examination of any length and howsoever
strenuous it may be and under no circumstance should give room
for any doubt as to the factum of the occurrence, the persons
involved, as well as, the sequence of it. Such a version should have
co-relation with each and everyone of other supporting material
such as the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert opinion.
The said version should consistently match with the version of
every other witness. It can even be stated that it should be akin to
the test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to hold
the accused guilty of the offence alleged against him. Only if the
version of such a witness qualifies the above test as well as all
other similar such tests to be applied, it can be held that such a
witness can be called as a 'sterling witness' whose version can be
accepted by the Court without any corroboration and based on
which the guilty can be punished. To be more precise, the version of
the said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said version in
material particulars to enable the Court trying the offence to rely
on the core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged."
38. In the present factual matrix, the testimony of the victim does not inspire
confidence, as she has not remained consistent in her narration of events. Though
the statement allegedly recorded under Section 164 Cr.P.C. has not been
exhibited and, therefore, cannot be treated as substantive evidence, it is
nevertheless apparent from the record that, at the time of such statement, the
victim did not disclose any allegation of ill-treatment, abuse, or illegal
confinement by the appellant. It is also an admitted position that after
21 appeal-559-2023.odt
approximately fifteen days of eloping, the victim was in communication with her
parents; however, even during that period, she did not convey that she was
subjected to any form of abuse at the hands of the appellant. Furthermore, her
parents, examined as PW1 and PW5, have not deposed to having noticed any
injuries on the victim or any conduct on the part of the appellant suggestive of
mistreatment.
In view of the aforesaid circumstances, the contention of the prosecution
that the victim's testimony is cogent, reliable, and consistent does not merit
acceptance.
39. It was argued by the appellant that the victim accompanied and resided
with the appellant of her own will. Consent needs voluntary participation. It is
given not only after the exercise of intelligence but also based on the knowledge
and moral quality of the act. After having freely exercised a choice between
resistance and assent, whether consent existed or not has to be ascertained on the
basis of the case. There is, indeed, a firm and fine distinction between consent
and submission. Every consent involves 'submission', but every 'submission'
does not have 'consent. Every 'consent' that a woman had submitted to the
promise of the accused does not necessarily indicate fact that a 'consent' existed
unless the evidence on record establishes that the sexual act that her 'consent'
that existed the prosecutrix had allowed, was accompanied with deliberation
after the mind had the evil on each side with the existing capacity and weighed,
as in a balance, the good and evil on each side and the power to withdraw the
assent according to one's will or pleasure. (Basu, N.D. and Chandrasekhar, K.
(2025) Basu's commentary on Bharatiya Nyaya (2 vols). 16th edn. New Delhi:
Whytes & Co.)
22 appeal-559-2023.odt
40. In the present factual matrix, the victim has deposed in her testimony that
when the appellant asked her for marriage, she said that the appellant was a
married man and as she only agreed to marriage once she received instructions
from her parents. This also proves that there was no deception involved present
factual matrix. She had sufficient knowledge. Further, she admitted that the
appellant had put a Mangal sutra around her neck and after that committed
sexual intercourse, which proves that she had consented to it because she
believed that they were in a marital relationship. The sexual intercourse was
committed when the victim had due knowledge and understood the moral quality
of the act. The conduct of the victim is such that it acted as the consent. The
same principle was reflected in the reasoning of the Hon'ble Supreme Court in
paragraph 12 in the case of Amol Kaini Rajan v. State of Kerala, (2013) 9 SCC
113 which reads thus:
"12. Section 375 IPC defines the expression "rape", which
indicates that the first clause operates, where the woman is in
possession of her senses, and therefore, capable of consenting but
the act is done against her will; and second, where it is done
without her consent; the third, fourth and fifth, when there is
consent, but it is not such a consent as excuses the offender,
because it is obtained by putting her on any person in whom she is
interested in fear of death or of hurt. The expression "against her
will" means that the act must have been done in spite of the
opposition of the woman. An inference as to consent can be drawn
if only based on evidence or probabilities of the case. "Consent"
is also stated to be an act of reason coupled with deliberation. It
denotes an active will in the mind of a person to permit the doing
of an act complained of. Section 90 IPC refers to the expression
"consent". Section 90, though, does not define "consent", but
describes what is not consent. "Consent", for the purpose of
Section 375, requires voluntary participation not only after the
exercise of intelligence based on the knowledge of the significance
and moral quality of the act but after having fully exercised the
choice between resistance and assent. Whether there was consent
or not, is to be ascertained only on a careful study of all relevant
circumstances. (See State of H.P. v. Mango Ram [(2000) 7 SCC
224: 2000 SCC (Cri) 1331])
23 appeal-559-2023.odt
41. This Court finds the merit in the argument of the appellant that the act
committed by the appellant was consensual and the victim considered herself as
the wife of the appellant. The intercourse was a result of mutual love.
42. The victim has stated that the accused tied her with ropes and has
testified that the appellant used to assault her. She also testified that she told her
mother through a phone call that one woman had hit the appellant and told the
victim that the appellant has cheated many women. She told her mother that the
victim thought that the woman was the girlfriend of the appellant. It is to be
noted that the mother's testimony nowhere mentions this, nor does the
complainant's testimony corroborate this fact. Additionally, the complaint and
PW5 testimony nowhere mention the ill-treatment of the appellant towards the
victim. Further, the victim has had multiple occasions from the date of the
incident to the recovery during which she can make the complaint. These
material facts do not inspire confidence in the testimony of the victim. The
guideline on the testimony of a victim was discussed by the Hon'ble Apex Court
in the case of Vimal Suresh Kamble v. Chaluverapinake Apal S.P., (2003) 3
SCC 175, Paragraph 18 reads thus:
"18. However, the evidence of the prosecutrix does not inspire
confidence. The occurrence took place at about 12.30 p.m. on a
Sunday. The High Court has observed that on a Sunday, if the
prosecutrix had raised an alarm it would have been heard by many
persons who would have immediately come to her rescue,
particularly in such a society where Respondent 1 resided. On a
Sunday most of the residents are at home at about 12.30 p.m. and,
therefore, it was surprising that no one heard the cries of the
appellant when she was raped by Respondent 1. Thereafter also the
conduct of the prosecutrix is rather surprising. She was loitering in
the locality till about 2.30 p.m. i.e. for about 2 hours after the
incident. She again went to the flat of Respondent 1 on the second
floor after having come down immediately after the occurrence.
The reason given by her is that she wanted to return the keys to
Respondent 1. At one stage she stated that she had decided to hand
over the keys to one of the neighbours, but actually she did not
hand over the keys to anyone. When she went up to the flat of
24 appeal-559-2023.odt
Respondent 1 she met PW 2 and his wife. But she did not tell them
about the incident. She then came back home and went to sleep. In
the evening when her husband came she did not report the incident
to him. At night, as usual, she cooked food for the family and went
to sleep. Next morning she came to the society and attended to her
routine work. Admittedly, she worked in four flats on that day but
she did not report the matter to anyone. Later in the afternoon she
went to the house of her brother. It is there for the first time that she
reported the matter to her sister-in-law Smt Tarabai, who has not
been examined. Only thereafter they went to the police station and
lodged the report at about 3.00 p.m."
Thus, the Court finds merit in the argument that the victim's conduct was
such that she had a consensual relationship with the accused. Additionally, the
argument is that the victim added false allegations that had no nexus to the actual
incident to harass the appellant, stands proved.
43. The panch witness, i.e. PW2 and PW3, in their depositions, have
nowhere mentioned that they have seen the places where the actual incident has
happened. The victim has claimed that the accused has assaulted her, but the
place where such an incident is said to have occurred, i.e. in Ghuggus and
Mhatardevi has not been examined. This indicates a serious lacuna in the
investigation.
44. Further, discrepancies appear as to the places of stay, duration of stay,
and the nature of the relationship between the parties. The allegation of threats
and beatings is wholly inconsistent with her conduct of freely communicating
with her mother and travelling with the accused to different places, including her
appearance at Warora and Chandrapur for festivals. Her behaviour does not
reflect that of a person acting under duress or coercion.
45. Merely because the medical examination notes that the hymen was found
torn, the same, by itself, cannot be treated as conclusive proof of forcible sexual
intercourse. It is well settled that a torn hymen is not determinative of the
25 appeal-559-2023.odt
question of consent, nor does it necessarily imply recent or non-consensual
penetration. In the present case, the conduct of the prosecutrix, as reflected from
the evidence, indicates that she neither raised any alarm nor offered resistance,
and her subsequent behaviour demonstrates voluntary companionship with the
appellant over a considerable period. When the medical findings are assessed in
conjunction with these surrounding circumstances, the prosecution has not been
able to establish that the physical relationship, if any, was the result of coercion
or force. Accordingly, the medical evidence, in the absence of corroborative
material demonstrating lack of consent, does not by itself advance the
prosecution's case to the threshold required for establishing the offence of rape.
46. This High Court, in Sachin Vitthalrao More (supra) has reiterated that
prolonged companionship, voluntary residence with the accused, and lack of
credible evidence of coercion must result in acquittal.
In Sachin Vitthalrao More (supra), this Court in paragraphs 37 to 39 read thus:
37. On appreciation of the evidence, it reveals that there was love
affair between the victim and the accused. Out of the love affair,
physical relationship was developed between them.
38. There is no dispute as to the fact that at the time of initial
physical relationship, the victim was below 18 years of age, but
she was on the verge of attaining the age of majority. Admittedly,
the consent of the victim is not relevant, but on perusal of the
entire evidence and the entire incident narrated by the victim and
her cross examination shows that there was love affair between
the victim and the accused and out that love affair the physical
relationship was developed between them. Though the victim
visited along with the accused at various places and travelled by
the public transport, she did not resist the accused in any manner
and not complained that she is enticed or forcefully taken by the
accused. The evidence further shows the she stayed along with
accused at rented premises also, but she never shown her
displeasure as to such relationship. At every point of time, she
had opportunity to resist the act of the accused and disclose the
fact of forceful sexual assault by the accused, but she has not
made any complaint. The prosecution raised a point that her
26 appeal-559-2023.odt
consent is not relevant at all. However, the incident whichever
happened is to be taken into consideration in the light of the fact
that out of the love affair, the victim and the accused came
together and developed physical relationship. The relationship
was developed between them out of physical attraction about
each other. It is not the case that the accused had subjected her
for forceful sexual assault out of lust.
39. All the facts proved in this case clearly indicate that the victim
went along with the accused out of love affair between them. The
history narrated by her to the medical officer shows that as there
was love affair between the victim and the accused and out of
love affair the physical relationship was developed between them,
resulted into pregnancy and she delivered a male child and they
are concluded to be biological parents of that child. Thus, in
other words, there was no forceful sexual assault by the accused
with sexual intent. But, two teenagers came together out of the
love affair and physical relationship was developed between
them. Such type of cases are to be treated differently."
47. Applying these principles to the facts of the present case, this Court finds
that the prosecution has failed to prove, beyond reasonable doubt, either that the
victim was a minor or that the sexual intercourse, if any, was without her
consent. The testimony of the prosecutrix suffers from material inconsistencies,
contradictions, and improvements, which destroy the reliability of her evidence.
The independent witness supports the version of the defence. The prosecution
has failed to present a coherent, credible, and trustworthy narrative.
48. In criminal law, the burden rests squarely on the prosecution to establish
the guilt of the accused beyond reasonable doubt. Where two views are possible,
the view favouring the accused must prevail. Suspicion, however grave, can
never substitute proof. The cumulative effect of the inconsistencies, the doubtful
age of the prosecutrix, her conduct throughout, and the lack of reliable
27 appeal-559-2023.odt
supporting evidence creates a clear and reasonable doubt about the prosecution
case.
49. In view of the foregoing discussion, this Court is of the considered
opinion that the conviction of the appellant under Section 376(1) of the IPC and
Section 4 of the POCSO Act is wholly unsustainable. The appellant is entitled to
the benefit of doubt. Consequently, the impugned judgment and order of
conviction passed by the learned Special Judge cannot be upheld. The entire
gamut of evidence qua the factual matrix unequivocally compels this Court to
hold that the prosecution has conspicuously failed in proving that the victim is
minor in terms of POCSO and that the accused/appellant has committed rape on
her. On the other hand, the appellant has successfully established, beyond a
reasonable doubt, that the appellant has not committed an act of rape upon a
minor girl. The appellant successfully rebutted the statutory presumption under
Section 29 of the POCSO Act. As such, the prosecution failed in bringing home
the guilt of accused. Thus, the appeal deserves to be allowed.
The appeal is allowed. The conviction and sentence recorded by the
learned Special Judge in Special (POCSO) Case No. 80/2018 dated 28-07-2023
for the offences punishable under Section 4 of the POCSO Act, read with
Section 376(1) of the IPC are hereby set aside. The appellant is acquitted of all
charges. The bail bonds stand cancelled. The appellant be set at liberty forthwith,
if his custody is not required in any other case.
(NIVEDITA P. MEHTA)
Signed by: Mr. M.P.MPDeshpande
Deshpande
Designation: PA To Honourable Judge
Date: 19/11/2025 16:53:23
