[Cites 21, Cited by 0]
Bombay High Court
Mahadu Krushna Dherange vs Tthe State Maharashtra And Another on 4 February, 2026
2026:BHC-AUG:6220
905-APEAL-36-26.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 36 OF 2026
WITH CRIMINAL APPLICATION NO. 875 OF 2025
Mahadu Krushna Dherange,
Age: 63 yrs, Occ: Agri.,
R/o: Ambi Dumala, Tq. Sangamner
Dist. Ahmednagar ..APPELLANT
VERSUS
1. State of Maharashtra
Through Ghargaon Police Station,
Ghargaon, Tq. Sangamner
Dist. Ahmednagar.
2. XYZ ..RESPONDENTS
....
Mr. B.S. Dhawale, Advocate for appellant
Mrs. M.N. Ghanekar, A.P.P. for respondent no.1 - State
Mr. A.B. Nehe, Advocate for respondent no.2
....
CORAM : RAJNISH R. VYAS, J.
DATE : 04th FEBRUARY, 2026
ORAL JUDGMENT :
. The present appeal takes exception to the judgment passed in
Special Case No. 16 of 2018 by the Extra Joint District Judge and Additional
Sessions Judge, Sangamner, by which the appellant is convicted and
sentenced for the commission of following offences :
Section Sentence Fine Default Sentence
376(2)(i) of I.P.C. R.I. for 10 years Rs.2,000/- S.I. for 3 months
4 of POCSO R.I. for 7 years Rs.2,000/- S.I. for 3 months
6 of POCSO R.I. for 10 years Rs.2,000/- S.I. for 3 months
All the sentences were ordered to run concurrently.
905-APEAL-36-26.odt
2. In short, it is the case of the prosecution that the accused was 63
years of age at the time of the incident and had asked the victim to take his
penis in her mouth, and thereafter the accused touched the vagina of the
victim with his private part. The said act was reported to the concerned police
station by the victim's mother, upon which an F.I.R. was registered against the
accused, and an investigation was subsequently carried out. During the
investigation, the appellant was arrested on 03 rd April, 2018, and the clothes
of the appellant and the victim were also seized.
3. The victim and appellant were subjected to medical examination.
Spot panchanama was also drawn. Statement of the victim, under Section 164
of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), was
also recorded. Upon completion of the investigation, Charge-sheet No. 29 of
2018, dated 04th August, 2018, was filed against the accused. As the accused
did not plead guilty to the charges framed by the trial Court below (Exhibit
11), on 07th July, 2021, the prosecution, to prove the guilt, examined eleven
witnesses. Thereafter, the accused was questioned under Section 313 of the
CrP.C. While answering the same, he took the defence of total denial and
false implication. The trial Court then convicted the appellant of the offences
stated above, heard him on sentence, and awarded the sentence stated above.
4. Since the appellant is convicted for the commission of an offence
punishable under the Protection of Children from Sexual Offences Act, 2012
905-APEAL-36-26.odt
(hereinafter referred to as 'the Act of 2012'), it is necessary to see whether the
prosecution has proved that at the time of the incident, the victim was a
'child' or not. Section 2(d) of the Act of 2012 defines 'child' as any person
below the age of eighteen years.
5. PW 4 is the mother of the victim, who has deposed that at the time
of the incident, the victim was studying in 2 nd standard and her age was 8
years. So far as the age of the victim is concerned, in cross-examination,
nothing has been put by the accused to this witness except the suggestion that
the statement given by her is false. PW 5 is the victim of a crime, who has
stated that she was born on 24.12.2010. Needless to say, PW 5 cannot prove
her date of birth, as her evidence would be hearsay in that regard.
6. Prosecution has examined PW 11, who was working on the post of
Gramsevak with the concerned Grampanchayat. He submitted that the
concerned police station had requested to provide the birth certificate of the
victim, and accordingly, he provided it. He submitted that the said birth
certificate was issued based on entry no. 22 mentioned in the birth register.
The entry for the victim's date of birth was taken on 31.12.2010, whereas the
victim's date of birth was 24.12.2010. He also deposed about the names of the
mother and father of the victim. He stated that the victim's grandfather had
submitted an application, based on which the information was noted. He was
905-APEAL-36-26.odt
shown Exhibit 44, the birth certificate, and proved the same. In cross-
examination, it was only suggested to this witness that the birth certificate
was given at the request of the parents of the victim. He denied the said fact.
He also denied that a false birth certificate was given.
7. Perusal of the testimony of this witness reveals that the
prosecution has not challenged the age of the victim with all seriousness. Even
learned counsel for the appellant has submitted that the child's age is not in
dispute.
8. Considering the nature of evidence and the birth certificate, which
are produced on record and proved, I conclude that the prosecution has
proved that at the time of the commission of the offence, the victim was a
'child' and her date of birth is 24.12.2010.
9. Since the accused is convicted for the commission of an offence
punishable under Section 376(2)(i) of the Indian Penal Code (hereinafter
referred to as ' I.P.C.'), it is necessary to see what said section says. The said
section concerns the commission of an offence against a woman under sixteen
years of age. Section 375 of the I.P.C. says a man said to commit rape if he
penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of
a woman or makes her to do so with him or any other person. At this stage, it
is necessary to mention here that clause (i) of sub-section (2) of Section 376
905-APEAL-36-26.odt
of the I.P.C. was deleted with effect from 21 st April, 2018, whereas the offence
in question occurred before the date of omission of said clause. In view of the
same, the said section is applicable in the present case.
10. The appellant is also convicted for the commission of an offence
punishable under Section 4 of the Act of 2012, which prescribes punishment
for penetrative sexual assault. Penetrative sexual assault is defined under
Section 3 of the Act of 2012. Ingredients of Section 375 of the I.P.C. and
Section 3 of the Act of 2012 are somewhat similar.
11. The appellant is also convicted for the commission of an offence
punishable under Section 6 of the Act of 2012, which prescribes punishment
for aggravated penetrative sexual assault. Aggravated penetrative sexual
assault is defined under Section 5 of the Act of 2012. Whenever a penetrative
sexual assault is committed, clause (m) of Section 5 of the Act of 2012 comes
into play, which says whoever commits rape on a child below twelve years of
age is said to have committed aggravated penetrative sexual assault.
12. In this background, it will have to be decided whether prosecution
had proved offence of penetrative sexual assault and rape as defined under
the Act of 2012 and I.P.C. In this regard, the testimony of PW 5 / victim
would be of vital importance.
905-APEAL-36-26.odt
13. PW 5 / victim, in her testimony, has stated that at the relevant
time she was studying in 2nd standard and on many occasions she used to go
to school by walking or was dropped off by vehicle. She stated that there was
standing grass and that the accused had called her. Thereafter, the accused
had asked her to take his penis in her mouth. The accused had touched his
private part to her vagina. She deposed that, out of fear of her mother, she
did not disclose the aforesaid fact to her mother or anyone else. She stated
that she was called to the police station and that she narrated the incident to
the police. She stated that she could identify the accused and had, in fact,
identified the accused in Court. According to her, her date of birth is
24.12.2010.
14. In cross-examination, she admitted that she was liked by her
parents as well as by her grandparents. Also, her grandparents did not allow
her to go anywhere alone. She also stated in cross-examination that she used
to return to the house by 06:00 in the evening. She denied that she had
narrated the incident to the police and to the Court, as per her mother's
instructions.
15. Her cross-examination was completed on 06th August, 2021.
Perusal of the record shows that on 09 th October, 2021, the prosecution
moved an application under Section 311 of the Cr.P.C. for the recall of the
905-APEAL-36-26.odt
victim. The accused/defence did not object to the application, which was
consequently allowed, and the victim again entered the witness box on 22 nd
October, 2021.
16. This time, the victim, in her examination-in-chief, had stated that
the accused used to ask her to take his penis in her mouth, and she acted
accordingly. When she refused, the accused told her that he would tell her
mother. She also deposed that the accused tried to give her a certain amount,
but she refused to accept it. She further deposed that her statement was
recorded before the Court and that she had narrated the incident before it.
She further stated that her statement was recorded in the Court, as her
mother had stated. Statement under Section 164 of the Cr.P.C. was then
proved by her, which was at Exhibit 48.
17. At this time, cross-examination was conducted again, and it was
suggested to her that on the concerned road, there is a house and a field of
one Ravi. A suggestion was given to her that the incident narrated regarding
the accused asking her to take his penis in her mouth was false, which she
denied. She also denied other suggestions.
18. If the statement of the victim under Section 164 of Cr.P.C., below
Exhibit 40, is perused, it would reveal that the victim had stated that on the
905-APEAL-36-26.odt
day of the incident, the accused initially called her. When the victim did not
go near him, the accused caught hold of her hand and pulled her into the
grass. Thereafter, the accused removed his pants, and so also of victim. At the
relevant time, the victim was resisting the said act. She further stated that
when she tried to run away, the accused caught hold of her leg and again
obstructed her. She further stated that the accused used to penetrate his
private part in her mouth and vagina.
19. At this stage, it is necessary to discuss the testimony of PW 7 /
Ravindra, who has seen the accused and victim at the spot of the incident.
This witness has deposed that he knows the family of the victim, and when
the incident took place, the victim was studying in 2nd standard. On the day of
the incident, when he was standing in his field at about 05:30 p.m., the
accused was grazing cattle, at which time the girl was on her way home from
school. The accused was sitting on the boundary of the field, and the girl was
there. While he was collecting the grass, he noticed that the girl was in a bent
position in front of the accused, and as soon as they saw PW 7, they stood up.
At that time, the accused had his half-pant removed to his knees, and
thereafter he went away.
20. He was then intended to discuss the incident with the father of the
victim, but since the father of the victim could not meet, he could not narrate
905-APEAL-36-26.odt
the incident. He disclosed that he had narrated the said incident to PW 8 /
Pankaj. He stated that he did not visit the accused's house. He stated that the
police recorded his statement. He stated that his statement under Section 164
of Cr.P.C. was recorded, which is at Exhibit 31.
21. In cross-examination, he admitted that he and PW 8 / Pankaj are
good friends of PW 6 / Ankush / father of the victim, and they used to help
each other. He denied the suggestion that Ankush was his cousin brother. He
stated the accused used to work as labour in his field on some occasions. He
denied that any wages were outstanding and accused the came to house to
demand the money, and, for that reason, a quarrel ensued. A suggestion was
given to him that the aforesaid three have conspired to lodge a false report
against the accused. The said suggestion was also denied. Thus, it is crystal
clear that on the day of the incident, PW 7 had seen the victim and the
accused together at a secluded place, at which time part of the victim's pants
was removed, and the accused's pants was removed till his knees. The victim
was in a bent position in front of the accused.
22. This takes me to the testimony of PW 4 / mother of the victim. In
her testimony, she stated that at the time of the incident, the victim was in 2 nd
standard. She was 8 years old and used to reside with her grandparents. She
submitted that on 03rd April, 2018, she filed the complaint, though she came
905-APEAL-36-26.odt
to know of the incident on the 1st , whereas, the incident had occurred before
8-10 days. She stated that Pankaj was a friend of her husband, and he had
informed her husband that Ravindra had seen the accused taking the victim in
the grass, and the accused had removed his pants, which Ravindra saw.
23. PW 4 then stated that an enquiry was made with the victim, who
disclosed that the accused offered her money for purchasing candies and took
her to a place where grass was grown, removed his pants as well as hers. She
stated that the victim had disclosed to her that the accused had touched his
private part to her private part and used to penetrate his private part in her
mouth. PW 4 then stated that, thereafter, she, along with her husband and
Pankaj, went to the house of the accused. When the accused was questioned,
he initially denied committing the offence. Thereafter, Ravindra was called,
and when he arrived, the accused admitted his guilt, and they then went
home. Thereafter, it was decided on the third day of the month to lodge the
report; accordingly, it was lodged, and the statement of PW 4 was marked as
Exhibit 27. She deposed that the date of birth of the victim is 24th December,
2010.
24. In cross-examination, she stated that Ravi was the cousin of the
victim and that Ravi, Pankaj, and her husband were good friends. She stated
that she had known the accused since her marriage, since the accused used to
do labour work and graze the cattle near her house. She denied that the
905-APEAL-36-26.odt
accused had seen her and Pankaj in a compromising position, and therefore,
both of them went to the house of the accused. It was also stated to her that a
quarrel had taken place between the accused and Ravi regarding non-
payment of wages, and that, for this reason, a false case was filed.
25. In cross-examination, she admitted that the incident narrated in
the complaint had taken place before 15 to 20 days. She also admitted that
she, her husband, and Pankaj had been to the accused's house. She stated that
she was pregnant at the time of lodging the complaint and that an error might
therefore have occurred at that time. In this context, the medical officer's
testimony will have to be considered.
26. PW 10 / Medical Officer deposed that in the year 2018, he was
working at Primary Health Centre, Ghargaon as Medical Officer. On 05 th
April, 2018, he examined the victim after taking consent and recorded the
victim's medical history, in which the victim stated that she was called by the
accused twenty days before. He had given Rs. 10-20/- to her, and thereafter
the accused had removed her clothes and used to give his private part in her
mouth and used to insert the same in her vagina. The said act was done 4 to 5
times. He then examined the victim and prepared the report, which was at
Exhibit 41. He also examined the accused on the same day and issued a
certificate to that effect, as shown in Exhibit 42 below. He opined that there
was a possibility of sexual assault upon the minor girl.
905-APEAL-36-26.odt
27. In cross-examination, he admitted that he did not find any internal
and external injury on the minor girl. He also stated that he has not issued a
final opinion in that case. If Exhibit 41 is perused, it would reveal that there
are no external injuries and there was no injury to the labia majora and labia
minora.
28. It is in this background that learned counsel for the accused
contended that the testimony advanced by the victim, mother and the medical
officer, as well as the father, is not cogent, reliable, and in fact failed to make
out any case for offences for which the accused is convicted. According to
him, there is a delay in lodging the F.I.R., and, further, medical evidence
supports his case. He submitted that it was a striking case of false implication,
since the accused had seen PW 4 in a compromising position with Pankaj,
and, further, the wages outstanding were not paid to the accused; therefore, a
false report was lodged.
29. He further submitted that even if the testimony of the mother of
the victim is taken into consideration, it would be clear that what the accused
had done was only touch his private part with the private part of the victim.
Therefore, it cannot be said that there was penetration. He then submitted
that when there is no penetration, then the accused should not have been
convicted for the commission of an offence punishable under Section 376(2)
905-APEAL-36-26.odt
(i) of the I.P.C. According to him, there are several material omissions and
contradictions in the witnesses' testimony. PW 7, who is the eyewitness,
would in fact not be an eyewitness, and his testimony is not enough to
conclude that there was sexual intercourse. He also submitted that in the
initial examination-in-chief and cross-examination, the victim had only stated
that the accused had touched his private part with the private part of the
victim, and nothing about insertion/penetration was stated. He then
submitted that the prosecution, to plug the loopholes, recalled the victim and
re-examined her. This time, the victim narrated the incident of insertion of the
private part of the accused in her mouth and vagina at the instance of the
accused. He submitted that the prosecution violates the norms governing a
fair trial, and therefore, the appellant is liable to be acquitted. He further
submitted that, according to the prosecution witnesses, the accused was found
wearing a half pant, whereas what was seized was a full pant; therefore, the
testimony will have to be considered with a corrected approach.
30. Assailing the testimony of PW 5 / victim, who was a child studying
in 2nd standard at the time of the incident, learned counsel for the appellant
has relied upon various authorities, including the law laid down by the Apex
Court in the case of Digamber Vaishnav and Ors. Vs. State of Chhattisgarh
reported in MANU/SC/0316/2019, more particularly paragraph no. 21. So
also Criminal Appeal No. 422 of 2020 in Nikhil and Ors. Vs. The State of
905-APEAL-36-26.odt
Maharashtra decided on 29.09.2023, as well as Criminal Appeal No. 642 of
2020 in Sudhir and Ors. Vs. State of Maharashtra and Ors. decided on
31.01.2024 by the coordinate Bench of this Court. The Hon'ble Supreme
Court and this Court, in the aforesaid judgments, have laid down the
following principles:-
(i) The witness can be categorised as wholly reliable, wholly
unreliable, partly reliable or partly unreliable;
(ii) The testimony of a child witness is required to be taken into
consideration with due care and caution.
(iii) Corroboration is required to be looked into.
(iv) Statement recorded under Section 164 of the Cr.P.C. is not a
substantive piece of evidence, and therefore, cannot be
solely relied upon to award the conviction.
(v) The testimony of the child will have to be tested in the light
of the surrounding material available on record.
31. He then submitted that the child witness's testimony cannot be
relied upon as she has changed her version from time to time, i.e. in the
statement recorded under Section 164 of Cr.P.C. and deposition before the
Court. He, thus, prays for acquittal.
32. Learned A.P.P. submitted that the prosecution has proved the case
beyond a reasonable doubt, and the evidence laid by the prosecution was
cogent and trustworthy. She submitted that there is absolutely no delay in
lodging of F.I.R. and there was, in fact, no contradiction. According to her,
905-APEAL-36-26.odt
any contradiction, if any, is minor, and the fact that one of the witnesses
stated the accused was wearing a half pant, while what was seized was a full
pant, would not go to the root of the matter. She submitted that it is not the
case that the prosecution is contending that the statement under Section 164
of Cr.P.C. is the only evidence available. She submitted that the victim was
studying in 2nd standard and there was absolutely no reason to implicate the
accused falsely. According to her, the defence taken regarding the illicit
relationship between the mother of the victim and Pankaj is fragile one.
33. Learned counsel appearing for Respondent No.2/victim has invited
my attention to Section 29 of the Act of 2012 and contended that since the
prosecution proves the foundational facts, the presumption triggers, and the
accused has not rebutted the said presumption. He contended that the
accused could have very well rebutted the presumption, either by cross-
examination, by entering the witness box or by examining any defence
witness. Since the accused has not rebutted the evidence, he will have to face
the consequences.
34. I have given the thoughtful consideration to arguments advanced
by respective counsels and have gone through the record of the case.
Admittedly, at the time of the incident, the victim was studying in 2 nd
standard. She has identified the accused in the examination-in-chief. The
905-APEAL-36-26.odt
victim has stated that the accused had called her at a place where there was
grass and asked her to take his penis in her mouth. She further stated that the
accused had touched his private part to her private part. She submitted that,
out of fear of her mother, she did not narrate the incident. At this juncture, it
is necessary to mention that this witness was recalled, and no objection was
raised by the accused to her recall. Accordingly, when on the second occasion
this witness/victim entered the witness box, she categorically stated that the
accused had asked her to take his penis in her mouth, which the victim did.
On the second occasion, she did not state anything about penetration in the
vagina. The fact remains that in the statement under Section 164 of the
Cr.P.C., the victim has categorically stated that the accused used to forcefully
penetrate his private part in the mouth of the victim.
35. According to learned counsel for the appellant, this is an
improvement, and this should not have been relied upon while awarding a
conviction. It is necessary to mention here that the aforesaid part cannot be
termed as an improvement for the reason that, in the examination-in-chief,
she has categorically stated that the aforesaid act of inserting the private part
in the mouth was done by the accused. Had there been any grievance
regarding the recall of the witness/victim and the recording of evidence, the
accused could have taken objection. The said step was not taken by the
accused. On the contrary, no objection was given by the accused to the said
905-APEAL-36-26.odt
application. Even in cross-examination, nothing has been brought on record to
disbelieve the victim's testimony. Thus, it cannot be said that what has been
taken into consideration is the statement recorded under Section 164 of
Cr.P.C. only. The witness has categorically stated about the incident in
examination-in-chief.
36. As rightly pointed out by learned counsel for Respondent No.2, the
presumption under Section 29 and 30 of the Act of 2012 has also triggered.
The prosecution has proved the foundational fact by way of recording the
victim's evidence; therefore, it was on the accused to rebut the presumption.
The accused did not make any effort to rebut the presumption; therefore, he
will have to face the legal consequences flowing from the mandate of Sections
29 and 30 of the Act of 2012.
37. The testimony of the victim of the crime, as well as the testimony
of PW 7, clearly shows that the accused had removed his pants and the victim
was in a bent position. PW 7 had seen the accused and the victim at a
secluded place. The accused's intention can also be inferred from the
surrounding circumstances. As the previous and subsequent conduct of the
accused is important, according to Section 8 of the Indian Evidence Act, 1872,
it is necessary to mention here that when the parents of the victim visited the
house of the accused, he initially denied the commission of the offence, but
905-APEAL-36-26.odt
subsequently admitted it. Though it is well-settled law that the said admission
in criminal law would not carry any weight, the fact remains that his conduct
shows he had a guilty mind at the relevant time.
38. So far as medical evidence is concerned, learned counsel for the
appellant may be right in saying that the testimony of PW 10 / Medical
Officer fails to support the case of the prosecution. But it is not the mandate
of law that in every case of rape, the medical evidence should be supportive of
the case of prosecution. Even the slightest penetration is sufficient to prove
the offence of rape. In this case, the penetration is not only in the vagina, but
also in the mouth of the victim. The defence taken by the accused regarding
the false implication is also unsupported. The defence that since PW 4 /
mother of the victim was found in a compromising position with one Pankaj,
and therefore, a false report was lodged, does not inspire confidence since no
mother, in the peculiar facts and circumstances of the case, would ask her
daughter to depose falsely about sexual intercourse. It cannot be denied that
such a version would affect the future of the child.
39. In the aforesaid background, there is absolutely nothing to
disbelieve the testimony of the victim, who was at the relevant time 7 years
and 2 months and 1 day old. As already stated, the case advanced by the
prosecution is Cogent and reliable and the trial Court has correctly and
905-APEAL-36-26.odt
properly appreciated the evidence. In the aforesaid facts, I am not inclined to
allow the present appeal and accordingly, the following order is passed:-
ORDER
(I) Criminal appeal is rejected.
(II) Criminal applications pending, if any, stands disposed of
accordingly.
( RAJNISH R. VYAS, J. )
SSD
