Bombay High Court
Vijay Marotro Gotmare vs The State Of Maharashtra The. P.S.O., ... on 29 September, 2025
2025:BHC-NAG:10023
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL No.503/2024
Vijay Marotrao Gotmare, : APPELLANT
Age 37 years, Occu. Labour,
At Present R/o Varha, Tq. Tiosa, Dist.
Amravati
Vs.
The State of Maharashtra, through Police : RESPONDENT
Station Officer of Police Station Kurha, Tq.
Tiosa & District Amravati
Ms. Sapana Jadhav, Advocate for the appellant.
Ms. Sonia Thakur, APP for the respondent.
CORAM: NIVEDITA P. MEHTA, J.
Date of reserving the judgment : 23.09.2025
Date of pronouncing the judgment : 29.09.2025
JUDGMENT :
The appellant/accused has preferred the present appeal
challenging the judgment and order dated 12 th August, 2024 (hereinafter
referred to as the "impugned judgment") passed by the learned Additional
Sessions Judge, Amravati, in Special Case No.10 of 2021. By the
impugned judgment, the learned Special Court convicted the appellant for
the offences punishable under Sections 354-A(1)(i), 451 and 354-D of
Indian Penal Code (hereinafter referred to as the "IPC"), as well as under
Section 7 read with Section 8 and Section 11 read with Section 12 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter
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referred to as the "POCSO Act"). In terms of Section 235(2) of the Code of
Criminal Procedure, the appellant has been sentenced as follows:
To undergo rigorous imprisonment for a period of five (5) years and
to pay a fine of Rs. 3,000/- for the offence punishable under Section 8 of
the POCSO Act; in default of payment of fine, to suffer simple
imprisonment for a period of three (3) months;
To undergo rigorous imprisonment for a period of three (3) years
and to pay a fine of Rs. 2,000/- for the offence punishable under Section
12 of the POCSO Act; in default of payment of fine, imprisonment for a
period of two (2) months.
It is further directed that both substantive sentences shall run
concurrently.
2. The case of the prosecution is that the complainant, mother of
the victim, lodged report with Kurha Police Station stating that she resides
with her husband, minor daughter (aged approximately 9 years), son and
mother-in-law. Both she and her husband are engaged in agricultural
work and routinely leave for the fields at around 6:00 a.m., returning by
approximately 3:00 p.m. During their absence, her mother-in-law, son,
and the minor daughter remain at home.
3. It is alleged that on Wednesday, the 21 st of October, 2020,
which was four days prior to the festival of Dussehra, while the
complainant and her husband were away working in the fields, an
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incident occurred at their residence. Upon their return, the complainant's
mother-in-law informed her that at about 11:00 a.m. to 12:00 noon, while
she was in the kitchen preparing food, she heard the victim shout.
Responding to the cries, she rushed towards the temple (Deoghar)
situated within the premises and found the door closed from inside. Upon
pushing the door open, she witnessed the appellant/accused holding the
victim, who was attempting to free herself from his grasp. On being
confronted by the mother-in-law, the accused fled from the spot, leaving
the victim behind. Despite witnessing such an incident, the complainant
did not immediately report the matter to the authorities, owing to
concerns regarding the social reputation of the family.
Subsequently, on 10th November, 2020, at approximately 3:00
p.m., while the complainant was engaged in cleaning the house, her
daughter approached her in a distressed and tearful condition. The victim
narrated that while she was playing outside the house near the cattle
shed, the appellant/accused came to the spot, caught hold of her, and that
she managed to escape from his clutches. It was at this point that the
complainant proceeded to lodge the report regarding the incidents, which
has been marked as Exhibit 8.
4. Pursuant to an oral report lodged by the complainant, an
offence came to be registered vide Crime No. 0173 of 2020 for the
offences punishable under Sections 354 and 354-D of the Indian Penal
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Code (IPC) and Sections 8 and 12 of the POCSO Act. The printed First
Information Report (FIR) is placed on record as Exhibit 9.
5. During the course of investigation, the accused was arrested
on 11th November, 2020. The Investigating Officer, accompanied by the
victim, visited the scene of the incident and prepared a spot panchanama
of the Deoghar (place of worship) and the cattle shed, in the presence of
two panch witnesses. Both the victim and the accused were referred for
medical examination. Statements of the victim, her mother, and her
grandmother were recorded under Section 164 of the Code of Criminal
Procedure, 1973. Upon completion of the investigation, a charge-sheet
was filed before the competent Court.
6. Thereafter, the learned Special Judge framed the charge
against the accused vide Exhibit 3, for the offences punishable under
Sections 354-A(1)(i) and 354-D of IPC and Section 7 punishable under
Section 8, as well as Section 11 punishable under Section 12 of the
POCSO Act. The accused pleaded not guilty and claimed to be tried.
7. During the trial, the prosecution examined eight witnesses,
Archana Gajanan Wankhade (P.W.1) Complainant at Exhibit 7;
Santoshsingh Pritamsingh Gil (P.W.2) - Panch witness - at Exhibit 12;
Babytai Manoharrao Wankhade (P.W.3) - Grandmother of the victim - at
Exhibit 17; Victim (P.W.4) - at Exhibit 22; Dr. Bhagwat Keshav Yeul (P.W.5)
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Medical Officer who examined the victim and accused at Exhibit 35;
Pratibha Krushnarao Atram (P.W.6) Sub-Registrar, Municipal Corporation,
Amravati at Exhibit 41; Anita Rambhor Nikhar (P.W.7) - Head Constable at
Exhibit 45: Sanjay Madhukarrao Wankhade (P.W.8) Investigating Officer -
at Exhibit 48.
In defence, the appellant/accused examined two witnesses,
namely: Tushar Babanrao Wadhonkar (D.W.1) - at Exhibit 54 and Ramdas
Sadashiv Neware (D.W.2) - at Exhibit 59.
8. Upon closure of the prosecution's evidence, the accused was
examined under Section 313 of the Code of Criminal Procedure, wherein
he denied all incriminating circumstances put to him and stated that he
has been falsely implicated in the present case.
9. The learned Special Judge, upon a comprehensive
appreciation of the evidence on record by judgment and order dated 12 th
August, 2024 convicted the appellant for the offences charged and
sentenced him accordingly, as mentioned above. The learned trial Court
observed that the prosecution had successfully established the
foundational facts of the case, including the time, place, and manner in
which the incident occurred. The testimonies of Archana Gajanan
Wankhade (P.W.1), the complainant, and Babytai Manoharrao Wankhade
(P.W.3), the grandmother of the victim, were found to be credible and
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consistent, and fully corroborated the victim's version on all material
aspects.
10. The Trial Court further held that, since the foundational facts
were duly established, the presumption under Section 29 of the POCSO
Act stood attracted. Although the defence examined two witnesses, it
failed to discharge the burden of rebutting the said statutory presumption.
The plea taken by the appellant/accused, that he was on duty at his
workplace at the relevant time, was not supported by any documentary
evidence and was thus disbelieved by the trial court.
11. The learned Special Judge also took note of the provision
under Section 42 of the POCSO Act, which mandates that where an act
constitutes an offence punishable under both the POCSO Act and the
Indian Penal Code, the offender shall be liable for punishment which is
greater in degree. Accordingly, the Court convicted and sentenced the
appellant/accused under Sections 8 and 12 of the POCSO Act and
refrained from imposing separate sentences for the offences under
Sections 354-A(1)(i), 354-D, and 451 of the Indian Penal Code.
Being aggrieved by the aforesaid judgment and order of
conviction and sentence, the appellant has preferred the present appeal.
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12. Heard Ms. Sapana Jadhav, learned counsel for the appellant,
and Ms. Sonia Thakur, learned Additional Public Prosecutor for the
respondent/State.
13. Learned counsel for the appellant submitted that the
prosecution's case is riddled with material inconsistencies and
contradictions, which goes to the root of the matter and render the
prosecution's version doubtful. It was contended that the first incident
allegedly took place on 21st October, 2020, as narrated by the
grandmother of the victim, wherein it is alleged that the appellant caught
hold of the victim from behind and used criminal force. However, despite
the seriousness of the allegation, no report was lodged with the police at
that time. The delay in lodging the report raises serious doubts about the
credibility of the prosecution's case.
14. It was further submitted that the second incident is alleged to
have occurred on 10th November, 2020, around 3:00 p.m., during the
Diwali festival. On this occasion also, it is alleged that the appellant
caught hold of the victim from behind, and that the victim somehow
managed to free herself. The learned counsel argued that there are several
glaring inconsistencies and contradictions between the depositions of
P.W.1 Archana Gajanan Wankhade (mother of the victim) and P.W.3
Babytai Manoharrao Wankhade (grandmother of the victim), which were
not properly appreciated by the learned Special Court.
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15. Attention was also drawn to the spot panchanama prepared
by the Investigating Officer, which indicates that the location where the
alleged incident took place is an open area accessible to the public.
Despite this, the prosecution failed to examine any independent witnesses
who may have seen or heard the incident, thereby weakening the
prosecution's version.
16. It was further contended that the testimony of the
grandmother (P.W.3) is highly doubtful, as her conduct does not align with
the natural course of human behavior. If she had indeed witnessed such
an act, it would be expected that she would raise an alarm and
immediately lodge a police complaint. However, even after informing the
victim's parents on the same day, no report was lodged, which further
casts a shadow of doubt on the veracity of the allegations.
17. Learned counsel also submitted that the second incident, as
narrated by the prosecution witnesses, does not, in any event, attract the
essential ingredients of the offence alleged, particularly in the absence of
any specific overt act demonstrating sexual intent on the part of the
appellant. It was argued that mere physical contact, without any
accompanying sexual intent, cannot attract the provisions under the
relevant sections. In support of her submissions, the learned counsel
placed reliance on the judgments as under :- Criminal Appeal No. 1098 of
2024 (Nirmal Premkumar and another Vs. State represented by Inspector
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of Police) and Criminal Appeal No. 67 of 2021 (Pravin Ruprao Harde Vs.
State of Maharashtra through Police Station Officer, Morshi Police Station,
Dist. Amravati).
18. Per contra, the learned Additional Public Prosecutor
supported the judgment and order passed by the learned Special Judge,
contending that the findings recorded by the trial Court are based on due
appreciation of the evidence on record and do not warrant interference.
19. It was submitted that there is no reason for the complainant,
who is the mother of the victim, or her grandmother, to falsely implicate
the appellant or to subject the minor child to unnecessary trauma and risk
her reputation and future. The relationship between the parties and the
age of the victim, which was 9 years, are not in dispute. The age of the
victim has been duly proved by the prosecution through the birth
certificate (Exhibit 43), which has been established on record through the
testimony of P.W.6 Pratibha Krushnarao Atram, a competent witness.
20. The learned Additional Public Prosecutor further submitted
that the defence examined two witnesses in an attempt to establish the
existence of enmity between the complainant's family and the appellant,
and also to claim that the appellant was on duty at the time of the
incident. However, these claims have not been sufficiently established to
discredit the consistent version of the prosecution witnesses.
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21. With regard to the inconsistencies pointed out by the learned
counsel for the appellant, it was argued by the learned public prosecutor
that the appellant has miserably failed to cross-examine the witnesses on
the point of the omission and contradiction. Nothing has been brought by
the appellant to disbelief the consistent version of the prosecution
witnesses with regard to the incident in question. Minor omissions and
contradictions are natural and expected in testimonies of witnesses,
especially in cases involving child victims, and do not necessarily discredit
the core of the prosecution's case. She further submitted that the absence
of physical injuries or medical evidence cannot be conclusive in
determining whether an offence under the POCSO Act has occurred,
particularly when the allegation pertains to the accused holding the victim
from behind. The sexual assault, in the present case, need not necessarily
result in visible injury for the offence to be established under the Act.
22. The learned Additional Public Prosecutor emphasized that the
act of the accused was witnessed by the grandmother of the victim during
the first incident on 21 st October, 2020, which lends credibility to the
subsequent incident as narrated by the victim herself. The presence of two
consistent narratives of similar conduct within a short span of time
strengthens the prosecution's case, particularly in light of the child's age
and vulnerability. It was also submitted that Section 29 of the POCSO Act,
provides for a presumption of guilt against the accused once the
foundational facts constituting the offence are established. Therefore,
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once the prosecution has discharged its initial burden by leading prima
facie evidence in support of the charges, the burden shifts upon the
accused to rebut the same.
23. I have considered the arguments canvassed by the respective
parties and also the testimonies of prosecution witnesses as well as
defence witnesses which is enumerated as under:
P.W.1, the mother of the victim, deposed that on 21.10.2020
she returned from her work at 03:00 pm, that time her mother-in-law told
her that while she was preparing food, she heard the victim shout. She
went towards the deoghar (place of worship) and opened the door and
saw that the accused had caught the victim's hand and the victim was
trying to escape. After seeing the grandmother, the accused ran away. Due
to fear in their minds about defamation of the victim no report was
lodged against the accused. On 10.11.2020, the accused again dared to
commit the same act with victim girl in the cattle-shed following which a
report was lodged against the accused.
24. The appellant, during the cross-examination of P.W.1 failed to
bring out anything to the contrary. Suggestions were put to the
prosecution witness but the same was denied by her. Nothing was brought
out which led to disbelief of P.W.1's version.
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25. P.W.3, the grandmother of the victim, deposed about the
incident which took place in the month of October, 2020 in her house.
The victim was present with her in the house and she was asked to lighten
the lamp in the deoghar (place of worship). She deposed that she heard
the shout of the victim and when she went near the worship place she saw
the accused using criminal force to the victim. She categorically deposed
that she saw the accused. When the victim's parents returned home, she
narrated the incident to them. She also deposed that they did not lodge
the report with the police. She further deposed that after 15 days when
the victim went to cattle-shed for throwing waste water she returned
home crying. Victim informed her that accused had used criminal force
upon her in cattle-shed. The grandmother then again narrated the said
incident to the victim's parents. Thereafter the mother of the victim
lodged a report in police station against the accused. She stated that the
police recorded her statement and thereafter the learned trial Court
recorded her statement.
During cross-examination, the counsel for the accused failed
to bring out any omission or contradiction with the testimony of P.W.3.
Except suggestions that there was quarrel between her son, Gajanan and
the accused, nothing more was brought on record. The entire evidence of
P.W.3 remained unshaken so far as the incident in question is concerned.
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26. The statement of P.W.3, as recorded by the police and her
statement under section 164 of CrPC recorded by the learned trial court
fully corroborates with the version of the victim and her mother.
27. P.W.4, the victim, deposed that on the date of the incident she
was at home with her grandmother. Her parents had left for their work.
Her grandmother asked her to lighten the lamp in the deoghar (place of
worship). After that she closed the door. Accused came in her house,
lifted her near the ghodasi, where the beds are kept. He kissed her and
asked her to remove her pants. The victim shouted, and upon hearing the
same, victim's grandmother came in and shouted on the accused. The
victim stated that when her mother returned home, her grandmother
narrated the incident to her.
On 10.11.2020, when the victim had gone to the cattle-shed,
the accused again caught hold of her. The victim rescued herself and
returned home where she narrated the incident to her mother.
28. During her cross-examination, she denied the suggestions put
forth by the counsel for the accused. Nothing could be brought on record
by the appellant to disbelief the testimony of the victim. She consistently
stuck to her version that the accused had committed the offence.
29. P.W.2, the panch witness, supported the prosecution by
proving the spot panchanama (Exh.13), which was conducted in the
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presence of the victim and her parents. He stood firm in cross-
examination and denied any fabrication. P.W.5, the Medical Officer, stated
that upon examination of the victim on 11.11.2022, no external injuries
were found. P.W.6. the Birth Registrar produced the extract of the birth
register and birth certificate (Exhs. 42 & 43) confirming that the date of
birth of the victim is 15.12.2011. The authenticity of this record was not
seriously challenged by the defence, and it stands proved that the victim
was a minor aged approximately 8 years and 10 months at the time of the
incidents. P.W.7, the lady constable, confirmed that the victim's statement
was recorded in her presence without pressure or coercion, and P.W.8, the
Investigating Officer, described the sequence of the investigation,
including recording of statements, preparation of panchanama, and filing
of the charge-sheet. No procedural lapses were brought on record by the
defence.
30. Upon comprehensive evaluation of the oral and documentary
evidence brought on record by the prosecution as well as the defence, this
Court finds that the learned trial court has recorded a cogent and
justifiable finding and rightly convicted the appellant for the offences for
which he was charged.
31. I have considered the entire material which was placed on
record including the record and proceedings. The evidence of P.W.1 and
P.W.3 fully corroborates with the version of the victim, (P.W.4). The
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counsel for the accused has failed to point out any contra material from
the version of the prosecution's witnesses. All the suggestions put forth by
the counsel for the accused were specifically denied by the prosecution
witnesses. It is a settled position of law that in the case of the evidence of
a victim of sexual assault corroboration is not necessary. The Hon'ble
Apex Court in State of Punjab v. Gurmit Singh & Ors. reported in 2014
SCC Online SC 529 has held that in the case of the evidence of a victim of
sexual assault corroboration is not necessary. The victim's evidence is
more reliable than of an injured witness as she is not an accomplice. The
court further held in the same judgment as under :
"In cases involving sexual molestation, supposed considerations
which have no material effect on the veracity of the prosecution
case or even discrepancies in the statement of the prosecutrix
should not, unless the discrepancies are such which are of fatal
nature, be allowed to throw out an otherwise reliable
prosecution case.
........
The testimony of the victim in such cases is vital and unless
there are compelling reasons which necessitate looking for
corroboration of her statement, the courts should find no
difficulty to act on the testimony of a victim of sexual assault
alone to convict an accused where her testimony inspires
confidence and is found to be reliable. Seeking corroboration of
her statement before relying upon the same, as a rule, in such
cases amounts to adding insult to injury."
32. I have also considered the judgments relied upon by the
learned Counsel for the appellant in support of the case. The judgments
relied upon by the learned Counsel for the appellant does not support the
case of the appellant. The facts involved in the present case do not
squarely apply to the decisions relied upon by the appellant.
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33. Section 386 of the Cr.P.C. contemplates powers of the
appellate Court. Section 386 (b)(iii) of the Cr.P.C. empowers the appellate
Court to alter the nature and extent of the sentence, but not so as to
enhance the same. In exercise of the power as conferred above under the
relevant provision of Cr.P.C., I maintain the judgment passed by the
learned trial Court. Looking to the mitigating circumstances that the
accused is a labourer and has undergone incarceration for more than one
(1) year, I proceed to alter the sentence accordingly awarded by the
learned trial Court. The sentence imposed by the learned trial Court under
Section 7 r/w Section 8 i.e., to undergo rigorous imprisonment for a
period of five (5) years and to pay a fine of Rs. 3,000/- for the offence
punishable under Section 8 of the POCSO Act; in default of payment of
fine, to suffer simple imprisonment for a period of three (3) months; is
hereby modified. The appellant is sentenced to suffer rigorous
imprisonment for a period of 3 years. Rest of the conditions, i.e. fine of
Rs. 3,000/- and in default of payment of fine, to suffer simple
imprisonment for a period of three (3) months, is maintained. The
punishment imposed by the learned trial court under Section 12 of the
POCSO Act is maintained. Both the sentences shall run concurrently.
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The period already undergone by the accused during
investigation, trial, or appeal period, if any, shall be set off in terms of
Section 428 of the Code of Criminal Procedure.
The appeal is partly allowed in terms of the above.
(NIVEDITA P. MEHTA, J.)
Later on :
At this stage, the learned Counsel for the appellant prays for stay to
the effect and operation of the judgment and order pronounced today as
to enable her to challenge the same before the Hon'ble Apex Court. The
said request is strongly opposed by the learned Additional Public
Prosecutor, however, to enable the appellant to approach the Hon'ble
Apex Court against the judgment and order pronounced today in the
present appeal by this Court, the effect and operation of the said
judgment and order is stayed for one month.
(NIVEDITA P. MEHTA, J.)
SK Nair / MP Deshpande
Signed by: Mr. S.K. NAIR
Designation: PS To Honourable Judge
Date: 01/10/2025 12:47:45
