Bombay High Court
Bandu Maroti Pawar vs State Of Mah. Thr. Pso Ghatanji ... on 14 October, 2025
Author: Anil L. Pansare
Bench: Anil L. Pansare
2025:BHC-NAG:10823-DB
941-apeal-23-2021.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 23 OF 2021
Bandu Maroti Pawar,
Convict No. C-4080,
aged about 35 years,
District Prison, Yavatmal.
...APPELLANT
Versus
1] The State of Maharashtra,
through P.S.O. Ghatanji,
District - Yavatmal.
2] XYZ (Victim) in Crime No. 456/2019,
Registered in P.S.O. Ghatanji, District - Yavatmal.
...RESPONDENTS.
Mr. Suyog P. Deshpande, Counsel for the appellant (appointed).
Mr. I.J. Damle, A.P.P. for respondent no.1/State.
.....
CORAM : ANIL L. PANSARE AND
Y.G. KHOBRAGADE, JJ.
ARGUMENTS WERE HEARD ON : 9/10/2025
JUDGMENT IS PRONOUNCED ON : 14/10/2025
JUDGMENT (PER : ANIL L. PANSARE, J.) :
The appellant has assailed judgment dated
24/6/2020 passed by the Sessions/Special Judge, Yavatmal, in
Special Case No. 56/2019. He has been convicted for the
offences punishable under Sections 376(2)(f), 376(2)(i),
376(2)(n) and 506 of the Indian Penal Code, 1860 (for short
"IPC"), and Sections 4, 6 and 10 of the Protection of Children
From Sexual Offences Act, 2012 (for short "POCSO Act"), and
Section 235(2) of the Code of Criminal Procedure, 1973 (for
short "Cr.P.C.").
2] The incident has allegedly occurred on 15/8/2019
and 16/8/2019. The appellant's wife (informant) had been to
field for work. The appellant and his daughter were at home,
when the appellant is said to have committed penetrative
sexual assault on his daughter. Accordingly, he has been
convicted for the offences punishable under the provisions of
IPC as also POCSO Act.
3] Briefly stated, the facts are, on 16/8/2019, when
the appellant's wife returned back home, she found her
daughter to be nervous and scared. She accordingly asked her
as to what had happened, to which, the daughter narrated the
incident saying that the appellant committed penetrative sexual
assault. The wife then took her daughter to her (wife) maternal
house, where her brother was also residing. She informed her
mother and brother about the incident. At that time, the
appellant came there and threatened his wife by saying that if
she doesn't follow him, he will beat her and daughter. The wife
did not follow him, but approached Ghatanji Police Station and
lodged report. Investigation was then carried out and
chargesheet filed, which culminated into conviction of the
appellant.
4] We have heard Mr. Suyog P. Deshpande, learned
Counsel for the appellant, and Mr. I.J. Damle, learned A.P.P. for
respondent no.1/State. We have gone through the evidence,
documents, impugned judgment and other material. We will
refer to same to the extent necessary to decide the following
points that arise for our consideration. We have recorded
finding thereon for the reasons to follow.
Sr. No. Points Finding
1 Whether the prosecution proved In the negative
that on 15/8/2019 and 16/8/2019,
the appellant repeatedly
committed penetrative sexual
assault on his daughter ?
2 Whether interference is called for in In the affirmative
the impugned judgment ?
3 What order ? Appeal is allowed
REASONS
As to point nos. 1 and 2
5] The point that requires answer is, whether the
allegations made by the appellant's wife and daughter were
proved. The Counsel for the appellant has not disputed that his
daughter was minor. His argument is that the daughter has
been tutored by her mother and relatives because of strained
relationship between appellant and his wife, as also, wife's
relatives.
6] Accordingly, we have, with the assistance of both
sides, gone through the testimony of the appellant's wife
(informant) and daughter (victim).
7] The appellant's wife is examined as first witness. In
chief-examination, she has supported the case of the
prosecution, and deposed in terms of the report, which she
lodged with the Police Station. In cross-examination, she
deposed that many a times her daughter and husband were at
home. She admitted that on 14/8/2019 (one day prior to the
incident), there occurred quarrel between appellant and his
brother-in-law (brother of the witness). She also admitted that
because of the quarrel, the appellant had also quarreled with
her. She then said that thereafter, she and her daughter went to
her mother's house. She then denied that she stayed at her
mother's house for entire night. However, immediately
thereafter, she said that she stayed at her mother's house. It is
then brought on record that relationship between her and
appellant was not cordial and that she was residing at mother's
house for three years after marriage. It is also brought on
record that while lodging report, her brother was with her.
Thereafter, a case was put up that because of such strained
relationship, false report was lodged, which the witness denied.
8] The Counsel for the appellant argued that evidence
show that on 14/8/2019, there occurred quarrel between
appellant and his brother-in-law, followed by quarrel between
appellant and his wife. The appellant's wife and daughter then
proceeded to the house of wife's mother, where they stayed for
entire night. It is nobody's case that the appellant's wife and
daughter came back home, either on 15 th morning or at any
time prior to the alleged incident. The Counsel further argued
that the appellant's wife has also admitted that her relations
with the appellant were strain, and in fact, she stayed at her
maternal house for three years even after marriage.
Accordingly, he argued that possibility of false implication
cannot be ruled out.
9] The Counsel then invited our attention to the
evidence of daughter (victim). In chief-examination, she
deposed that the incident occurred in the afternoon of
15/8/2019. The appellant asked her to press legs, thereafter,
asked her to remove pant, she refused, however, the appellant
removed it. He then removed his pant, and committed rape.
The appellant gave her life threat if she would disclose the
incident to anybody. Therefore, she did not disclose it to her
mother. Similar such incident occurred on next day also. Her
mother came back from the field in the evening. She asked her
(daughter) as to why is she so scared, upon which, she
informed about the incident.
10] In cross-examination, she deposed that she is more
inclined towards her mother and listen to her mother. She
further said that she follows her mother's instructions. She then
said that on 15/8/2019, she had been to School for a function.
She then corrected herself and said that she did not go to
School on that day, however, she deposed that on 15/8/2019,
she was playing at her house with her friend and she continued
playing until her mother came back. She also admitted that the
relations between appellant and her mother were strained. She
then said that there occurred quarrel between appellant and
her mother and, therefore, her mother got furious and took her
to the house of her grandmother. Thereafter, they lodged report
and stayed at her grandmother's house. It is then brought on
record that her mother, grand-parents and maternal uncle were
annoyed with her father. She then deposed that because of
which they all said that such complaint is to be lodged against
her father.
11] The Counsel for appellant rightly argued that
victim's cross-examination suppliments the argument of tutored
story. Her statement that her mother, grand-parents and
maternal uncle were annoyed with the appellant and that
therefore, they said that such a complaint is to be lodged
against him, is a statement that would destroy the
prosecution's case.
12] In this regard, we called upon the learned A.P.P. to
show us from the judgment as to how this part of the evidence
has been dealt with by the trial Court to which the learned
A.P.P. has invited our attention to paragraph 26 of the
judgment, which reads as under :
"26. The evidence of the victim show as to how she was
sexually assaulted by the accused in the house. The
statement under section 164 of Cr.P.C. has stated in
what manner the accused has done sexual assault on
the victim. The victim has stood the test of cross-
examination and has categorically stated as to how
sexual assault took place with her."
13] Thus, the trial Court has relied upon the statement
under Section 164 of the Cr.P.C. and straight away held that the
victim has withstood the cross-examination. This finding is
apparently erroneous inasmuch as the witness has nowhere
stated that her statement was recorded before the Court. In any
case, such statement will not replace the substantive evidence.
Secondly, the finding that the victim withstood cross-
examination runs contrary to what we have noted above. The
victim has stated that she was playing with her friend until her
mother came and has also stated that the report is lodged at
the instance of her mother and relatives. She is exposed in the
cross-examination.
14] The learned A.P.P. has then invited our attention to
certain observations made by the trial Court in paragraph 19 of
the judgment. According to the learned Judge, there is no
material on record to show that the victim was under influence
of her mother.
15] This finding is again erroneous inasmuch as the
victim has categorically said that she behaves as instructed by
her mother and has more inclination towards her mother.
Despite such status, the learned Judge has observed as above
and further said that there is no material that the victim was
tutored, when she states that the report was lodged at the
instance of mother and her relatives.
16] The learned Judge has then rendered a finding that
her evidence before the Court is consistent with her statement
under Section 164 of the Cr.P.C. and that her hymen was
slightly torn at 6 o'clock position. On the basis of such
evidence, he jumped to the conclusion that the appellant had
forceful sexual intercourse with his daughter.
17] Thus, the learned Judge has relied upon the
statement under Section 164 of the Cr.P.C. without the same
having been proved. In any case, and as stated above, the
substantive piece of evidence is something that would weigh
over other evidence, particularly, when statement under
Section 164 of the Cr.P.C. was not even proved. So far as status
of hymen is concerned, PW5 doctor deposed that there was no
evidence of injury on genital area. There was no evidence of
bleeding and edema as regards hymen. The doctor also
admitted that hymen can be torn by cycling and jumping. She,
however, volunteered that where torn was at 6 o'clock position,
it cannot be because of cycling and jumping.
18] The evidence of doctor would only indicate that the
victim had undergone sexual intercourse, however, there is no
evidence that the appellant is the one, who is responsible for
the same. The doctor's evidence, saying that there were no
injuries on genital area of victim, nor was there bleeding and
edema, is supporting the defence. As such, it is not always
necessary that there would occur injury, however, the trial
Court observed that there was human blood on quilt (wakal)
and hymen was torn showing that the appellant had forceful
sexual intercourse with his daughter. In that context, the
evidence of doctor that there was no evidence of injury on
genital area and no evidence of bleeding and edema, is
relevant. Thus, doctor's evidence will be also not helpful to the
prosecution.
19] Put all together, the testimony of the informant -
mother and victim - daughter doesn't inspire confidence,
rather possibility of the appellant having been roped in cannot
be ruled out. The learned Judge failed to note vital admissions
in cross-examinations of both the witnesses. The finding,
therefore, will have to be over-turn.
20] As such, the prosecution has examined other
witnesses also, but their evidence would not lead to a different
conclusion. PW3 is maternal uncle, whose evidence will only
certify the strained relations, PW4 is a panch witness to spot
panchanama, PW5 is doctor, whose evidence is discussed and
PW6 is Investigating Officer.
21] Thus, the prosecution failed to prove the
allegations. Accordingly, point no.1 is answered in the negative
and point no.2 is answered in the affirmative.
22] As to point no.3, having answered first two points
in the manner hereinabove, the judgment of the trial Court is
liable to be set aside. Hence, we proceed to pass following
order :
ORDER
I] The appeal is allowed.
II] The judgment dated 24/6/2020 passed by the
Sessions/Special Judge, Yavatmal, in Special Case No.
56/2019, is quashed and set aside.
III] The appellant is acquitted of all the charges. He
shall be released forthwith, if not required in any other case.
IV] Fees of the Counsel appointed to represent the
appellant be quantified and paid as per Rules.
JUDGE JUDGE
Sumit
Signed by: Mr. Sumit Agrawal
Designation: PS To Honourable Judge
Date: 14/10/2025 14:58:09
