[Cites 14, Cited by 0]
Bombay High Court
Father (Accused As Per Lower Court ... vs State Of Maharashtra And Anr. on 9 February, 2026
2026:BHC-AS:6856 47 APEAL 443-23-CR.DOC
Priya Soparkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 443 OF 2023
Father-Accused as per lower court
judgment, Add- Flat No.8, 3rd floor,
Diamond Palace, 15A Hill road, Bandra
(West), Mumbai 400 050. Presently lodged ...Appellant
at Aurangabad Central Prison. (Org. Accused)
~ versus ~
1. The State of Maharashtra, at the
instance of Santacruz Police
Station, Mumbai.
2. XYZ, Age 50 years, Occ: Service,
R/at : Room No. 402, Harmony
Plaza, C.H.S. Amar Subway
Road, Near Milan Subway,
Santacruz (West), Mumbai
400054. ...Respondents
A PPEARANCES
For the Appellant Mr. Amrish Salunke
For Respondent No.2 Ms. Manisha Jagtap (Appointed
legal-aid Advocate)
For the State Mr. H. J. Dedhia, APP.
CORAM : R.M. JOSHI, J.
RESERVED ON : 29TH JANUARY, 2026.
PRONOUNCED ON : 9TH FEBRUARY, 2026.
Digitally
signed by
PRIYA
PRIYA RAJESH
RAJESH SOPARKAR
SOPARKAR Date:
2026.02.10
18:18:28
+0530
Page 1 of 15
nd
2 February, 2026.
::: Uploaded on - 10/02/2026 ::: Downloaded on - 10/02/2026 20:31:55 :::
47 APEAL 443-23-CR.DOC
JUDGMENT:
-
1. This appeal takes exception to the judgment and order dated
23rd February, 2023 passed in POCSO Special Case No.68 of 2018,
whereby, the Appellant came to be convicted for the offenses
punishable under Sections 6 and 12 of POCSO Act and Sections
323 and 506 of IPC and the Appellant is sentenced to suffer
maximum period of rigorous imprisonment of 10 years with fine.
2. Informant is the mother of the victim aged about 11 years.
On 25th November, 2017 she along with the victim approached to
Santacruz police station and filed First Information Report (FIR)
against Appellant/accused who is the father of the victim. It is a
contention of the Informant therein that she was married to the
accused on 10th July, 2000 and accused being hot-tempered, there
used to occur frequent quarrels between them on petty counts. She
also alleged that accused used to demand money from her.
However, she ignored the quarrels and demands. It is claimed that
victim was born on 9th April, 2006. She claims that both Informant
and accused were working and as there was no one to look after
the victim for initial 4 years, they stayed at her parents' house. She
further claims that in the year 2009 accused told Informant about
he would take care of the daughter and therefore, they shifted
from the parental home of the Informant. It is claimed that the
accused left his job and that the Informant was bearing all
household expenses. She further claims of accused beating and
abusing her. It is also stated therein that since the victim was seen
under pressure and scared and she inquired with her about the
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
same from time to time, however, victim did not disclose anything
to her.
3. On 2nd September, 2017, the Informant and victim shifted to
the house of her mother. Informant claims that on 24 th October,
2017, she inquired with the victim as to the cause of her
disturbance. Upon which, victim disclosed her that since last four
years the accused used to roam in the house wearing shorts,
displaying his private part. She also informed that the accused
used to show her obscene videos in the absence of the Informant
and explained sexual relationship between woman and a man etc.
It is claimed that he threatened her not to disclose the same to
anyone. There is also allegation against the accused that he used to
make the victim sit on his lap and used to touch her with his
private part. There are other allegations which include allegation
of inserting finger in the vagina of the victim. On the basis of the
said information, crime came to be registered vide C.R.No.645 of
2017 for the offences punishable under Sections 376(2)(n)(i), 35-
A, 509, 323, 504 and 506 of IPC and under Sections 6, 10 and 12
of the POCSO Act.
4. The investigation into the said crime was conducted by
woman police officer. Accused was arrested. Statement of the
victim and other witnesses were recorded under Section 161 of Cr.
P.C. Statement of the victim was also recorded under Section 164
of Cr.P.C. The documentary evidence collected during the
investigation such as birth certificate of the victim, medical reports
etc. were included in the investigation papers. On conclusion of the
investigation, charge-sheet is filed against the accused. Charge was
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
framed against him vide Exhibit 10. He denied the charge and
hence was tried. Prosecution examined in all eight witnesses, such
as PW 1- Informant, Mother of the victim (Ex.16), PW2-M-
Grandmother of victim (Ex.27), PW 3-Victim (Ex.32), PW 4-
Medical Officer of KEM Hospital (Ex.42), PW 5- Mukesh Damji
Shah(Ex.44), PW 6- SHO Aarti S. Gaware, Investigating Officer
(Ex.47), PW 7- PSI Ashwinikumar Annasaheb Kagle (Ex.52), PW 8-
PI Jyoti Ghanshyam Bagul,(Ex. 53).
5. Apart from this, documentary evidence i.e. FIR-Exhibit 16,
statement of victim under Section 164-Exhibit 24, Complaint dated
11th November, 2017-Exhibit 31, birth certificate-Exhibit 33,
medical examination report of victim-Exhibit 43, panchanama and
other documents were relied upon by the prosecution.
Incriminating circumstances were put to the accused in his
statement under section 313 of Cr.P.C. Learned Trial Court found
evidence led by the prosecution to be sufficient to prove the guilt
of accused beyond shadow of reasonable doubt and hence,
recorded conviction against him by the impugned judgment and
order.
6. Learned counsel for the Appellant submits that in this case
there is ample evidence on record to indicate that the relationship
between Informant and wife and accused-husband was not cordial.
It is his submission that as admitted by the Informant, she had
grievance against the accused for her alleged abuse and beating at
his hand. It is submitted that in this backdrop the delay caused in
lodging of the report assumes importance. It is his submission that
the allegations in the FIR are with regard to the incident occurred
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
prior to four years of lodging of the report. He drew attention of
the Court to the evidence of the mother of the victim i.e. Informant
and her grandmother, to argue that a serious doubt is created as to
whether really any description of alleged act of the accused were
given by the victim to them. It is submitted that a complaint was
made by Informant to the concerned police station on 11 th
November, 2017 (Exhibit 31), which was admittedly given after
the alleged disclosure of the acts done by the accused to the victim
and inspite of the same, there is no reference about the same in the
said complaint made by the Informant. He further argued that the
Informant has admitted in her cross-examination that even just
before lodging of the report, advertisement was given for sale of
the flat belonging to the accused and therefore, it is clear that the
Informant was interested in selling the property and hence lodged
false report against accused. It is, therefore, his contention that
there is reason to believe that the Appellant/accused is falsely
implicated in this crime by using the daughter to lodge report
against him. It is his further submission that there is no medical
evidence in order to support the alleged acts committed by the
Appellant/accused. Apart from this, he took this Court through the
evidence of victim which according to him, is full of omissions. So
also there are admissions which indicates that there is no
substance in the contention of the Informant about the alleged acts
committed by the accused. It is therefore argued that it is not the
case wherein it can be said that the offence has been proved
against the Appellant beyond reasonable doubt.
7. Learned APP supported impugned judgment and order. It is
his submission that owing to the fact that the victim is minor, she
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
will have no reason to falsely implicate her own father in the crime
like this. He argued that it would be always difficult for a wife to
take action against the husband promptly, and hence the delay, if
any caused in lodging of the report would not become a ground for
acquittal of the accused. He drew attention of the Court to the
statement of Informant and victim, which, according to him, is
consistent with their previous statements. With regard to the
allegations made by the counsel for the Appellant about malafide
intention of the Informant to sell house is concerned, it is his
submission that admittedly, the house in question is in their joint
name and hence, there was no possibility of the same being sold in
order to grab the sale proceeds of the said flat.
8. The learned counsel for the Respondent No.2 apart from oral
submissions filed written notes of arguments. On the point of delay
in lodging of the report, it is contended that the child since was
under control of the father, victim did not find it safe to disclose
the abuses to anyone till they moved to the house of the mother of
Informant. It is submitted that only after the victim disclosed the
acts committed by the accused, report came to be lodged without
any delay. It is also contended that the delay even if it is there in
lodging of the report by itself will not be a ground to discard
evidence of victim. It is argued that testimony of victim is natural
and trustworthy and therefore, is sufficient to sustain conviction. It
is further submitted that the defence taken by the accused of false
implication over the property dispute has no substance and hence,
has been rightly rejected by the Trial Court. She further argued
that in view of the presumption under Sections 29 and 30 of
POCSO Act and owning to the evidence on record it cannot be said
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
that the defence was able to rebut the said presumption. On these
amongst other submissions, the impugned judgment and order is
supported.
9. The prosecution has led evidence in the form of the birth
certificate of the victim (exhibit 33). The defence has neither
disputed the same nor the age of the victim at the time of
occurrence of the incident. The evidence on record, therefore,
shows that the victim was below age of 18 years at the time of
occurrence of incident alleged and as such, she was a child under
Section 2(d) of the POCSO Act. The provisions of the said Act,
therefore, are rightly invoked in this case.
10. It is settled position of law that in case of sexual
abuse/assault on a woman, if her testimony is found wholly
reliable and free from doubt, the same can become sole basis for
conviction of the accused without seeking any further
corroboration. However, at the same time the court is required to
take into consideration the facts and circumstances brought on
record in its totality and then to decide as to whether the
prosecution was able to prove the guilt of the accused beyond
reasonable doubt. Keeping in mind this position of law, the
evidence led by the prosecution is assessed.
11. There is no dispute about the fact that the marriage between
Informant and accused was performed on 10 th July, 2000 and
victim girl was born out of the said wedlock on 9 th April, 2006.
However, for the period from 2006 to 2009 accused, Informant and
their daughter moved at Informant's parent's place. Since the year
2009, they started staying separately. There is further no dispute
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
that on 2nd September, 2017 Informant and victim left house and
started residing with mother of Informant. FIR came to be lodged
on 25th November, 2017.
12. Informant in her evidence before the Trial Court claims that
since the time of marriage, there used to occur quarrels between
husband and wife and that he used to beat her as well as their
daughter. She claims that due to unbearable cruelty at the hands of
the husband, she left matrimonial home and started residing with
her mother. The Investigating Officer, in her evidence has accepted
that these used to occur, quarrels between Informant, mother of
the victim and accused, and the reason for the said quarrels were
household work and non-payment of expenses. This also indicates
that the relationship between the accused and Informant was not
cordial, and that she had grudge/grievance against him.
13. Informant also claims that the accused left his job and was
not interested working and that she was required to bear the
expenses of the family. She denied the suggestion made to her that
it was a mutual decision of husband and wife that she would work
and husband would take care of the house and daughter. Evidence
of the mother of the Informant i.e. PW 2, however, indicates
otherwise. She specifically states that as there was an issue of
taking care of victim, husband and wife decided that wife would
continue with job and husband would take care of the victim at
home. The evidence of the Informant on this point, therefore, does
not inspire confidence.
14. In so far as disclosure of the incidents by the victim which
have occurred with her on account of the acts committed by the
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
accused, it is claimed that on 24 th October, 2017, she saw victim
scared and silent and therefore, asked reason for the same. At this
point of time, she claims that the victim told her about the acts
committed by the accused during the period from the year 2013 to
2017, which are narrated in the FIR. On this issue, however, the
mother of Informant claims that it is prior to the lodging of the FIR
when the Informant was not at home victim disclosed her about
the incident occurred. In the cross-examination, she confirms the
fact that the said disclosure was made after 5 to 6 days from 2 nd
September, 2017. She further says that after victim told her about
the conduct of the accused for the first time, she did not
immediately call the Informant to inform about it as she did not
want to disturb her in her office. She, however, further claims that
she told to the Informant about the said disclosure made by the
victim after Informant returned home in the evening. At that time,
Informant confronted about the same to the victim. Informant,
however, in this regard denies that her mother told her anything
about the sexual assault and victim having disclosed the same to
her. The genesis of the information, therefore, becomes doubtful in
view of these contradictory statements made by the witnesses.
Ordinarily, this would not have affected the case of prosecution,
however, it assumes relevance in view of the previous disputes
between Informant and accused and lodging of report much after
they were separated.
15. Informant as well as victim claims that after 5 to 6 days of
Informant and victim started staying with Informant's mother or as
per the say of Informant herself the disclosure is made on 24 th
October, 2017. Admittedly the complaint was made to the
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
concerned police station in writing by the Informant, wherein
there is no reference to the most of the allegations made against
the accused in F.I.R. It would be necessary to reproduce the said
complaint which reads thus :-
"To,
The Senior Inspector of Police,
Santacruz Police Station,
Santacruz (West),
Mumbai 400056.
Dear Sir,
Re: Mental and Physical harassment by my husband
Mr. Paresh Merchant to me and my daughter viz
Mahika Merchant aged 11 years.
I the undersigned owner of Flat no.403, 4 th floor,
Wing 'B', Darshana Apartment, 198 Sarojini Road
Extn, Behind Nanavati Hospital, Vile Parle (West),
Mumbai-400056 do hereby respectfully say and
submit as under:
I say that my husband in my absence used to harass
my daughter mentally and physically. After giving
many warnings to him the situation became bad to
worse and since June 2017 he started giving threats
to my daughter that if she complains about his
irrational behavior towards her that he was showing
her the sexual intercourse between male and female.
My daughter also complained about him watching
Blue films on the laptop and mobile phone. Also at
home he was not wearing proper clothes (i.e. only
boxer shorts wherein one can see his private part). I
say that on 2nd September 2017 since morning he
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
used abusive words towards my daughter and me.
He also given threats to me and my daughter's life.
The said conduct of my husband has caused great
mental and physical tension to me and my daughter
and hence we were compelled to leave our own
house.
Please note that the above-mentioned Flat is in joint
name of Kaushal Merchant and Paresh Merchant and
I am 50% owner of the said immovable property.
There is no court order or matter pending or any
proceeding pending regarding issue of property in
any court of India.
My husband informed me that he has locked both
the doors using the second lock of which I do not
have the keys to open it and also threatened me not
to enter in the house. Hence he is refraining me by
not allowing me to enter the house. I apprehend that
he may do anything as my things are lying in the
house that loss cannot compensate in terms of
money.
Reservation in my own house without any order of
the court. He is taking advantage and enjoying all
the facilities alone. He may do some wrong things.
He may go to any extent to achieve his goals. This
being an illegal act totally on his risk do not hold
responsible as I am out of the house since 2nd
September 2017.
This is for your information, record and for further
action in case of need."
16. Now question arises as to why there is no mention about the
things disclosed by the victim to the Informant with regard to the
number of serious acts committed by accused to his daughter. In
the complaint in writing there is allegation that the accused had
irrational behaviour and was showing obscene films to the victim
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
and was not wearing proper clothes. The other allegations made in
the FIR are conspicuously absent in this complaint. Having regard
to the nature of allegations, it would be impossible for any mother
not to disclose the same in complaint, more particularly, when
husband and wife are already separated. In any case, there is no
explanation provided by Informant as to why those allegations do
not form part of said written complaint, though are referred
subsequently in F.I.R.
17. One can accept the contention of the learned counsel for the
Respondent No.2 that it would be difficult for any woman to lodge
complaint against her husband, however, once she leaves the house
of husband and thereafter, makes complaint to the police in
writing, there remains no reason for her not to disclose the other
allegations which were said to have been told to her by the victim
in respect of the acts done by the accused. Thus, there is reason to
believe that the allegations which do not find place in the
complaint dated 11th November, 2017 are nothing but an after
thought.
18. Evidence of the victim no doubt states about the acts
allegedly committed by accused to her, however, there are
numerous omissions and implications in her testimony as
compared to the previous statement. The omissions brought on
record by way of cross-examination of the victim and Informant
are duly proved through the Investigation Officer. She claims that
she disclosed the incident to her mother on 24 th October, 2017.
This evidence of the victim is contrary to the evidence of her
grandmother who claims that the incidents were disclosed to her
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
and not to the mother. In any case, even if the statement of the
witness is accepted about the disclosure of his acts on 24 th October,
2017, there appears no explanation for the Respondent for not
mentioning the same in the written complaint dated 11 th
November, 2017.
19. It would be also relevant to take note of the cross-
examination of the victim who in on uncertain terms admits that
her performance in the school till date is consistently good and she
never failed in any of the subjects till date. This statement of the
victim contradicts the evidence of her mother i.e. Informant who
claims that on account of the acts done by the accused, the
performance of the victim become poor and she failed in biology
subject. Apart from this, victim admits that accused used to assist
her in her school project and would help her in the studies, since
she was in second standard and that her mother would never took
her studies. Father also was helping her in all school competitions.
She also accepts to have given greeting cards disclosing her love
towards the father. Thus, the entire evidence of victim is more
suggestive of substance in the defence, rather than accusations
made against accused. The Court also cannot ignore the fact that
for four years there is no complaint and only after the separation
complaint is said to have been made. There is material
inconsistency as to whom the said discussion was made by her. The
victim is of tender age and therefore, could be easily prone to the
tutoring. The circumstances do not indicate that sole testimony of
victim is sufficient to connect accused without seeking
corroboration.
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
20. When victim claims that amongst other acts done by the
father, he used to insert his finger into her vagina. The medical
evidence, however, does not support the said allegation. Testimony
of Dr. Shetty, PW 4 indicates that there was no history of oral anal
intercourse or insertion of object into the private part/mouth. The
medical report Ex. 43 also does not support the allegation made by
the victim against the accused.
21. No doubt it would be difficult for any young girl to make a
complaint against her own father, however, at the same time, if the
surrounding circumstances as brought on record by way of
evidence indicate that it is a case of possible false implications, it
would be unsafe to rely upon testimony of the victim to convict the
accused, without seeking corroboration, which is absent herein this
case.
22. The evidence on record more than sufficiently demonstrates
that the Informant had grudge/ grievance against accused for
abusing and beating her and due to the unbearable cruelty at the
hands of the husband, she left the matrimonial home and went to
live with her mother. Similarly, she admits in the cross-examination
that in the month of October, November, 2017, her father had
placed an advertisement for selling the flat i.e. the matrimonial
house, and had also taken agent to show the flat. Irrespective of
the fact whether or not she could have sold the flat, since it was in
the joint name of Informant and accused, there is evidence to show
that there was an intention on the part of the Informant to sell the
flat pertinently, it is thereafter, the First Information Report came
to be lodged against the accused immediately.
nd
2 February, 2026.
47 APEAL 443-23-CR.DOC
23. In so far as the allegations against the accused of he showing
obscene videos to the victim is concerned, there is no recovery of
laptop indicating any obscene videos/photos therein. In fact there
is absolutely no evidence to indicate so.
24. Even in the proceedings under the POCSO Act, there would
be burden upon the prosecution to prove the guilt of the accused
beyond reasonable doubt. In the instance case the defence by
cross-examination of witnesses of the prosecution has brought on
record possible to false implication. Evidence of Informant as well
as victim does not inspire confidence and in absence of any
medical evidence to support the same, the impugned judgment and
order of victim cannot sustain.
25. The appeal, therefore, stands allowed.
26. Appellant stands acquitted in connection with Crime No.645
of 2017 registered with Santacruz Police Station for the offenses
punishable under Sections 6 and 12 of POCSO Act and Sections
323 and 506 of IPC.
27. He be released forthwith, if not required in any other case.
28. Fine amount, if paid, be refunded.
(R. M. JOSHI, J.)
{
nd
2 February, 2026.
