Naresh S/O. Devrao Ganvir vs The State Of Maha. Thr. Pso Sakkardhara ...
2026 Latest Caselaw 3412 Bom

Bombay High Court

Naresh S/O. Devrao Ganvir vs The State Of Maha. Thr. Pso Sakkardhara ... on 6 April, 2026

2026:BHC-NAG:5310




                                                     1                   1- apeal 87-24.odt

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH : NAGPUR
                              CRIMINAL APPEAL NO.87/2024
              Naresh Devrao Ganvir,
              aged about 45 Years, Occup.Driver
              R/o Plot No.137, Near Ramabai
              Garden Chandan Nagar, Nagpur                      Appellant
                     - Versus -
              1.    State of Maharashtra,
                    through P.S.O.Sakkardhara, Nagpur.

              2.    X.Y.Z. Victim in Crime No.151 of 2022
                    through, PSO, Sakkardhara,Nagpur.           Respondents

                                       -----------------
              Mr.O.K.Masurke, Advocate for the Appellant.
              Mr.U.R.Phasate, A.P.P. for Respondent No.1/State.
              Mrs.Sonali Saware-Gadhawe, Advocate (appointed) for Respondent
              No.2/Victim.
                                      ----------------

              CORAM: NEERAJ P. DHOTE, J.
              DATE OF RESERVING THE JUDGMENT:   24.02.2026.
              DATE OF PRONOUNCING THE JUDGMENT: 06.04.2026.

               JUDGMENT:

-

1) This is an Appeal under Section 374(2) of the Code of

Criminal Procedure (henceforth referred to as "Cr.P.C." for short)

against the Judgment and Order dated 30/10/2023, passed by the

learned Additional Sessions Judge-11, Nagpur, in Special Case

No.238/2022 convicting and sentencing the Appellant as follows:-

2 1- apeal 87-24.odt

1) Accused Naresh S/o Devrao Ganvir is acquitted of the offence punishable under Section 6 of The Protection of Children From Sexual Offences Act, 2012 vide Sec.235(1) of the Code of Criminal Procedure.

2) Accused Naresh S/o Devrao Ganvir is convicted for the offence punishable under Section 452 of the Indian Penal Code, vide Sec.235(2) of the Code of Criminal Procedure. He is sentenced to suffer imprisonment for 7 years and to pay fine of Rs.5,000/- (Rupees Five Thousand only). In default of payment of fine, he shall suffer rigorous imprisonment for six months.

3) Accused Naresh S/o Devrao Ganvir is convicted for the offence punishable under Section 506 of the Indian Penal Code vide Sec.235(2) of the Code of Criminal Procedure.

He is sentenced to suffer imprisonment for 2 years.

4) Accused Naresh S/o Devrao Ganvir is convicted for the offence punishable under Section 376(3) of the Indian Penal Code and U/sec. 4 The Protection of Children From Sexual Offences Act, 2012, vide Sec.235(2) of the Code of Criminal Procedure.

He is sentenced as per provision U/sec. 4 of Protection of Children from Sexual Offences Act, 2012, to suffer imprisonment for 20 years and to pay fine of Rs.15,000/- (Rupees Fifteen Thousand only). In default of payment of fine, he shall suffer rigorous imprisonment for one year.

5) Set off be given to the accused for the period for which he has already undergone in custody in this matter as per provision under Section 428 of Cr.P.C.

6) All the sentences shall run concurrently.

7) ..........

8)...........

9) ..........

10) ..........

11) ..........

3 1- apeal 87-24.odt

2) The prosecution's case, as revealed from the police report, is

as under:-

a] The informant was residing on the given address with her

family comprising husband and the Victim aged 15 years. The

informant and her husband were working couple. On 19.03.2022,

the informant, her husband and the Victim went to attend the

function at the house of her sister-in-law. All the relatives gathered

for the said function. As it was noticed that, the Victim was

withdrawn (not talking to anybody), the informant's sister-in-law

inquired with the Victim the reason for her silence. The Victim

informed the informant's sister-in-law that, when she along with her

parents were residing in the tenanted premises of Chaaya Nanwate,

on 14.02.2022 in the evening between 5.00 p.m. to 6.00 p.m., the

Appellant who was acquainted with her father came to her house

and raped her. The Victim narrated the incident to the informant.

The informant and her husband went to the house of the Appellant

to question him about the incident. The Appellant denied happening

of such incident and left. On 19.03.2022, again the informant

inquired with the Victim. The Victim informed her that, due to fear

she was silent. The informant approached the police and lodged the

4 1- apeal 87-24.odt

report. The Crime bearing No.151 of 2022 came to be registered

against the Appellant for the offence punishable under Sections

376(1), 376(3), 452, 506(2) of the Indian Penal Code, 1860 (for

short IPC), and for the offence punishable under Sections 4 and 6 of

the Protection of Children From Sexual Offences Act,2012 (for short

POCSO).

b) The Victim was referred for medical examination. The

Victim's statement came to be recorded. The Appellant came to be

arrested. The Appellant came to be medically examined. The

statement of the witnesses were recorded. The clothes of the Victim

and that of the Appellant came to be seized. The spot panchnama

was drawn. The seized articles were referred to the chemical

laboratory. On completion of the investigation, the Appellant came

to be charge sheeted.

3) The learned Trial Court framed the Charge against the

Appellant for the offence punishable under Sections 452, 506,

376(3) of the IPC and for the offence punishable under Sections 4

ans 6 of the POCSO Act below Exh.6. The Appellant pleaded not

guilty and claimed to be tried. To prove the Charge, the prosecution

examined in all Nine (9) witnesses. The informant-mother of the

Victim is examined as PW-1, the Victim is examined as PW-2, the 5 1- apeal 87-24.odt

Medical Officer who examined the Victim is examined as PW-3, the

Medical Officer who examined the Appellant is examined as PW-4,

the employer of the Appellant is examined as PW-5, the Landlady,

where the Victim and her family were residing is examined as PW-6,

the spot panch is examined as PW-7, the aunt of the Victim is

examined as PW-8 and the investigating officer is examined as PW-9.

The relevant documents are brought on record in the evidence of the

witnesses.

4) After the prosecution filed the evidence closure pursis, the

statement of the Appellant came to be recorded under Section

313(1)(b) of the Cr.P.C. The Appellant stated that, he was falsely

implicated on account of financial dispute with his employer.

Appreciating the evidence on record, and after hearing both the

sides the learned trial Court passed the impugned judgment and

order.

5) Heard the learned Advocate for the Appellant, the learned

APP and the learned Advocate appearing for the Respondent No.2-

Victim. Scrutinised the evidence on record.

a] It is submitted by the learned Advocate for the Appellant

that, the birth certificate was issued after the FIR is lodged. No

witness was examined to prove the birth certificate. The prosecution 6 1- apeal 87-24.odt

failed to prove that, the Victim was the child at the relevant time.

The Victim disclosed the incident to her mother after 35 days. The

spot of the incident was the residential area and so the neighbourers

could have easily heard the cry, if such incident had taken place.

The police did not record the statement of PW-6, who is the aunt of

the Victim. There can be many reasons for hymenal torn. When the

Victim was working with her mother at the shop, her presence at the

house was doubtful. Considering the overall evidence on record, the

prosecution failed to prove the Charge. The Appeal be allowed.

b] It is submitted by the learned APP that, the Victim deposed

of the incident. After disclosure of the crime, immediately, the FIR

was lodged and therefore, there was no delay in lodging the report.

The delay will not be fatal for the prosecution in view of the settled

legal position. The Victim's silence is not fatal. The cross

examination could not shake the testimony of the Victim. By

examining the Medical Officer, the injury on the Victim is proved.

Due to the delay in examining the witnesses, the injuries were not

fresh. The Victim's mother deposed of the Victim's age. The birth

certificate of the Victim was brought on record. The aunt of the

Victim to whom there was first disclosure of the incident was

examined and her evidence corroborate the Victim's evidence.

7 1- apeal 87-24.odt

Defence of false implication due to financial dispute with the

employer was improbable. The Appeal be dismissed. In support of

his submissions he relied on the decision in the case of State of

Rajasthan -Versus- Chatra (2025) 8 SCC 613.

c] It is submitted by the learned Advocate for the Victim that,

she adopts the submissions made by the learned APP. The history

given to the medical officer, corroborates the testimony of the

Victim. The presence of the Appellant in the house of the Victim was

established. The defence was not probable. In support of her

submissions, she cited the decision in the cases of Dildar Singh

Versus State of Punjab (2006) 10 SCC 531 and Deepak Versus State

of Haryana (2015) 4 SCC 762.

6) To prove that, the Victim was the child, as defined under

Section 2(d) of the POCSO Act, the prosecution relied on the birth

certificate of the Victim brought on record at Exhibit-17, in the

evidence of the mother of the Victim, who is examined as PW No.1.

Her evidence shows that, the original birth certificate from the

Registrar (Birth and Death), Nagpur was shown to her and she

deposed that, it was the birth certificate of the Victim, showing the

date of birth as 25/11/2007. She deposed that, the Victim's birth

was registered on 25/02/2008 and the said Exhibit-17 contains their 8 1- apeal 87-24.odt

names as the parents. In her evidence, she deposed that, the date of

birth of the Victim was 25/11/2007. The suggestion that, the birth

certificate at Exhibit-17 was false is denied by her. She is the

biological mother of the Victim. The evidence of PW-9, the

Investigating Officer shows that, during the investigation she wrote

the letter dated 24/03/2022 below Exhibit-54 to the Commissioner

of Municipal Corporation, Nagpur for providing the birth certificate

of the Victim. Thereafter, on 11/05/2022 she sent the reminder

below Exhibit-59 to the said authority for providing the birth

certificate of the Victim and accordingly, Exhibit-17 birth certificate

of the Victim was received. The said evidence remained

unchallenged. Undisputedly, the crime is registered on 20/3/2022.

With the said credible evidence on record, the prosecution has

established that, the Victim was the child at time of incident.

7) The prosecution's case mainly rests on the testimony of the

Victim, who is examined as PW No.2. Her evidence shows that, she

was residing with her parents. Her father was the painter and her

mother was working in the shop. Her parents used to go for work in

the morning and used to come back in the evening between 08 p.m.

and 08:30 p.m. At the time of incident they were residing in the

house of Nanwate (PW-6) on rent, which was situated in Somwari 9 1- apeal 87-24.odt

Quarter area. PW-6 Chhaya Nanwate examined by the prosecution

deposed that, the Victim and her family were her tenant. The

evidence of Victim shows that, her father was knowing the

Appellant, as he was working as the driver with Mr. Gaurav (PW-5).

The evidence of Victim shows that, on 14/02/2022 around 4:00

p.m, when she was present at home, her father came with the

Appellant. She provided water to them. Thereafter, they left. She

was alone in the house. The door was not locked. The Appellant

entered in her house around 5:00 p.m. The Appellant gagged her

mouth and threatened to kill. The Appellant removed his clothes and

her clothes and raped her. Thereafter the Appellant left. Out of fear

she did not disclose the incident to anyone at her home. On 19 th

March, when she had gone to the house of her aunt (PW-8), she

disclosed the incident to her aunt and thereafter to her mother. The

report was lodged with the concerned police station. She was

referred for medical examination. Her samples were taken. Her

statement was recorded before the Magistrate. The Appellant was

identified by her before the Court.

8) The submission of the learned Advocate for the Appellant

as to how the Victim was present at her house, when she was

working with her mother at the shop has no merit because the cross-

10 1- apeal 87-24.odt

examination of the Victim shows that, she started working in the

shop, where her mother was working since last two(2) to three(3)

years. The incident was of February-2022 and the Victim was

examined in May-2023 and two (2) to three (3) years back means

certainly after the incident. Not disclosing the incident immediately

by the Victim to anyone cannot be said to be unnatural, as her

evidence shows that, due to fear, she kept mum.

9) The evidence of PW-8, who is the aunt of the Victim, shows

that, she was also the resident of the same city, i.e. Nagpur and on

19th March, 2022, she invited her brother, i.e. the father of the

Victim, along with his family for meals and accordingly, the Victim

and her parents visited her house for meals. The evidence of aunt

shows that, she noticed that, the Victim was seen withdrawn, which

was unusual and so she asked the reasons. The Victim started crying

and disclosed the incident which took place with her on

14/02/2022. The aunt informed the parents of the Victim. Non-

recording of the statement of the aunt will not be sufficient to

discard her testimony, as nothing has come in the cross-examination

so as to create any doubt about her testimony. Even the Victim

deposed of visiting the house of PW-8 on 19 th March-2022 with her

parents. Even the evidence of PW-1 Victim's mother shows that, on 11 1- apeal 87-24.odt

19th March-2022, she visited the house of her sister-in-law (PW-8)

for meals. The mother's evidence also shows that, the Victim

appeared withdrawn and not talking with anybody and when the

Victim was asked about her silence, she started crying and informed

PW-8 about the incident. Nothing has came in the cross-examination

of the Victim and the said witnesses i.e. PW-1 and PW-8 to create any

doubt in respect of their said evidence.

10) The delay in not informing the incident to her family

members is explained by the Victim. It was due to fear. Her evidence

shows that, she was threatened by the Appellant. That is natural for

the girl of her age, who was subjected to sexual assault. The

Appellant was known to her father and had visited her house and

there is no doubt about identity of the Appellant. The evidence of

the Victim and PW-6 Chhaya Nanwate shows that, the tenanted

premises, where the Victim was residing with her parents was on the

first floor. It has come in the evidence of Victim's mother (PW-1) and

the evidence of the Victim that, the rented premises in which they

were residing was Ground+1 floor. It has come in the cross-

examination of PW-1 that, the staircase was from outside starting

from the entrance of the house, where the landlady was residing.

With this topography of the house, where the incident took place, 12 1- apeal 87-24.odt

the admission by the Victim in the cross-examination that, the

Nanwate family (landlord) usually watch the person coming inside

the house will not be fatal.

11) The evidence of PW-5 Gaurav Banait, with whom, the

Appellant was employed shows that, he was residing next to the

house, where the Victim was residing in the house of PW-6. His

evidence shows that, on 14.02.2022 i.e. the date of the incident, the

Appellant had come to him in the drunken stage. In the evening, he

saw the Appellant with the father of the Victim near his house. This

evidence on record confirms the presence of the Appellant near the

place of the incident and supports the Victim's evidence that, the

Appellant had came to the house with her father before the incident.

12) The testimony of the Victim inspires confidence. Her

testimony remained unshaken in the cross-examination. Though it

has come in the cross-examination of the Victim that, the house of

PW-6 Chhaya Nanwate, where she was residing, was in the

residential area surrounded by many houses it becomes immaterial

as the evidence of Victim and PW-6 Chhaya Nanwate shows that, the

tenanted premises, where the Victim was residing with her parents

was on the first floor. The evidence of PW-6 Chhaya Nanwate shows 13 1- apeal 87-24.odt

that, after the incident the informant and the family left the said

tenanted premises.

13) There is medical evidence on record in the form of

evidence of PW-3 Dr. Shreya, who was the Medical Officer in the

Government Medical College, Nagpur. She examined the Victim on

20/03/2022. The history was that, of penovaginal sexual intercourse

on 14/02/2022 between 5:00 p.m. and 6:00 p.m. at the Victim's

rented house. This history corroborates the testimony of the Victim.

The evidence of this Medical Officer shows that, on examination of

the Victim she found, injuries on the hymen, edges were irregular,

ragged, no bleeding or edema, position of tears 3, 6, 10 O'clock in

position. She opined that, sexual intercourse or assault cannot be

ruled out. The medical examination papers of the Victim are brought

on record in her evidence at Exhibits- 24 and 25. It has come in the

cross-examination that, no bleeding, no edema means the injuries on

the private part on the hymen of the Victim were not fresh injuries.

This cross-examination further fortifies the Victim's testimony of

sexual assault for the reason that, the incident of rape took place on

14/02/2022 and the medical examination of the Victim was on

20/03/2022, which was after a period of 35 days. It has come in the

cross-examination of the Medical Officer that, tear on the hymen 14 1- apeal 87-24.odt

may cause with some other reason and sexual assault can be one of

the reasons. Though further it has come that, because of cycling or

gymnastics the tear may occur, there is nothing to create any dent in

the medical evidence.

14) The evidence of PW-4 Dr.Swapnil Shirsat who was the

Medical Officer in the Government Hospital College, Nagpur shows

that, the Appellant was brought to him for medical examination. On

the medical examination he found nothing to suggest that, the

Appellant was not capable of performing sexual intercourse. This

evidence shows that, the Appellant was potent. The evidence of this

witness is supported by the medical papers at Exh.28. The evidence

of PW-7 Kishor Shingne shows that, on 20.03.2022, he was called by

the Shakkardara Police for the spot panchnama and the spot was one

room at the first floor of the house. The spot panchnama is brought

on record below Exh.35. The evidence of the Investigating Officer

shows the investigation done by him.

15) In State of Rajasthan Vs. Chatra(supra) cited by the

learned APP it is observed that "Doubts would be called reasonable

if they are free from a zest for abstract speculation. Law cannot

afford any favorite other than the truth. To constitute reasonable

doubt, it must be free from an over emotional response. Doubts must 15 1- apeal 87-24.odt

be actual and substantial doubts as to the guilt of the accused

persons arising from the evidence, or from the lack of it, as opposed

to mere vague apprehensions. A reasonable doubt is not an

imaginary, trivial or a merely possible doubt; but a fair doubt based

upon reason and common sense. It must grow out of the evidence in

the case".

16) In Dildar Singh Vers. State of Punjab (Supra) it is observed

that, thus, delay in lodging the first information report cannot be

used as a ritualistic formula for doubting the prosecution case and

discarding the same on the ground of delay in lodging the first

information report. Delay has the effect of putting the court on

guard to search if any explanation has been offered for the delay

and, if offered, whether it is satisfactory".

17) In Deepak Vrs. State of Haryana (supra), it is observed

that "the testimony of the prosecutrix in such cases is vital and

unless there are compelling reasons, which necessitate looking for

corroboration of her statement or where there are compelling

reasons for rejecting of her testimony, there is no justification on the

part of the court to reject her testimony.

18) The above discussed evidence shows that, the Victim was

the credible witness. Her consistent evidence support the case of 16 1- apeal 87-24.odt

prosecution. Her testimony is corroborated by the medical evidence.

The delay in not disclosing the incident by the Victim is natural and

not fatal for the prosecution. There is no delay in lodging the report

by the mother of the Victim, after she learnt about the incident. The

other evidence of the aunt and the employer of the Appellant further

supports prosecution's case. As regards the Charge for the offence

punishable under Section 452 of the IPC is concerned, there is no

evidence in respect of preparation by the Appellant for hurt, assault

or wrongful restrain before house trespass. However, the evidence

on record establishes the offence punishable under Section 451 of

the IPC. (House trespass in order to commit the offence punishable

with imprisonment). The re-appreciation of the evidence on record,

calls for no interference with the conviction recorded by the learned

Trial Court against the Appellant.

19) The learned Trial Court as seen from the operative order,

acquitted the Appellant for the offence punishable under Section 6

of the POCSO. The learned Trail Court imposed the punishment of

20 years and fine of Rs.15,000/- in default, to suffer RI for one (1)

year for the offence punishable under Section 4 of the POCSO and

no separate punishment is imposed for the offence of rape, and

rightly so, pursuant to the provisions of Section 42 of the POCSO 17 1- apeal 87-24.odt

which provides for alternate punishment which is greater in degree.

The minimum sentence for the offence punishable under Section

376 (3) of the IPC is Twenty (20) years and the sentence for the

offence punishable under Section 4 of the POCSO is not less than

Ten (10) years. The learned Trial Court has awarded the sentence in

accordance with law. Hence the following order.

                         ORDER

i)     The Criminal Appeal is partly allowed
ii)    The conviction and sentence for the offence punishable

under Section 452 of the IPC is converted to conviction for the offence punishable under Section 451 of the IPC. and the Appellant is sentenced to suffer imprisonment for one(1) year with fine of Rs.1,000/- in default, to suffer imprisonment for one(1) month.

iii) The conviction and sentence awarded by the learned Trail Court against the Appellant for the offence punishable under Section 376(3) and 506 of the IPC and for the offence punishable under Section 4 of the POCSO is maintained.

iv) The operative order in respect of the set off under Section 428 of the Cr.P.C., concurrent running of the sentence and directions to pay Rs.10,000/- from the fine amount to the Victim is maintained.

v) The excess amount of fine be refunded to the Appellant.

vi) The Record and Proceedings be sent back to the learned Trial Court.

18 1- apeal 87-24.odt

viii) Fees of the learned appointed Advocate for Respondent No.2 is quantified at Rs.10,000/- (rupees ten thousand only). The same be paid accordingly by the High Court Legal Services Authority.

(NEERAJ P. DHOTE, J.)

Kavita

Signed by: Kavita P Tayade Designation: PS To Honourable Judge Date: 06/04/2026 10:57:34