Someshwar S/O. Shriram Ambule vs The State Of Mah. Thr. Its Pso, Ps Amgaon, ...
2026 Latest Caselaw 3591 Bom

Bombay High Court

Someshwar S/O. Shriram Ambule vs The State Of Mah. Thr. Its Pso, Ps Amgaon, ... on 9 April, 2026

2026:BHC-NAG:5598




                                                     1                 6-appeal 658-23.odt

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH : NAGPUR
                             CRIMINAL APPEAL NO.658/2023
              Someshwar Shirram Ambule
              aged about 46 Years, Occup.Labour
              R/o Anjora,Tahsil, Amgaon, District Gondia,       Appellant
                     - Versus -
              1. State of Maharashtra,
                 through Police Station Officer,
                 Police Station Amgaon,, District Gondia.
              2. X.Y.Z. Victim
                 In Crime No.14 of 2016, registered by
                 Amgaon Police Station, Tah.Amgaon,
                 District Gondia
                                                                  Respondents

                                      -----------------
              Mr.K.G.Rathi, Advocate (appointed)for the Appellant.
              Mr.B.M.Lonare, A.P.P. for Respondent No.1/State.
              Ms.Punam Pisurde Advocate (appointed) for              Respondent
              No.2/Victim.
                                      ----------------
              CORAM: NEERAJ P. DHOTE, J.
              DATE OF RESERVING THE JUDGMENT:   13.02.2026.
              DATE OF PRONOUNCING THE JUDGMENT: 09.04.2026.

               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 31/03/2023, passed by the 2 6-appeal 658-23.odt

learned Sessions Judge, Gondia in Special (POCSO) Case

No.24/2016 convicting and sentencing the Appellant as follows:-

1. Accused Someshwar s/o Shriram Ambule is convicted for the offences punishable under Sections 376(2) (f) (i) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012, vide Section 235(2) of the Code of Criminal Procedure.

2. Accused Someshwar s/o Shriram Ambule is sentenced to undergo rigorous imprisonment for Ten (10) years and to pay fine of Rs.25,000/- (Rs. Twenty-five Thousand only), in default of payment of fine amount, he shall further undergo rigorous imprisonment for Six (6) months for the offence punishable under Section 376(2) (f) of the Indian Penal Code vide Section 235(2) of the Code of Criminal Procedure and.

3. No separate sentence is awarded for the offence punishable under Section 376(2)(i) of IPC and Section 6 of the POCSO Act.

4. The bail-bond and surety bond of the accused stands cancelled.

5. Accused Someshwar s/o Shriram Ambule is acquitted of the offence punishable under Sections 377 of the Indian Penal Code vide Section 235(1) of the Code of Criminal Procedure.

6. Accused Someshwar s/o Shriram Ambule is entitled for set off under Section 428 of the Cr. P. C. for the period since 18.02.2016 to 16.06.2016 i.e. (3 Months & 27 days) undergone by him in jail.

7. The seized muddemal property i.e. clothes of Victim and accused and memory cards etc. being worthless be disposed off after appeal period is over.

8. On realization of fine amount the same be paid to the Victim (name and address as per Charge-sheet) towards

3 6-appeal 658-23.odt

compensation in view of Section 357(1)(b) of Code of Criminal Procedure. In addition to this compensation, the Victim is also entitled for compensation under Section 357-A of Cr. P. C.

9. Copy of the judgment be supplied to the convicted accused free of costs.

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

as under:-

a] On 18.02.2026, the Informant, who was residing with her

family comprising husband and two daughters, lodged the report at

Aamgaon Police Station, District Gondia that, the Victim was her

minor daughter aged six (6) years. The Victim was studying in the

Pre-primary school (Anganwadi). The Appellant is son of her cousin

father-in-law and residing in neighbourhood. They were on visiting

terms. On 30.01.2016, it being Saturday, the Victim had the

morning school. The Informant left the house for work in the

morning. The Informant's husband had gone to other filed for work.

In the evening the Informant returned home. The Informant was

informed by the daughter of her cousin-in-laws that, the Victim

informed her that, the Appellant called her to his house on the

pretext of giving water and raped her. The Informant asked the

Victim and the Victim disclosed the incident to her. The Informant 4 6-appeal 658-23.odt

went to the Appellant. The Informant asked the Appellant about the

incident. The Appellant apologized. Since the Victim was not feeling

well, she was taken to the hospital. The Informant informed her

husband about the incident. The incident was reported to the police.

The crime came to be registered against the Appellant vide Crime

No.14 of 2016 for the offence punishable under Sections 377,

376(2)(i) of the Indian Penal Code,1860 (for short IPC) and for the

offence punishable under Sections 4,6,8,10 and 12 of the Protection

of Children from Sexual Offences Act, 2012 (for short POCSO).

b] The Statement of the Victim came to be recorded. The

Victim was referred for medical examination. The spot panchnama

was drawn. The Appellant came to be arrested. The Statement of

the witnesses were recorded. The necessary documents were

collected. The clothes of the Victim and of the Appellant came to be

seized. The seized articles were referred to the Chemical laboratory

for examination. On completion of the investigation, the Appellant

came to be Chargesheeted.

3) The learned Trial Court framed the Charge against the

Appellant below Exh.18 for the offence punishable under Sections

376(2)(f)(i) and 377 of the Indian Penal Code, 1860 (for short IPC)

and for the offence punishable under Sections 6 of the POCSO Act 5 6-appeal 658-23.odt

below Exh.18. The Appellant pleaded not guilty and claimed to be

tried.

4) To prove the Charge, the prosecution examined the

Informant as PW-1, the Victim as PW-2, the Villager and the

neighbourer as PW-3, the panch for spot panchnama and the seizure

of the clothes of the Victim as PW-4 and the Investigating Officer as

PW-5. The relevant documents are brought on record in the evidence

of these witnesses. 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,, to

defame him, the false case was registered. Appreciating the evidence

on record, 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 for the Victim. Scrutinised the

evidence on record.

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

that, the Appellant was the cousin uncle of the Victim. The

prosecution failed to prove that, the Victim was below 12 years of

age. The name of the mother of the Victim mentioned in the birth

certificate was different. There are material omissions in the 6 6-appeal 658-23.odt

testimony of the Victim and her mother. There was delay of Eighteen

(18) days in lodging the FIR. There is no medical evidence to

corroborate the prosecution's case. The Informant and the mother of

the Appellant were not on talking terms. The evidence on record do

not prove the Charge and the Appellant is entitled for acquittal.

b] It is submitted by the learned APP that, through the

evidence of the Victim, the Charge is proved. Victim's testimony

was consistent. There is corroboration to the Victim's evidence by

the evidence of the Informant and the Villager. As the Victim was

taken to the hospital, there was delay in lodging the FIR.

Considering the evidence on record, the learned Trial Court has

rightly convicted and sentenced the Appellant and the Appeal be

dismissed.

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

the Appellant was the relative of the Victim. The Appellant called

the Victim at his residence. Since, the medical examination was

done after 18 days, the same is not supporting the prosecution's

case. The Appeal be dismissed.

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

Section 2(d) of the POCSO Act i.e. below the age of 18 years, the

prosecution relied on the birth certificate below Exh.27 brought on 7 6-appeal 658-23.odt

record in the evidence of Informant who is the mother of the Victim.

PW-1 Victim's mother deposed that, the Victim was born in

December 2009. The said birth certificate was handed over by her to

the Police. The PW-5, Investigating Officer deposed that, during the

investigation, he issued the letter to the Secretary, Gram Panchayat

Anjora for the birth certificate of the Victim and the same was

received. Undisputedly, this is the only evidence in respect of the

date of the birth of the Victim. The Cross-examination of PW-1

Victim's mother shows that, her name was Geeta and not Gayatri.

Undisputedly, the mother's name is mentioned as Gayatri in the birth

certificate. Therefore, the said birth certificate cannot be accepted

as it is without further proof of the contents. The Victim's mother did

not depose the date of birth of the Victim. She only deposed that,

Victim was born in December 2009. The evidence brought on record

by the prosecution to prove that, the Victim was the child is neither

concrete nor sufficient. However, it is not seriously disputed that,

the Victim was below 18 years of age.

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

the Victim, who is examined as PW-2. The Victim deposed of rape

on her by the Appellant in the year 2016. She knew the Appellant.

The Appellant was residing near her house. She used to visit the 8 6-appeal 658-23.odt

Appellant's house. She went to the house of the Appellant. The

Appellant asked her to give the water. She gave water to the

Appellant. When she went to put the glass, the Appellant closed the

door, followed her, removed her undergarments and also his and

committed peno-vaginal intercourse. The Appellant gave his penis

in her moth. The Appellant asked her not to disclose the incident to

anyone. She disclosed the incident to her elder sister and

Panchfulabai (PW-3) and other witnesses. She narrated the incident

to her mother. As she became seek, she was taken to the hospital.

Her statement was recorded. Her clothes were seized.

8) The Victim was subjected to cross examination. Her

evidence that, the Appellant asked her to bring water, she gave

water and went to put glass the Appellant closed the door, caught

hold her and committed peno-vaginal intercourse are the omissions

which are proved through PW-5- Investigating Officer. These are

undoubtedly material omissions which go to the root of the case.

The cross-examination of the Victim shows that, the Appellant was

residing with his wife, son and daughter and the Appellant's house

comprised of two rooms having tin shed in the front and at the time

of the incident, the marriage of Appellant's daughter was fixed and

due to that, there was frequency of guests at the Appellants house.

9 6-appeal 658-23.odt

This being the evidence on record, the Victim's testimony in respect

of the incident is required to be seen with doubt. The Victim's

evidence nowhere shows that, the Appellant was alone at his house

at the time of the incident. Evaluation of the Victim's evidence

shows that, her evidence do not inspire confidence and cannot form

the basis to prove the Charge.

9) The Informant who is the mother of the Victim, is

examined as PW-1. She deposed that, she came to know about the

incident from Ranu, who is not examined, and also from the Victim.

The cross-examination shows that, the Informant's evidence on

material aspect was an omission, which was proved through PW-5-

Investigating Officer. It is further fortified in the evidence of the

Informant that, in January 2016 i.e. at the time of the incident, the

Appellant was residing with his mother and daughter and at the

time of incident, the marriage of Appellant's daughter was fixed.

Their house was in the residential area surrounded by many houses.

The suggestions are given to the Informant that, to defame the

Appellant, false case was lodged and on the day of marriage of

Appellant's daughter, the Appellant was behind bars.

10) The evidence of PW-3 Panchfula Chaudhari shows that,

she learnt about the incident from the Victim. According to her, 10 6-appeal 658-23.odt

incident was of oral sex. It has come in her cross-examination that,

the wife of the Appellant and the Appellant were not on talking

terms with the Victim's mother i.e. the Informant from many years.

However, the Informant denied the suggestion of dispute between

her and wife of the Appellant. This indicate that, the Informant was

not the wholly reliable witness.

11) The evidence of PW-4 Fanendrakumar Yeduji Gauram

shows that, he acted as the panch for the spot panchnama and

seizure of the clothes of the Victim. The evidence of PW-5 Vishal

Subhash Raje shows that, he investigated the crime. Though the

Investigating Officer deposed that, before lodging the FIR, the Victim

was medically examined, no medical papers are brought on record

in respect of the said medical examination of the Victim. The Exh.50,

medical examination report of the Victim do not show any evidence

of sexual intercourse, no evidence of attempt of sexual intercourse

and no evidence of unnatural sex, the hymen is shown to be intact,

no injuries on the labia majora, labia minora, the Clitoris is shown

intact, no injury to any genitals, no external or internal injuries.

This document is admitted by the defence. The history in Exh.50 do

not reflect the name of the Appellant. This medical evidence do not

support the prosecution's case, in any manner.

11 6-appeal 658-23.odt

12) The above discussed evidence shows that, the

prosecution utterly failed to prove the Charge. The place of the

incident was the Appellant's house, wherein he was residing with his

family members. The Victims evidence on the point of the incident

was an omission. The Informant's evidence was in the nature of

improvement on material aspects. The relations between the

Informant and the Appellant and his wife were not cordial. The

medical evidence is far from corroborating the Victim's testimony. As

the prosecution failed to establish the primary/basic facts of the

case, there is no question of raising the presumption under Section

29 of the POCSO Act. With the evidence available on record, it is not

possible to maintain the conviction. Thus, the impugned judgment

and order requires interference. Hence, the following order.

                         ORDER

i)     The Criminal Appeal is allowed
ii)    The conviction and sentence awarded by the learned Sessions

Judge, Gondia in Special (POCSO) Case No.24/2016 against the Appellant is quashed and set aside.

iii) The Appellant is acquitted for the offence punishable under Section 376(2)(f)(i) of the Indian Penal Code and for the offence punishable under Sections 6 of the POCSO.

12 6-appeal 658-23.odt

iv) The Appellant is behind bars, he be released, if not required in any other offence.

v) The fine amount if paid, be refunded to the Appellant.

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

vii) Fees of the learned appointed Advocate for Appellant is quantified at Rs.10,000/- (Rupees Ten thousand only). The same be paid by the High Court Legal Services Authority.

viii) Fees of the learned appointed Advocate for Respondent No.2 is quantified at Rs.7,500/- (Rupees Seven thousand and Five hundred only). The same be paid by the High Court Legal Services Authority.

(NEERAJ P. DHOTE, J.)

Kavita

Signed by: Kavita P Tayade Designation: PS To Honourable Judge Date: 09/04/2026 13:09:26