Bombay High Court
Balu Kisan Pandit vs The State Of Maharashtra And Another on 16 October, 2025
2025:BHC-AUG:29461
1 APEAL408.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 408 OF 2023
Balu S/o Kisan Pandit,
Age : about 44 Years, Occu: Labour,
R/o Navnathnagar, Garkheda Parisar,
Aurangabad, Dist. Aurangabad. ...Appellant
Versus
1. The State of Maharashtra,
Through Police Station Officer,
Police Station, Mukundwadi,
Tq. & Dist. Aurangabad.
2. X. Y. Z. ...Respondents
.....
Mr. Ravindra B. Narvade Patil - Advocate [appointed through Legal Aid]
for the Appellant
Mr. M. K. Goyanka - APP for Respondent No. 1 / State
Mr. Mahendra G. Kochar - Advocate [appointed through Legal Aid] for
Respondent No. 2
.....
CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 08.10.2025
PRONOUNCED ON : 16.10.2025
JUDGMENT :
-
1. This is an Appeal against Conviction under Section 374(2)
of the Code of Criminal Procedure [hereinafter referred to as 'Cr.P.C.']
against the Judgment and Order dated 22.12.2021 by the learned
Special Judge (POCSO), Aurangabad, in Spl. Case [POCSO]
No.82/2015, convicting and sentencing the Appellant as follows: -
"ORDER
1) Accused Balu Kisan Pandit is hereby convicted for the offence
punishable u/sec. 376(2)(f), 506 of IPC, u/sec.4 & 6 of the
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POCSO Act and u/sec.11 of Prohibition of Child Marriage Act,
vide Section 235(2) Cr.P.C.
2) For commission of offence punishable u/sec.376(2)(f) of IPC,
the accused shall suffer rigorous imprisonment of Ten years and
shall pay a fine of Rs.5000/ (Rupees Five Thousand Only), in
default to suffer S.I. for one month.
3) For offence punishable u/sec.506 of IPC, he shall suffer rigorous
imprisonment of three months and shall pay a fine of Rs.1000/
(Rupees One Thousand Only), in default to suffer S.I. for one
week.
4) For offence punishable u/sec.4 of POCSO Act, he shall suffer
rigorous imprisonment of Ten years and shall pay a fine of
Rs.5000/ (Rupees Five Thousands Only), in default to suffer S.I.
for one month.
5) For offence punishable u/sec.6 of POCSO Act, he shall suffer
rigorous imprisonment of twenty years and shall pay a fine of
Rs.5000/ (Rupees Five Thousands Only), in default to suffer S.I.
for one month.
6) For offence punishable u/sec.11 of the Prohibition of Child
Marriage Act, 2006, he shall suffer rigorous imprisonment of
three months and shall pay a fine of Rs.1000/ (Rupees One
Thousand Only), in default to suffer S.I. for one week.
2. The Prosecution's case, as revealed from the Report, is as
under : -
[a] The Prosecutrix / Victim was residing with her mother,
brother, sister and the Appellant, who is her step father, at
Navnathnagar, Garkheda, Aurangabad. She was taking
education in the School. From the year 2014, the Appellant
started keeping an evil eye on her. The Victim's mother was
in catering work and during marriage season, used to be out
of house for two to three days. During that time, the
Appellant used to perform forceful sexual intercourse with
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the Victim. When the Victim resisted, he threatened her to
kill. The Appellant got the Victim married to his nephew in
May-2015. After marriage, when the Victim came to her
matrimonial home, the Appellant again raped her and
threatened her with dire consequences. Eventually, the
Victim informed her mother and report was lodged with the
concerned Police Station. The Victim was referred for
medical examination, her clothes were seized, the statement
of witnesses were recorded and the spot panchanama was
conducted. The Appellant came to be arrested. The clothes
of the Victim and that of the Appellant came to be seized.
The seized articles were sent for Chemical Analysis. The
document in respect of the age of the Victim was collected.
On completion of investigation, the Appellant came to be
Charge-sheeted.
[b] On committal, the learned Trial Court framed the Charge
against the Appellant for offences punishable under
Sections 376 r/w 376(f), 504, 506 of the Indian Penal Code
and 4 r/w 3, 6 and 11 of the Protection of Children from
Sexual Offences Act, below Exh. 5, to which the Appellant
pleaded not guilty and claimed to be tried. To establish the
Charge, the Prosecution examined in all five (5) witnesses.
The Victim is examined as PW1 below Exh.36. Kaduba
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Bhikaji Bhujinge, the Panch for Spot and seizure of Victim's
clothes, is examined as PW2 below Exh. 44. Dr. Rupali
Atmaram Gaikwad, Medical Officer, is examineed as PW3
below Exh. 51. Namdeo Shahadrao Chavan, the
Headmaster of the Zilla Parishad Primary School at Wasadi,
Tq. Kannad, is examined as PW4 below Exh. 67. Eknath
Bhagaji Ware, the Investigating Officer, is examined as PW5
below Exh. 75. The Spot Panchanama [Exh.45], the
medical examination papers of the Victim [Exh. 53], the CA
reports [Exhs. 55, 56 and 57], the Cloth Seizure
Panchanama of the Appellant [Exh. 62], the medical
examination report of the Appellant [Exh. 63], the
documents in respect of the date of birth of the Victim [Exh.
68 to 71], and other relevant documents are brought on
record by the Prosecution. After the Prosecution filed
Evidence Closure Purisi, the statement of the Appellant
came to be recorded under Section 313(1)(b) of the Cr.P.C.
After appreciating the evidence on record, the learned Trial
Court passed the impugned Judgment and Order convicting
the Appellant as above.
3. It is submitted by the learned Advocate for the Appellant
that, two days before the Judgment, the additional charge was framed.
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The Prosecution examined the interested witnesses. As the Appellant
got the Victim married to his nephew, false case is registered against
him. The school record do not show that the date of birth was based on
the birth certificate. The evidence on record do not establish the
Charge. In the alternative, he submitted that the sentence imposed by
the learned Trial Court is exorbitant and the same be brought down to
the minimum. In support of his submissions, he cited the judgment in
Satauram Mandavi v. State of Chhattisgarh, 2025 SCC OnLine SC 1516 .
He submitted that the Appeal be allowed.
4. It is submitted by the learned APP that, the evidence on
record proved the Charge. The Appellant changed his defence from time
to time. The Victim stuck to her version. There is corroboration by
medical evidence. The age of the Victim has been proved. There is no
denial by the Appellant in the cross-examination. The learned Trial
Court rightly convicted and sentenced the Appellant, and no leniency be
shown to the Appellant, and the Appeal be dismissed.
5. The learned Advocate for the Victim submitted that the
Victim has given explanation as to why she kept mum for some period.
The Charge is proved by leading the evidence. The CA reports
corroborate the testimony of the Victim. The Prosecution's case
remained intact in the cross-examination. The Appellant is the step
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father of the Victim and the learned Trial Court has rightly convicted
and sentenced the Appellant and the Appeal be dismissed.
6. The Prosecution's case mainly rests on the testimony of the
Victim, who is examined as PW1. Her evidence show that, in the year
2015, she was residing with her mother, siblings and the Appellant. The
Appellant was the step father and all of them were residing together at
Navnathnagar. Prior to 2014, the Appellant's conduct was proper,
however, from 2014, he started keeping an evil eye on her. When her
mother used to go out for catering work during marriage season for two
to three days, the Appellant used to rape her. When she resisted and
told him that it was wrong, he threatened to kill her, her mother and the
siblings. Thereafter, the Appellant compelled the Victim to marry his
nephew and performed their marriage on 15.05.2015. She stayed at her
matrimonial house for two to three days. As her mother was not well,
the Appellant brought her back and thereafter again raped her. When
she resisted and told him that she was now married, the Appellant again
threatened to kill her and assaulted. The said incident of rape took
place on 17.07.2015. The Victim informed her mother, who in turn
informed her grandmother and maternal aunt. The Victim along with
her mother and grandmother went to Mukundwadi Police Station and
lodged report below Exh. 37. Her further evidence shows that, her
statement was recorded under Section 164 of the Code of Criminal
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Procedure. She was referred to Government Hospital and Training
Institute [GHATI] for medical examination. Her clothes came to be
seized, which she identified during the course of her examination. She
identified the Appellant as the Accused.
7. By referring the report to the Victim, it is brought in her
cross-examination that, specific date and day in respect of rape is not
mentioned in the report. It is not expected from the Victim to give the
specific date and day of such incidents. However, in her cross-
examination, there is a reiteration of incident of rape dated 17.07.2015.
Her cross-examination shows that, in 2015, the Victim was taking
education in the High School. Not informing her sister, mother and the
grandmother about the incident immediately is quite natural as her
evidence shows that, she was threatened to kill and she was residing
with the Appellant. Her evidence shows that, whenever he mother was
out of the house for work, the Appellant used to rape her. It cannot be
said an unnatural conduct, particularly when she was dependent on her
parents and the Appellant was the head of the family. Therefore, her
immediate non-disclosure of the incident of rape is natural and cannot
be the reason to doubt her version. Her evidence shows that, it was
consistent with her previous statements. Nothing has come in her cross-
examination to show that, her testimony was was an improvement. Her
evidence is natural and without any inconsistency. Nothing has come in
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her evidence to show that, she had any reason to falsely implicate the
Appellant. There is no reason to discard her testimony as it inspires
confidence. Thus, her testimony is accepted.
8. The evidence of PW4 - Namdeo Shahadrao Chavan, shows
that, he was the Headmaster of Zilla Parishad Primary School at Wasadi,
Tq. Kannad. The Victim was the student of that School. She was
admitted in the School on 14.06.2004 in the first standard. The
necessary entry regarding the Victim, including her date of birth, was
made in the school record on the basis of a request application, the
printed admission application, and a copy of the vaccination card
submitted by her parents. The evidence show that, this witness brought
the original record with him and the copies are taken on record. As per
the School record, the date of birth of the Victim was 13.08.1997. In the
cross, it has come that the birth certificate was not on record and the
copy of vaccination card was taken for satisfaction about the date of
birth. The evidence of this witness clearly shows that, the date of birth
was entered in the school record on the basis of the information
provided by the parents of the Victim and the same was entered during
the regular functioning of the School. The school record showing the
date of birth of the Victim was brought from the proper custody. Merely
because this witness was not the Headmaster at the time when the entry
was made, can be no reason to discard the evidence in the nature of
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school record which was kept in the regular course of functioning of the
School. It is clear from his evidence that, the date of birth of the Victim
was entered at the relevant time of her school admission. The cross-
examination could not create any dent to the testimony of this witness.
The prosecution proved the date of birth of the Victim through this
evidence.
9. Further, there is a medical evidence on the record in the
nature of testimony of the PW3 Medical Officer. Her evidence shows
that in the year 2015, she was an Assistant Professor in GHATI. On
19.07.2015, Mukundwadi Police had brought the Victim for medical
examination. She took the consent of the Victim and examined her. She
recorded the history of sexual assault on the Victim as per her say. She
collected the samples. On physical examination of the Victims, she
found that, there were signs suggestive of recent forceful penetration of
vagina and sexual intercourse cannot be ruled out . She gave her
opinion. The medical examination papers of the Victim are brought on
record. Her evidence further shows that, the blood samples were
collected. The report of Chemical Analyzer at Exhs. 55 to 57 were
confronted to her and she deposed that, on going through the CA
reports, she can say that sexual assault cannot be ruled out. Nothing has
come in the cross-examination to create any dent in the medical
evidence in respect of the victim, showing recent signs of forceful sexual
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intercourse. Even the Victim has deposed of her medical examination by
the Doctor. The medical evidence on record corroborate the testimony of
the Victim.
10. The evidence in the nature of CA reports shows that, the
blood group of the Victim and that of the Appellant was of group 'O'.
The medical papers at Exh. 63 shows that, the said document was
admitted by defence, which was in respect of the medical examination
of the Appellant which indicate that, there was nothing to suggest that
the Appellant was not capable of performing sexual intercourse. This
document proved that the Appellant was capable of performing sexual
intercourse.
11. On the basis of above discussed evidence, the testimony of
the Victim gets corroboration from the medical evidence. The history
given by the Victim at the time of her medical examination corroborates
her testimony. The evidence of Medical Officer supports the version of
Victim in respect of rape. From the School record, the Prosecution
established the date of birth of the Victim and from the evidence of the
Victim, it is clear that, at the time of incident the Victim was a child as
defined under Section 2(d) of the POCSO Act, which defines the Child
as the person below the age of 18 years. The above discussed evidence
available on record is trustworthy and nothing has come in the cross-
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examination so as to create any dent in the prosecution's evidence. The
evidence of Prosecution inspires confidence. The evidence on record
proved the Charge of rape, criminal intimidation, and sexual assault.
12. As regards the framing of additional Charge against the
Appellant for the offence punishable under Section 11 of the POCSO Act
is concerned, there is no dispute that the Charge for the graver offence
was framed at the initial stage before the evidence was led. The
additional Charge dated 18.12.2021 shows that it was framed in view of
order below Exh. 1, dated 18.12.2021. It is not shown by the Appellant
as to what prejudice had caused to him by framing the additional
Charge which was for the lesser offence. However, re-appreciation of the
evidence available on record do not show essential ingredients for the
offence punishable under Section 11 of the POCSO Act. Therefore,
framing of additional Charge was not warranted and, therefore, the
conviction and sentence under Section 11 of the POCSO is liable to be
interfered with.
13. The above discussion shows that, the prosecution has
proved the offence punishable under Sections 376(2)(f) and 506 of the
IPC and offence punishable under Sections 4 and 6 of the POCSO Act.
The commission of the proved offences, was admittedly prior to the
amendment of 2019, by which the minimum sentence for the offence
12 APEAL408.2023.odt
punishable under Section 4 and 6 of the POCSO Act was enhanced. In
the said judgment cited by the learned Advocate for the Appellant, the
aspect of sentence provided on the date of offence is considered. The
relevant paragraphs no. 9, 10, 11 and 12 are reproduced below.
"9. This Court, having found no merit in the challenge to conviction,
had confined its notice to the question of sentencing. However,
we find merit in the appellant's submission that since the offence
was committed on 20.05.2019, the amended provision of
Section 6 of the POCSO Act, which came into force on
16.008.219, could not have been applied to this case.
10. In this regard, Article 20(1) of the Constitution of India is
relevant and reads as under:
"20. Protection in resect of conviction for offences -
(1) No person shall be convicted of any offence except
for violation of a law in force at the time of the
commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might
have been inflicted under the law in force at the
time of the commission of the offence."
11. The Constitutional bar against retrospective imposition of
a harsher penalty under Article 2(1) is clear and absolute.
The Trial Court, in applying the enhanced sentence
introduced by the 2019 Amendment to Section 6 of the
POCSO Act, has effectively subjected the appellant to a
punishment greater than that which was permissible under
the law in force at the time of commission of the offence
which is clearly violative of the bar contained in Article
20(1) of the Constitution of India.
12. The sentence of "imprisonment for life, meaning
remainder of natural life," as er the amended provision,
did not exist in the statutory framework on 20.05.2019,
the date of the incident. Under the unamended Section 6,
the maximum punishment permissible was imprisonment
for life in its conventional sense and not imprisonment till
the remainder of natural life.
13. Accordingly, while we uphold the conviction of the
appellant under Section 6 of the POCSO Act, we modify
the sentence to that of rigorous imprisonment for life, as
understood under the unamended statute, and set aside
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the sentence of imprisonment for the remainder of the
natural life. The fine of Rs. 10,000/ is maintained."
14. The evidence on record has proved that, at the time of
incident the Victim was above the age of 17 years and below the age of
18 years. At the time of commission of offence, the minimum
punishment for the offence punishable under Sections 4 and 6 of the
POCSO Act was seven (7) years and ten (10) years respectively. In the
Charge and the Statement under Section 313 Cr.P.C. of the Appellant,
the occupation of the Appellant is shown as labourer. Considering these
aspects, in my view, the sentence awarded by the learned Trial Court
needs to be modified to bring it in consonance with the punishment
provided in the statute at the time of offence. With this discussion, I
proceed to pass the following order: -
ORDER
[i] The Appeal is partly allowed.
[ii] The conviction of the Appellant for the offence punishable
under Sections 376(2)(f), 506 of the IPC and under
Sections 4 and 6 of the POCSO Act, is maintained.
[iii] The sentence awarded by the learned Trial Court for the
offence punishable under Sections 376(2)(f) and 506 of the
IPC is maintained.
[iv] The sentence awarded by the learned Trial Court for the
offence punishable under Section 4 of the POCSO is
modified to seven (7) years instead of ten (10) years, and
for the offence punishable under Section 6 of the POCSO
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Act, it is modified to ten (10) years instead of twenty (20)
years.
[v] The conviction and sentence for the offence punishable
under Section 11 of the POCSO Act is quashed and set
aside, and the Appellant is acquitted of Section 11 of the
POCSO Act. The fine paid towards the same, if any, be
refunded to him.
[vi] The rest of the operative order of the impugned Judgment
and Order shall remain the same.
[vii] The R&P be sent back to the learned Trial Court.
[viii] Fees of learned Advocate, Mr. Ravindra B. Narvade Patil,
appointed to represent the Appellant, is quantified at
Rs. 12,000/- [Rupees Twelve Thousand], which shall be
paid by the High Court Legal Services Sub-Committee,
Aurangabad Bench.
[ix] Fees of learned Advocate, Mr. Mahendra G. Kochar,
appointed to represent Respondent No. 2, is quantified at
Rs. 12,000/- [Rupees Twelve Thousand], which shall be
paid by the High Court Legal Services Sub-Committee,
Aurangabad Bench.
[NEERAJ P. DHOTE]
JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 17/10/2025 12:51:21
