Bombay High Court
Balaji S/O. Malhari Devkate vs The State Of Maharashtra on 16 October, 2025
2025:BHC-AUG:29503-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 168 OF 2020
Balaji S/o. Malhari Devkate
Age 43 years, Occ. Nil,
R/o. Phulenagar, Himayatnagar,
Tq. Himayatnagar, Dist. Nanded.
.. APPELLANT
VERSUS
The State of Maharashtra .. RESPONDENT
...
Mr. Santosh C. Bhosale, Advocate for appellant,
Mr. N.S. Takale, APP for respondent.
CORAM : SANDIPKUMAR C. MORE AND
MEHROZ K. PATHAN, JJ.
RESERVED ON: 9 SEPTEMBER, 2025.
PRONOUNCED ON : 16 OCTOBER, 2025.
JUDGMENT [ PER MEHROZ K. PATHAN, J]
1. The appellant has filed the present appeal, thereby praying
for quashing and setting aside the judgment and order passed by the
Additional Sessions Judge, dated 14.1.2020 passed by the Additional
Sessions Judge, Bhokar in Special Case (POCSO) No. 10 of 2019 thereby
convicting the appellant for the offence punishable under Section 376(2)
(i) of IPC and Section 6 of the Protection of Children from Sexual
Offences Act, 2012 ( hereinafter referred to as "POCSO" Act for the sake
of brevity)
2. The case of the prosecution is that, complainant (mother of
the victim) has lodged a report stating that on 16.3.2019 at about 5.45
p.m. her daughter victim "Y" and two other friends had gone for playing
out of the house. After some time, she came to know that accused, who
is the neighbouring resident, namely, Balaji Deokate, had committed rape
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on victim "X" in the ditch situated near the village. The police had also
registered complaint for committing rape on victim girl "X". They called
the complainant to record the statement of her daughter i.e. present
victim "Y" and accordingly, she was brought in the police station for
recording her statement. The victim "Y" narrated in her statement that
the accused, who is referred to as "Balumama" had asked the victim "Y"
to bring victim "X" to him in the ditch and if she failed to do so, he will
kill her. The victim "Y" then took another victim "X" to the
appellant/accused. The appellant accused removed the clothes of the
victim "X" and thereafter committed rape on her. The appellant accused
had thereafter committed rape on the present victim "Y".
3. The present victim "Y" was thereafter taken to the Judicial
Magistrate Hadgaon for recording her statement under Section 164 of
Cr.P.C. wherein, she narrated the same story about the appellant having
committed rape on victim "X" and present victim "Y". She further
narrated in her statement under Section 164 that the accused/appellant
gave a currency note of Rs. 10/-, saying that victim "X" and victim "Y"
shall distribute Rs. 5/- each. The present victim "Y" then had shown the
well and ditch which is situated in the field of one Shaikh Mukhid,
where, accused Balumama had committed rape. She further stated that
though the said Balumama had committed rape on victim "X" and her.
She did not report the incident having fear about getting defamed and
thus, there was delay of 3 months in lodging the report. The Police
Station Officer, Himayat Nagar registered crime No. 26 of 2019 for the
offence punishable under Sections 376(2)(i) and Sections 4 and 6 of the
POCSO Act. The investigating Officer, SDOP, Bhokar, directed the Police
Sub Inspector Poonam Suryawanshi to record the statement of victim "Y".
The present Crime bearing No. 97 of 2019 was registered against the
accused for committing rape on present victim "Y" after 3 months of the
date of incident on the report filed by mother of victim. The Investigating
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Officer had collected the Birth Certificate of the victim from the
Municipal Council, Himayat Nagar and also sent the victim "Y" for
medical examination at the Civil Hospital, Nanded and collected the
medical papers of the victim from Govt. Hospital, Nanded. The
Investigating Officer obtained the school birth extract of the victim from
Head Master of the Zilla Parishad Primary School, Phule Nagar, Himayat
Nagar and after drawing the sketch map of the spot of incident, has
prepared the spot panchanama. The accused was arrested and his
medical report was also obtained. After completing investigation, charge
sheet was filed as sufficient evidence was collected to bring home the
guilt of the accused.
4. The prosecution has examined in all 8 witnesses in support
of their case and has relied upon the various documents, in support of
their case. The learned trial court, after going through the entire
evidence led by the prosecution and the documents relied upon, was
pleased to convict the appellant/accused for the offence punishable
under Section 376(2)(i) of IPC thereby directed the appellant to undergo
life imprisonment, which shall mean the remainder of persons natural
life. The appellant was also convicted for the offence punishable under
Section 6 of the POCSO Act for aggravated sexual assault and was
directed to undergo life imprisonment and both the substantive
sentences were directed to run concurrently.
5. We have considered the submissions advanced by Mr.
Bhosale, learned advocate for the appellant; Mr. N.S. Tekale APP for
State.
6. Perusal of the testimony of PW-4 (mother of victim) would
show that she had lodged report on 23.6.2019 for the incident which had
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taken place on 16.3.2019. It is pertinent to point out that on 16.3.2019,
there was already one offence registered vide Crime No. 26 of 2019 for
the offence of rape against the victim girl "X". The victim of the present
case minor girl "Y" recorded her statement under Section 164 of Cr.P.C. in
POCSO Special Case No. 8 of 2019, thereby also stating about rape
committed on her. It is further stated in her statement that she wanted
to lodge report against accused, however, was disturbed as the matter
was related to the character of daughter. She further stated that, by
making consultation with the relatives/informant had lodged the report
on 23.6.2019 i.e. after 3 months of the incident.
7. Thus, it could be seen that though there is a considerable
delay in lodging the report against the applicant/accused by the mother
of the victim girl "Y", the said delay has been overlooked by the Court on
the ground that that the Investigating Officer ought to have himself
registered the FIR in stead of complainant, as the Police had every right
to register the second crime, as soon as the statement was given by the
victim in Crime No. 26 of 2019. The delay in lodging report is, therefore,
ignored by the Court on the ground that defect in the investigation
cannot go to the benefit of the accused.
8. This observation, in our view is erroneous inasmuch as, the
stringent law of POCSO warrants stringent scrutiny of evidence which
has to be cogent enough to inspire confidence from the testimony of the
victim and the conduct of the complainant to rest upon a conviction as
the punishment under the POCSO Act is severe. The delay in lodging the
FIR is therefore fatal to the prosecution.
9. Another witness relied upon by the prosecution was PW-5
Bashir Khan, who has simply deposed that on 16.3.2019, when he was
returning back, he saw the appellant/accused together with other girls
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and asked the little girls to go to their houses as it was evening time.
Accused Balaji informed him that he was going to answer nature's call,
however, the girls are following him. Apart from above fact, there is
nothing referred in the testimony of PW-5 Bashirkhan, which would
corroborate the allegations of rape as made by the complainant and
victim minor girl "Y". Thus, the testimony of PW-5 may not be helpful to
the prosecution case.
10. Another important witness examined by the prosecution is
PW-3 Sheela Gangadhar Komwad, who happens to be the Head Mistress
of the school who had produced the Admission Register of the minor
victim girl "Y" to prove her date of birth. It is pertinent to point out here
that the testimony of PW-3 would show that she had brought the extract
of School Admission Register (Exh.15) of the victim which shows her
date of birth to be 1.9.2011. The minor victim girl in her testimony did
not state about her date of birth, nor has the PW-4 complainant ( mother
of victim) stated in her deposition about the date of birth of the victim. It
is pertinent to note that the prosecution has relied upon the document
Exh.38, which is the Birth Certificate issued by the Gram Panchayat,
which shows the date of birth, which is in variance with the date of birth
shown in the Admission Register. The date of birth as reflected in Birth
Certificate (Exh.38) is 2.9.2011, whereas, the date of birth in the
Admission Register (Exh.15) is 1.9.2011.
11. The Division Bench of the Bombay High Court in the case of
Ravi Anandrao Gurpude vs. State of Maharashtra 2017 All MR (Cri.)
1509, was pleased to hold that Section 6 of the POCSO Act, provides for
punishment for aggravated penetrative sexual assault as enumerated in
Section 5 of the Act. From the aforesaid provisions, it is crystal clear that
the prosecution is under bounden duty to prove that the victim is a child.
Unless the prosecution successfully establishes that the victim is a child
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within the meaning of clause (d) of Section 2 of the Act, a person cannot
be convicted for the offence punishable under Section 6 of the Act. The
Division Bench in the aforesaid case, was pleased to observe in para. 8 as
under :-
"The provisions of the Act are stringent in nature. Even
there is a statutory presumption under Section 29 of the Act.
Since the enactment is stringent in nature, the degree of
proof is more strict. The prosecution is under bounden duty
to prove the age of the prosecutrix to show that at the time
of the incident, the prosecutrix was "Child" within the
meaning of the provisions of the Act. The burden is on the
prosecution to prove that the age of prosecutrix on the date
of occurrence, was less than 18 years."
12. Thus, after considering Exhibit 38 and Exhibit 15, we find
that there is a material discrepancy in the date of birth of the child and
which the Trial Court has failed to consider. In view of the judgment
cited above, the strict proof is required to rest upon the conviction under
the POCSO Act and as such, the age of the child cannot be said to have
been established in view of the discrepancy in the date of birth. The
depositions of PW-1 victim as well as deposition of PW-4 her mother, do
not reflect the exact date of birth being mentioned by them in their
testimony. It would therefore be unsafe to rest conviction on such shaky
piece of evidence pertaining to the very important aspect i.e. date of birth
of the child.
13. Another important witness relied upon by the prosecution is
PW-6 Dr. Sunil Madhewad, who had examined the victim girl "Y" on
24.3.2019 between 11.45 a.m. and 12.45 p.m., as there was already one
crime registered as regards sexual assault against victim girl "X" being
Crime No., 26 of 2019, wherein, she is also alleged to have been raped by
the present appellant/accused. The Medical Examination Report Exh.27
prepared by PW-6 shows that there was no evidence of any surface injury.
The hymen was intact. No evidence of any tear or any perennial tear was
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noticed. It is further observed in one of the columns by the said witness
that there were no injuries suggestive of application of force/restraint.
These relevant entries in Exh.27 coupled with the testimony of witness
herself, who has admitted about such entries being taken by him, would
suggest that the medical evidence also do not corroborate the allegations
of rape made against the present appellant by the victim girl or the
complainant (mother of victim).
14. Thus, looking it from any angle, we are of the considered
opinion that the evidence led by the prosecution in the present case does
not inspire confidence so as to prove the case of aggravated sexual
assault against the present appellant. The prosecution evidence falls
short of the evidence necessary to bring home the guilt of the present
appellant in present crime. In our view, therefore, the conviction of the
appellant for the offence punishable under section 376(2)(i) and Section
6 of the POCSO Act, cannot be sustained. Hence, we pass the following
order :-
ORDER
[I] The appeal stands allowed;
[ii] The impugned judgment and order of conviction of
the appellant dated 14.1.2020 passed by the Additional Sessions Judge,
Bhokar, for the offence under Section 376(2)(i) of IPC and under
Sections 4 and 6 of the POCSO Act, in Special case (POCSO) No. 10 of
2019, is hereby quashed and set aside;
[iii] The appellant is acquitted of the offence punishable
under Section 376(2)(i) of IPC and Sections 4 and 6 of the POCSO Act.
[iv] The appeal is allowed in above terms and same is
disposed of.
[MEHROZ K. PATHAN] [SANDIPKUMAR C. MORE]
JUDGE JUDGE.
grt/-
