Shivpujansingh S/O Surajnath Bais vs State Of Mah. Thr. Pso Ps Dawniwada Tah. ...
2026 Latest Caselaw 1472 Bom

Bombay High Court

Shivpujansingh S/O Surajnath Bais vs State Of Mah. Thr. Pso Ps Dawniwada Tah. ... on 10 February, 2026

Author: Anil L. Pansare

Bench: Anil L. Pansare

                                1                             apeal 474.21.odt




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR.


CRIMINAL APPEAL NO. 474 OF 2021


Shivpujansingh s/o Surajnath Bais,
Age - About 52 years, Occupation - Service,
R/o Shastri Ward, Gondia, Tahsil & District
.Gondia
At Present detained at Central Prison, Nagpur.      ....    APPELLANT

             VERSUS

State of Maharashtra,
through P.S.O. Dawniwada, Police Station
Dawniwada, Tahsil & District Gondia.                ....    RESPONDENT

____________________________________________________________________

  Mr. A.S. Mardikar, Senior Counsel a/b. Mr. A.A. Sambaray, Counsel for the
                                 appellant,
            Mrs. R.V. Sharma, Addl.P.P. for the respondent/State.
____________________________________________________________________


         CORAM : ANIL L. PANSARE & NIVEDITA P. MEHTA, JJ.


DATE OF RESERVING THE JUDGMENT : 29-01-2026
DATE OF PRONOUNCING THE JUDGMENT : 10-02-2026


JUDGMENT :

(PER : NIVEDITA P. MEHTA, J.)

This appeal is directed against the judgment and order dated

20.09.2021 passed by the learned Additional Sessions Judge, (POCSO)

Gondia in Special POCSO Case No. 56 of 2014, whereby the appellant came

to be convicted for the offences punishable under Section 376(2)(n) of the

Indian Penal Code, 1860, (for short "IPC") and Section 5(a)(iv)(c)(l) read

with Section 6 of the Protection of Children from Sexual Offences Act, 2012 2 apeal 474.21.odt

(for short "POCSO Act"). The appellant was sentenced to suffer rigorous

imprisonment for twenty years and to pay a fine of ₹50,000/-, in default, to

suffer further rigorous imprisonment for one year.

2. The prosecution case in brief, as emerging from the oral report lodged

by the victim, PW 9-Varsha Shahare, is that she was residing with her parents

PW 14-Mamta Shahare and PW 15-Deveshwar Shahare and younger sister.

The appellant, Shivpujansingh Bais, who was serving as a Police Constable,

was acquainted with her father and, on account of such acquaintance, used

to frequently visit their house.

2.1. On 23-02-2014, as there was a marriage ceremony of the sister-in-law

of the appellant at Gondia, the victim, with the permission of her parents,

accompanied the appellant on his motorcycle. While proceeding towards

Gondia, the appellant diverted the motorcycle towards Bhanpur Canal Road

on the pretext of it being a shorter route. After proceeding for some distance,

the appellant stopped the motorcycle at a secluded spot and allegedly started

touching the victim inappropriately. When the victim attempted to resist and

raise alarm, the appellant threatened to kill her, forcibly removed her clothes,

and committed sexual intercourse with her.

2.2 It is further the prosecution case that on 14.03.2014, at about 9.30

p.m., while the victim, her father, and her younger sister were present in

their house, the appellant came there and took the victim's father away on 3 apeal 474.21.odt

some pretext. Thereafter, when the victim was proceeding towards the

washroom situated behind the house, the appellant allegedly called her,

caught hold of her hand, and forcibly took her, where he made her lie down,

removed her clothes, gagged her mouth when she attempted to raise alarm,

and again committed sexual intercourse, while reiterating the threats of

causing harm to her family. It is alleged that during the occurrence, the

victim's younger sister woke up and switched on the lights, whereupon the

appellant fled from the spot.

2.3 Owing to fear induced by the repeated threats, the victim did not

immediately disclose the said incidents. However, on 20.03.2014, she

narrated the entire episode to her mother, pursuant to which oral report was

lodged by the victim before Police Station, Dawniwada.

3. On the basis of the said report, Crime No. 19 of 2014 came to be

registered against the appellant for the offence punishable under Section

376(2)(n) of the IPC and Sections 4 and 6 of POCSO Act. During the course

of investigation, the Investigating Officer visited the spots of occurrence and

prepared the spot panchnamas. The victim was referred for medical

examination. Her statement, and also the statements of her mother and

younger sister, came to be recorded under Section 164 of the Code of

Criminal Procedure. The Birth Certificate of the victim was collected, which

disclosed that she was below eighteen years of age at the relevant time. The

motorcycle allegedly used in the commission of the offence was seized. The 4 apeal 474.21.odt

appellant was arrested on 06.07.2014 and was also referred for medical

examination. Statements of witnesses were recorded and, upon completion of

investigation, the charge-sheet came to be filed before the learned Judicial

Magistrate First Class, who committed the case to the Court of Sessions,

where it was registered as Special POCSO Case No. 56 of 2014.

4. The Charge (Exh.24) for the offences punishable under Section 376(2)

(n) of the IPC and Section 4 read with Section 6 of the POCSO Act came to

be framed against the appellant. The same was read over and explained to

him, to which he pleaded not guilty and claimed to be tried. The prosecution

examined 18 witnesses in support of its case, including the victim, her

parents, Medical Officers, panch witnesses, and the Investigating Officer.

Upon completion of the prosecution evidence, the statement of the appellant

under Section 313 of the Code of Criminal Procedure came to be recorded,

wherein he denied the allegations and claimed false implication.

5. After appreciation of the evidence on record, the learned trial Court

held that the testimony of the victim was cogent, consistent, and trustworthy,

and found due corroboration in the evidence of her mother, medical

evidence, and the surrounding circumstances. The learned trial Court

observed that the victim, being a minor, had no reason to falsely implicate

the appellant, who was a police constable and a close acquaintance of her

family. The learned trial Court found that the two incidents of sexual assault

dated 23.02.2014 and 14.03.2014 stood duly established, and that the 5 apeal 474.21.odt

defence of false implication on account of alleged monetary dispute was not

substantiated by any reliable evidence. The learned trial Court further

rejected the plea of alibi raised by the appellant, holding that the

documentary evidence produced by him was insufficient to establish his

presence on duty at the relevant time, particularly in the absence of

supporting oral evidence from superior officers. It was also observed that the

delay in lodging the report stood satisfactorily explained in view of the

threats extended by the appellant and the vulnerability of the victim. The

learned trial Court further recorded a finding that the victim was below

eighteen years of age on the dates of both the incidents, thereby attracting

the rigour of the provisions of the POCSO Act.

6. On cumulative appreciation, the learned trial Court held that the

prosecution had proved beyond reasonable doubt that the appellant had

committed aggravated penetrative sexual assault upon the victim on more

than one occasion and accordingly convicted him for the offences punishable

as stated above.

7. We have heard learned Senior Counsel Mr. Anil Mardikar assisted by

Mr. A.A. Sambaray for the appellant and Ms. Ritu Sharma, learned Additional

Public Prosecutor for the State.

8. Learned Senior Counsel for the appellant submits that the appellant

assailed the impugned judgment primarily on the grounds that the 6 apeal 474.21.odt

prosecution case is vitiated by material contradictions, omissions, and

inherent improbabilities, and that the testimony of the victim does not inspire

confidence, and could not be treated as a "sterling witness" sufficient to

sustain the conviction. Learned Senior Counsel contended that the delay in

lodging the FIR remains inadequately explained, thereby casting serious

doubt on the credibility of the prosecution case. It was further submitted that

material inconsistencies between the versions of the victim and her mother

regarding the circumstances in which the victim accompanied the appellant,

coupled with evidence suggesting prior monetary dispute between the

families, render the prosecution version doubtful and probabilise the defence

of false implication.

8.1 Learned Senior Counsel also urged that the defence of alibi stood

established through documentary evidence and the testimony of PW 10, and

that the learned trial Court erred in discarding the same and in impermissibly

shifting the burden of proof upon the appellant, contrary to settled principles

of criminal law. It was further contended that the prosecution failed to prove

the age of the victim beyond reasonable doubt, which being a foundational

requirement for application of the POCSO Act, rendered the presumption

under Section 29 inapplicable.

8.2 It was lastly submitted that the medical evidence does not lend

corroboration, and that reliance placed by the learned trial Court on previous

statements under Section 161 Cr.P.C. as substantive evidence has caused 7 apeal 474.21.odt

serious prejudice to the defence. On these grounds, the learned Senior

Counsel prays for the quashing of the impugned judgment.

9. Per contra, the learned Additional Public Prosecutor supported the

impugned judgment, submitting that the learned trial Court has properly

appreciated the oral, documentary, and medical evidence. It was contended

that the testimony of the victim is natural, consistent, and trustworthy, and

stands duly corroborated by the evidence of her mother, the surrounding

circumstances, and the medical evidence. It was submitted that the victim

had no motive to falsely implicate the appellant, who was a family

acquaintance.

9.1 Learned Additional Pubic Prosecutor further submitted that the delay

in lodging the FIR stands satisfactorily explained in view of the serious

threats extended by the appellant and the vulnerability of the victim, who

was a minor, and that in cases of sexual assault on children, such delay

should not be viewed with suspicion when adequately explained. It was

further submitted that the defence of alibi was rightly rejected, as the

appellant failed to examine material witnesses to establish his presence on

duty, and the documentary evidence relied upon by him was insufficient to

discharge the burden.

9.2 Learned Additional Public Prosecutor also contended that the age of

the victim stood duly proved, clearly establishing that she was below 8 apeal 474.21.odt

eighteen years on the date of the incidents, thereby attracting the rigour of

the POCSO Act and the presumption under Section 29. The learned

Additional Public Prosecutor urged that the prosecution has proved the case

beyond reasonable doubt and warrants dismissal of the appeal.

10. Before addressing the points for determination, it is necessary to

briefly appreciate the prosecution evidence on record to assess whether the

case has been proved beyond reasonable doubt and whether the findings of

the learned trial Court are justified. The evidence of the prosecution

witnesses, both ocular and medical, along with the documentary material

placed on record, therefore, requires to be examined in its proper perspective.

11. The panch witnesses to spot and seizure panchnamas (PW 1-

Chaganlal Patle, PW 2-Ravi Gajbhiye, PW 4-Santosh Bisen, PW 6-Fagulal

Lilhare, and PW7-Mahesh Baghele) have admitted their signatures on the

respective panchnamas, though some of them expressed lack of knowledge

regarding the contents or the manner in which the documents were prepared.

Their evidence reflects the procedural aspect of the investigation and the

preparation of panchnamas.

12. PW-3-Mohini Bopche, a colleague of the victim's mother, has deposed

about being informed by PW 14 regarding a dispute and later about the

alleged incident. She clarified that she had no personal knowledge of the

occurrence. PW-8-Lalitabai Neware, the cousin of the victim, has stated that

she had no knowledge of the incident.

9 apeal 474.21.odt

13. PW 9-Varsha Shahare, victim, deposed that she was acquainted with

the appellant, who was known to her family. She stated that on

23/24.02.2014 the appellant took her on his motorcycle towards Gondia on

the pretext of attending a family function, during which he allegedly stopped

on Bhanpur-Kohka Road and committed sexual assault. She further stated

that after the said incident she stayed at the appellant's house and was

brought back to her village the following day. PW 9 also narrated a second

incident alleged to have occurred on 14.03.2014 near her house when other

family members were away, which was interrupted upon the arrival of her

sister. She stated that due to fear and threats, she did not immediately

disclose the incidents and later lodged the report on 21.03.2014, which she

identified along with the FIR.

In cross-examination, PW 9 admitted that several facts stated by her in

Court, including the manner in which the incident occurred, the place of

occurrence, and subsequent movements, were not reflected in her police

statement. She also admitted that she continued attending school during the

intervening period and that a police station and other facilities were situated

close to her residence. These aspects emerged during cross-examination and

form part of the evidentiary record. Her testimony, though detailed, thus

requires cautious scrutiny in light of the unexplained delay, surrounding

circumstances, and material omissions.

14. PW 14-Mamta Shahare, mother of the victim, has deposed regarding

the victim's disclosure to her and the steps taken thereafter. PW 15- 10 apeal 474.21.odt

Deveshwar Shahare, father of the victim, deposed that he had no direct

knowledge of either incident and that he was informed only by his wife about

the alleged acts. His testimony is entirely hearsay and derivative.

15. PW 10-Khumansingh Parihar, an ASI, has produced duty records and

proved the medical referral of the appellant. PW 16, the Investigating Officer,

has spoken about the registration of FIR, spot panchnamas, seizures,

recording of statements and arrest of the appellant. Certain aspects of

investigation and omissions in statements have been brought on record in

cross-examination.

16. PW 17-Dr. Vibha Sakhare, the Medical Officer, conducted the medical

examination of the victim and noted an old healed rupture of the hymen,

absence of fresh injuries, and normal physical findings. She opined that

sexual intercourse had taken place and that the victim was capable of sexual

activity. In cross-examination, she admitted that the age of the victim was

recorded solely on the basis of police requisition, that the case history was

not mentioned, and that she could neither specify the timing of intercourse

nor attribute it to the appellant.

17. The points that arise for our determination are:

Sr. No.                          Points                             Findings

      (i)      Whether the prosecution has proved that         In the Affirmative.
               the victim was a minor at the time of the
               incidents?
                                    11                              apeal 474.21.odt



   (ii)     Whether the prosecution has proved that the   In the Affirmative.
            accused committed sexual assault/ rape upon
            the victim as alleged?

  (iii)     Whether the defence plea of alibi raised by    In the Negative.
            the appellant is proved and creates
            reasonable doubt in the prosecution case?

   (iv)     Whether any interference is called in the      In the Negative.
            impugned judgment?

   (v)      What order?                                   As per final order.



                                    REASONS

As to Point No. (i) :

18. The prosecution relies upon the Birth Certificate (Exh.89) and the

certified copy of Extract of the Birth Register (Exh.88) produced through PW

18, the Registrar of Births and Deaths, Gram Panchayat Davaniwada as well

as on the oral evidence of PW 14 (Mother) and PW 9 (Victim). The date of

birth recorded therein is 03.02.1998. The alleged incidents are of 23-02-2024

and 14.03.2014. Thus, the victim was below 18 years of age at the relevant

time.

19. The prosecution has examined PW 18, who has proved the entries

from the official register maintained in the ordinary course of official duties.

Merely because the entry was recorded on the basis of information supplied

by an informant, the same does not lose its evidentiary value. A Birth Register

maintained under statutory duty carries a presumption of correctness unless

convincingly rebutted. The said documentary evidence has not been 12 apeal 474.21.odt

impeached in cross-examination and the oral evidence of PW 9 and PW 14 is

consistent with the said documentary record.

20. The learned Senior Counsel for the appellant has questioned the proof

of age by relying upon P. Yuvaprakash v. State Rep. by Inspector, 2023 SCC

Online SC 846, contending that strict proof of age is a sine qua non under the

POCSO Act and that Exhibits 88 and 89 are doubtful due to variation in dates

and overwriting. We are not persuaded by this submission. Both documents

are traceable to the statutory Birth Register maintained by the Gram-

Panchayat and have been duly proved through PW 18, the Registrar. The

slight variation between the dates or the presence of minor overwriting does

not affect the core issue, since both dates pertain to the year 1998 and thus

under either date the victim was admittedly below eighteen years at the time

of occurrence in February-March 2014. No material is brought on record to

establish fabrication or manipulation of the public record. The contention

regarding early naming of the child is based on customary practice and

cannot override statutory entries maintained in official records. Moreover,

Section 94 of the Juvenile Justice (Care and Protection of Children) Act

accords primacy to birth certificates issued by local authorities, and even the

medical evidence broadly supports minority. The decisions relied upon by the

defence on cases where age itself was fundamentally uncertain or

contradicted by evidence, is not the situation here. Hence, the minority of the

victim stands satisfactorily proved.

13 apeal 474.21.odt

21. The Hon'ble Supreme Court in Jarnail Singh v. State of Haryana,

(2013) 7 SCC 263 has held that entries in the birth register are considered

primary and reliable proof of age. The relevant paragraphs of the said

judgment are reproduced as under-

22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:

"12. Procedure to be followed in determination of age.--(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, 14 apeal 474.21.odt

if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),

(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.

(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would 15 apeal 474.21.odt

conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion."

Similarly, in Mahadeo s/o Kerba Maske v. State of Maharashtra and

Another, (2013) 14 SCC 637, the same been reiterated that such statutory

records are reliable evidences to determine the age.

22. On the basis of unimpeached documentary evidence and judicially

accepted principles, it is held that the victim was a minor within the meaning

of Section 2(d) of the POCSO Act at the time of the offences. Hence, we hold

that the prosecution has established beyond reasonable doubt that the victim

was below eighteen years of age. Accordingly, Point No.(i) is answered in the

affirmative.

As to Point (ii):

23. The law is well settled that the testimony of a prosecutrix stands on a

higher pedestal and, if it inspires confidence, does not require corroboration 16 apeal 474.21.odt

as a matter of rule. In the present case, the evidence of the victim (PW 9) is

natural, cogent and consistent on material particulars, giving a clear account

of the two incidents dated 23.02.2014 and 14.03.2014. Despite cross-

examination, nothing has been elicited to show that her version is inherently

improbable or motivated. Her testimony finds assurance from the medical

evidence of PW 17, which notes an old ruptured healed hymen and confirms

that sexual intercourse had taken place, which is not inconsistent with her

allegations merely because no recent injuries were noticed. It is equally

settled that the evidence of a child victim, if found reliable, can by itself form

the basis of conviction and that minor contradictions or omissions do not

detract from the substratum of the prosecution case, particularly where delay

in disclosure stands reasonably explained by fear and threats. These

principles have been consistently reiterated by the Hon'ble Supreme Court in

State of Punjab v. Gurmit Singh and Others, (1996) 2 SCC 384 and

subsequent decisions. The relevant paragraph of the judgment is reproduced

as under-

21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader 17 apeal 474.21.odt

probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

24. The appellant has placed reliance on Nirmal Premkumar v. State

represented by Inspector of Police, 2024 All SCR (Cri) 714, to contend that

corroboration is necessary where the prosecutrix is not a "sterling witness."

The principle is not in dispute. However, its applicability depends on the

factual matrix. In Nirmal Premkumar, the testimony was found to suffer from

serious infirmities and lacked assurance from surrounding circumstances. In

the present case, the core version of the victim regarding the occurrence and

identity of the appellant has remained consistent. The alleged prior dispute

between the families is not shown to be of such gravity as to furnish a motive

for false implication in such a grave offence. The testimony of the victim

appears to be reliable, and the medical evidence does not contradict her

version. The said decision is therefore distinguishable on facts and does not

advance the appellant case.

25. The incidents occurred on 23.02.2014 and 14.03.2014, while

disclosure was made on 20.03.2014. The victim was a minor and the

appellant was a police constable known to the family, who had extended 18 apeal 474.21.odt

threats of dire consequences. Fear, trauma, and social stigma are valid

reasons for delayed reporting in cases of sexual assault. The Hon'ble Supreme

Court in State of Himachal Pradesh v. Sanjay Kumar Alias Sunny, (2017) 2

SCC 51, has held that delay in lodging FIR in sexual offences, particularly

involving minors, is not fatal when the delay is properly explained. The

relevant paragraphs of the said judgment are reproduced as under-

24. When the matter is examined in the aforesaid perspective, which in the opinion of this Court is the right perspective, reluctance on the part of the prosecutrix in not narrating the incident to anybody for a period of three years and not sharing the same event with her mother, is clearly understandable. We would like to extract the following passage from the judgment of this Court in Tulshidas Kanolkar v. State of Goa: (SCC p. 592, para 5) "5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle."

25. In Karnel Singh v. State of M.P., this Court observed that :

(SCC p. 522, para 7) "7. ... The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she 19 apeal 474.21.odt

will not do anything without informing her husband.

Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false."

26. Likewise, in State of Punjab v. Gurmit Singh, it was observed : (SCC p. 394, para 8) "8. ... The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."

26. In the present case, the explanation offered appears natural and

convincing and does not create any dent in the prosecution case. Thus, we

are of the opinion that the delay in lodging the FIR has been satisfactorily

explained by the prosecution.

27. The evidence of PW 14 (Mother) lends assurance to the version of the

victim insofar as the disclosure of the incident is concerned. The argument

that there are inconsistencies between the testimony of the victim and her

mother is without substance. The alleged omissions pertain to peripheral

aspects and do not go to the root of the prosecution case. It is trite law that

minor discrepancies are bound to occur due to passage of time and do not

corrode the core of the prosecution version. In State of Uttar Pradesh v.

Krishna Master and Others, (2010) 12 SCC 324, the Hon'ble Supreme Court

cautioned courts against adopting a hyper-technical approach while 20 apeal 474.21.odt

appreciating evidence in serious offences like rape. The relevant paragraphs

of the said judgment are produced herein below -

15. ...... Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

16. ....... it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. ........

17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. .........

28. The appellant has also relied on Ravi Anandrao Gurpude v. State of

Maharashtra, 2016 SCC Online Bom. 16146 to contend that delay in

disclosure and the conduct of the victim render the prosecution case

doubtful. The proposition that delay and conduct are relevant factors is

unexceptionable; however, their effect depends on the factual context of each

case. In the present matter, the delay and the victim's conduct have already

been examined and found to be satisfactorily explained in the light of the

surrounding circumstances. The factual premise in Ravi Anandrao Gurpude 21 apeal 474.21.odt

was materially different, and the said decision therefore does not advance the

appellant's case.

29. Once the prosecution establishes the basic or foundational facts

constituting the offence under the POCSO Act, the statutory presumption

under Section 29 comes into operation. Section 29 mandates that where a

person is prosecuted for an offence under POCSO Act, the Special Court shall

presume that such person has committed the offence, unless the contrary is

proved.

30. It is, however, well settled that this presumption is not automatic upon

mere accusation. The prosecution must first establish the foundational facts,

namely the age of the victim and the occurrence of acts falling within the

statutory definition of penetrative sexual assault or aggravated penetrative

sexual assault.

31. A three-Judge Bench of the Hon'ble Supreme Court in Sambhubhai

Raisangbhai Padhiyar v. State of Gujarat, (2025) 2 SCC 399, has held that

Section 29 of the POCSO Act comes into play once the foundational facts are

established. It holds as follows: -

"35. It will be seen that presumption under Section 29 is available where the foundational facts exist for commission of offence under Section 5 of the Pocso Act. Section 5 of the Pocso Act deals with aggravated penetrative sexual assault and Section 6 speaks of punishment for aggravated penetrative sexual assault. Section 3 of the Pocso Act defines what penetrative 22 apeal 474.21.odt

sexual assault is. The relevant sections are extracted hereinbelow:

"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if--

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or * * *

5. Aggravated penetrative sexual assault.--(a)-(h)***

(i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or***

(m) whoever commits penetrative sexual assault on a child below twelve years; or

6. Punishment for aggravated penetrative sexual assault.

--(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."

32. In the present case, as discussed above, the prosecution has led

evidence to establish that the victim was below eighteen years of age at the

relevant time and that she was subjected to penetrative sexual assault

attributable to the appellant. These facts are sufficient to trigger the statutory

presumption.

33. The appellant has not led any cogent evidence to probabilise his

innocence or to rebut the presumption. The plea of alibi and the suggestions 23 apeal 474.21.odt

of false implication, for the reasons already recorded, do not discharge the

burden cast upon him under Section 29 of the POCSO Act.

34. Accordingly, on a cumulative appreciation of the evidence, we are

satisfied that the prosecution has proved beyond reasonable doubt that the

appellant committed penetrative sexual assault upon the victim as alleged.

Hence, Point No. (ii) is answered in the affirmative.

As to Point No. (iii) :

35. The accused has raised a plea of alibi contending that on the dates of

the alleged incidents he was on official duty at Davaniwada Police Station.

The defence relies primarily upon the testimony of PW 10 (ASI Khumansingh

Parihar) and extracts of the duty register.

36. It is settled law that a plea of alibi is not an exception under the Penal

Code but a rule of evidence under Section 11 of the Evidence Act. The burden

to establish such a plea rest on the accused. In Binay Kumar Singh v. State of

Bihar (1997) 1 SCC 283, the Hon'ble Supreme Court has held that an alibi

must be proved with such certainty as to completely exclude the possibility of

the accused's presence at the place of occurrence. A mere preponderance of

probability is not sufficient. The relevant paragraphs of the said judgment are

as under-

22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in 24 apeal 474.21.odt

issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."

23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of U.P.; State of Maharashtra v. Narsingrao Gangaram Pimple."

37. In this context, it is necessary to note that the learned trial Judge has

undertaken a careful scrutiny of the plea of alibi with reference to the duty

registers and the testimony of PW 10. The learned trial Court has recorded

detailed reasons while rejecting the said plea. Since the reasoning in our 25 apeal 474.21.odt

opinion reflects a proper appreciation of the evidence and the correct legal

position, it would be apposite to reproduce the relevant observations, which

read thus :

"23. Now adverting to the second line of defence taken by accused. According to him, on 23/2/2014, as well as on 14/3/2014 which are allegedly the dates of incidents, he was on duty. In this regard, accused did not examine himself as defence witness and he also did not give oral evidence of any other witness. He is totally relying upon the documents submitted by him. He has filed xerox copy of monthly muster roll to show that he was present on duty on these two dates. He has also placed on record xerox copy of extract of duty book titled as "Diwas Ganana"

and "Ratra Ganana", so also xerox copy of extract of Station Diary, xerox copy of extract of register of guard duty to show his presence in the Police Station or on guard duty. Some of the copies being illegible the original registers were called from the Police Station and were perused by me. Prima facie, it appears that there are no signatures on the monthly muster roll. If the extract of duty book tiled as "Diwas Ganana" is carefully and cautiously gone through, it reveals that in the morning from 9.00 a.m. to 10.00 a.m attendance was recorded in the Police Station and distribution of duties was done. It reveals that accused was present at the time of attendance. It is further shown in this document that accused was present on duty from 8.00 a.m. to 2.00 p.m. as assistant of Station Diary In-charge and from 2.00 pm. to 8.00 p.m. he had off period. In the register there is a note that from 8.00 p.m. on that day to 8.00 a.m. on the next day morning i.e. 24/2/2014 accused was on duty as security guard in Police Station alongwith two other guards and Station Diary In-charge was their superior Officer. As per register on that day ASI Parihar, B.No. 1245 was Station Diary In- charge for that period. As per this document, accused was on duty from 8.00 p.m. to 10.00 pm. for two hours at night and again from 2.00 a.m. of 24/2/2014 to 4.00 a.m. of 24/2/2014. The victim has deposed that she went with accused on his motorcycle at about 7.30 p.m. According to documents, accused was shown to be on night duty from 8.00 p.m. to 10.00 p.m. on that day. It may be argued that as accused was on duty the story of victim that she was with him at 7.30 p.m. is not probable. In this respect, it should be firstly kept in mind that the incident is of 2014 and we cannot accept that the victim who was a child aged 16 years at that time and must have been shocked by the incident might have noticed the exact time when she left Gondia and she will remember the exact time after a period of seven years. In my opinion, mere entry in the register that accused was present at the time of attendance in the morning and he is shown to be present from 8.00 p.m. to 26 apeal 474.21.odt

10.00 p.m. on that day is not sufficient to disbelieve the child. No doubt, accused has produced the register bearing his signature while taking over charge at 8.00 p.m. and handing over charge at 10.00 p.m. However, accused should have produced evidence to show that during this period of two hours he was present personally in the Police Station. If the entries in the register show that at 10.00 p.m. WPC Gajbhiye, B.No. 1478 received charge of guard duty from accused, she was the best possible witness, who could have deposed that from 8.00 p.m. to 10.00 p.m. on that day accused was very much present on duty. However, accused did not examine WPC Gajbhiye. Similarly, the register shows that from 2.00 a.m. to 4.00 a.m. of 24/2/2014 accused was again on guard duty and at 4.00 a.m. he again handed over charge to WPC Gajbhiye. In spite of this fact, WPC Gajbhiye was not examined by defence. The most material witness, who could have established the presence of accused in the Police Station during the said period was ASI Parihar under whom accused was working on that day. However, this material witness who could have established the defence of accused beyond doubt was not examined by prosecution. Therefore, such material evidence though available to accused was not produced by him, permitting us to draw adverse inference against him.

24. As regards the incident dated 14/3/2014, the duty register shows that accused was present at the time of attendance and distribution of duty in the morning from 9.00 a.m. to 10.00 a.m. The incident of this day allegedly took place approximately at 9.30 p.m. The duty register of 14/3/2014 shows that accused was deputed for duty in Arjuni Bit for service of summonses and warrants under Head Constable Maraskolhe, B.No. 258, who was In-charge of Arjuni Bit. However, this document does not show that accused was present for service of summonses and warrants in Arjuni Bit. There is no proof that accused did his duty. Even his superior Head Constable Maraskolhe with whom he was on duty was not examined. In case this witness would have been examined, it would have been proved that accused was on duty at Arjuni Bit on 14/3/2014. Moreover, from the register we are unable to see during which period accused was posted for duty at Arjuni Bit. Therefore, there is no evidence to show that on 14/3/2014 after 9.30 p.m. accused was on duty at Arjuni Bit as alleged by him. Accused could have easily proved his presence in Police Station and in Arjuni Bit on the dates of incidents by examining his superior ASI Parihar or WPC Gajbhiye to whom charge was handed over by him or Head Constable Maraskolhe under whom he was on duty at Arjuni Bit on 14/3/2014. Though such ocular evidence was available to him, it was not adduced by accused and from this adverse inference has to be drawn that accused is suppressing some material facts.

27 apeal 474.21.odt

25. Apart from the above facts, it must also be considered that the prosecutrix did not immediately lodge the report as she was threatened by accused and the report was lodged after one month. During this period the accused was working in the same Police Station and therefore he had access to the duty register and it was possible for him to tamper with evidence. This is one more reason why defence of alibi cannot be believed merely on the basis of documents submitted by accused. I would like to reiterate that even though there were witnesses who could have deposed that accused was present on duty at the time when victim alleged that incident occurred, but they were not examined. Holding back such material witnesses create grave doubt about the defence of alibi taken by accused.

26. Even if for the sake of argument, it is taken that accused was present on guard duty on 23/2/2014 in the second shift from 2.00 a.m. to 4.00 a.m., the Police statement of the victim mentioned that after accused committed forcible intercourse with her, accused took her to his house at Gondia, left her there and went out. In this regard, judicial notice can be taken of the fact that the distance is between Davaniwada and Gondia approximately 20 Kilometers and this distance can be covered by motorcycle in 20 minutes to half an hour. Therefore, it was not impossible for accused to return to duty in second shift after committing the heinous act and after dropping the child to his house at Gondia. In any case, there is no oral evidence regarding the fact that at the time of both these incidents accused was on duty with his superior. Therefore, accused has not satisfactorily established the defence of alibi raised by him."

38. In the present case, PW 10 has stated that on 23.02.2014 the appellant

was on night duty as a security guard from 8.00 p.m. to 8.00 a.m., and that a

security guard is ordinarily not expected to leave the police station during

duty hours. The duty register extracts (Exh. 55 onwards) reflect such

assignment. However, these entries only indicate scheduled duty and do not

conclusively establish the continuous physical presence of the accused within

the police station premises for the entire duration. No evidence is

forthcoming regarding the system of supervision, biometric attendance, or

continuous monitoring. No superior officer responsible for maintaining or 28 apeal 474.21.odt

verifying duty deployment was examined to affirm that the appellant

remained present without any interval.

39. It is also material that the place of occurrence is not shown to be at

such a distance as would render movement impossible. The defence has not

led evidence to demonstrate that the appellant was under such restraint or

surveillance as would make his absence from the police station infeasible.

40. As regards the second incident dated 14.03.2014, PW 10 has deposed

that the appellant had left the police station in the morning for official work

and returned at about 10.35 p.m., and that he met him at about 11.00 p.m.

The alleged time of occurrence is around 9.30 p.m. While this circumstance

lends some support to the defence version, it still does not establish with

certainty the precise whereabouts of the appellant at the critical time, nor

does it render his presence at the scene wholly impossible.

41. It must also be borne in mind that the prosecution has adduced direct

evidence through the testimony of the prosecutrix placing the appellant at the

scene. As held in Shaikh Sattar v. State of Maharashtra, (2010) 8 SCC 430 ,

when the prosecution leads credible ocular evidence of presence, the plea of

alibi must be tested on a strict standard and cannot prevail unless it

completely rules out such presence. The relevant paragraphs of the said

judgment is reproduced below :

29 apeal 474.21.odt

35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana as follows: (SCC p. 27, para 20) "20. ... This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact."

42. On an overall evaluation, we observe that the appellant's plea of alibi

was predicated upon claimed duty attendance at the police station, supported

by portions of duty registers tendered through PW 10 (ASI). However, alibi is

a defence fact which the accused must establish with certainty, and mere

presence on a duty roster is not a conclusive proof of physical impossibility of

committing the offence. The prosecutrix's evidence places the appellant with

her at the relevant time and place, and the evidence suggests the appellant

left police station premises at times that do not preclude his presence at the

scene of the alleged offences. As per settled jurisprudence, in the absence of

clear and indisputable evidence that the accused could not have committed

the offence, alibi cannot prevail over direct testimony of the victim, especially

when corroborated by other material. The material relied upon by the

defence creates a circumstance to be considered, but it falls short of the strict

proof required to sustain a plea of alibi. At the highest, it introduces a 30 apeal 474.21.odt

competing probability but it does not exclude the possibility of the appellant's

presence at the relevant time and place. Therefore, we are of the considered

opinion that the appellant's plea of alibi cannot be said to have been proved

to the degree required in law. Accordingly, the Point No. (iii) is answered in

the negative.

As to Point No. (iv) :

43. It is settled that though an appellate Court is obliged to re-appreciate

the evidence in an appeal against conviction, interference is warranted only

where the findings of the trial court are perverse, manifestly erroneous, or

result in miscarriage of justice. As held in Chandrappa v. State of Karnataka

(2007) 4 SCC 415, where the view taken by the trial Court is a plausible one

based on the evidence, it ought not to be disturbed merely because another

view is possible.

44. In the present case, the learned trial Judge has evaluated the

testimony of the prosecutrix in the backdrop of medical and surrounding

circumstances and has assigned cogent reasons while dealing with delay,

alleged contradictions, false implication and alibi. The plea of prior dispute

remains a bare suggestion without substantive proof. It is also well settled

that hostility of panch or seizure witnesses does not corrode the prosecution

case when the core evidence is otherwise reliable, the evidence of hostile

witnesses need not be rejected in toto and reliance can be placed on the

credible part. In the present matter, the case rests primarily on the testimony

31 apeal 474.21.odt

of the victim, and panchnamas or seizures are only corroborative. Their

weakness does not demolish the substratum of the prosecution case, nor do

the omissions pointed out amount to material contradictions affecting the

core allegation. Upon independent reassessment, we find that the

appreciation of evidence by the learned trial Court is neither perverse nor

contrary to law and that the prosecution has proved the guilt of the appellant

beyond reasonable doubt. The sentence imposed is commensurate with the

gravity of the offence. No interference is, therefore, required in the impugned

judgment. Accordingly, Point No. (iv) is answered in the Negative.

As to Point No. (v) :

45. In view of the aforesaid discussion and the evidence on record, both

documentary and oral, there is no merit in the appeal. Hence, we proceed to

pass the following order.

ORDER

(i) Criminal Appeal stands dismissed.

(ii) The judgment and order dated 20.09.2021 passed by the learned Additional Sessions Judge, (POCSO) Gondia in Special POCSO Case No. 56 of 2014, is hereby confirmed.

(iii) The appellant shall continue to undergo the sentence imposed upon him.

                                        (Nivedita P. Mehta, J.)                (Anil L. Pansare, J.)
           sknair
Signed by: Mr. S.K. NAIR
Designation: PS To Honourable Judge
Date: 10/02/2026 17:35:48