Dipak @ Pinuda S/O. Ramkrushna Parve vs State Of Mah. Thr. Pso, Ps Balapur, Tq. ...
2026 Latest Caselaw 1830 Bom

Bombay High Court

Dipak @ Pinuda S/O. Ramkrushna Parve vs State Of Mah. Thr. Pso, Ps Balapur, Tq. ... on 18 February, 2026

2026:BHC-NAG:2938




                                                  1/18            5-cri.appeal 579-23


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH : NAGPUR

                             CRIMINAL APPEAL NO.579/2023

              Dipak @ Piruda Ramkrushna Parwe
              aged about 24 years, Occu. Labour
              R/o Chincholi Ganu Tq. Balapur, Dist.
              Akola                                 ..        Appellant
                     - Versus -
              1. State of Maharashtra,
                 through PSO, P.S. Balapur, Tq. Balapur
                 Distt. Akola.

              2.     X.Y.Z.
                    Crime No.441 of 2018
                    P.S. Balapur, Tq. Balapur,
                    District : Akola.                    ..   Respondents


                                   -----------------
              Ms. Ratna Singh, Advocate for the Appellant.
              Ms.Sneha Dhote, A.P.P. for Respondent No.1/State.
              Ms.Mohini Sharma, Advocate (appointed) for Respondent
              No.2.
                                   ----------------
              CORAM: NEERAJ P. DHOTE, J.
              DATE : 18/02/2026

               ORAL JUDGMENT:-

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

Criminal Procedure (henceforth referred to as "Cr.P.C." as short) 2/18 5-cri.appeal 579-23

against the judgment and order dated 20/11/2021 passed by the

learned Additional Sessions Judge, Akola (Special Court) in Special

Case No.150/2018, convicting and sentencing the Appellant as

follows :-

[1] Accused viz. Dipak @ Pinuda Ramkrushna Parve, is

convicted under Section 235(2) of the Cr.P.C. for the offence

punishable under section 376 (2)(i) and 506 of Indian Penal

Code, 1860 (IPC) and for the offence under section 3

punishable under section 4 and under section 5(m) punishable

u/sec 6 of The Protection of Children from Sexual Offences Act,

2012 (POCSO Act).

[2] In view of section 42 of the POCSO Act, as the

punishment for the offence u/sec. 5 punishable u/sec. 6 of the

POCSO Act is the major offence in respect of the offence u/sec.

3 punishable u/sec.4 of POCSO Act whereas the punishment for

offence u/sec.5 punishable u/sec.6 of POCSO Act is higher in

degree than the offence punishable u/sec. 376 (2)(i) of IPC, the

accused is punished accordingly u/sec. 6 of POCSO Act to suffer

Rigorous Imprisonment for 20 (Twenty) years and shall also be 3/18 5-cri.appeal 579-23

liable to pay fine of Rs.10,000/- (Rs. Ten thousand only). I/d to

suffer Simple Imprisonment for three months.

[3] For the offence punishable u/sec. 506 of IPC the

accused shall suffer Rigorous imprisonment for 7 years and

shall pay fine of Rs.10,000/-(Rs.Ten thousand only) I/d to

suffer Simple Imprisonment for three months.

[4] Bail bonds of accused, if any, stands cancelled and

surety, if any, stands forfeited.

[5] The accused shall be entitled for set off u/sec. 428 of

Cr.P.C. against the substantive sentence for the period

undergone by him in detention in this prosecution as he is in

custody since 02.10.2018 till this date.

[6] ........

[7] ........

[8] ........

[9] ........

[10]........

2) The prosecution's case as referred in the impugned

judgment, is reproduced below : -

The Victim is a girl of about 7 years of age. The complainant is mother of the Victim. The complainant was residing with her family consisting of her husband, daughter and son and used to work as agricultural labour, whereas her husband was working in a tailoring 4/18 5-cri.appeal 579-23

shop in the village. On 02.10.2018 the complainant and her husband went for their work and both the children were at home with their grandparents. She returned back to home at about 6.00 p.m. The Victim came running to her and sat in her lap. On inquiry by the mother, the Victim narrated about the incidence. The Victim disclosed to the mother that, "Pinuda" from the village had called her to his home and asked her to bring Ghota for him. That she brought Ghota and handed over it to him and was proceeding to attend natures call, however, he again called her in his house for bringing Ghota and when she went in his house, he removed her clothes and inserted his urinal place into her urinal place. The Victim narrated further that, she had severe pain thereby and she started shouting but said Pinuda inserted bowl of clothes in her mouth and caught her neck with force. That, by the reason of his act, bleeding started from her urinal place and she was crying. He threatened to her that, he will kill her if she cries. He leaved her and said to her that, she should not disclose it to anyone at home. Therefore, she returned back to home with fear and kept on sleeping without disclosure to anyone.

On such disclosure by the Victim to her mother complainant, she informed it to her husband and then made the police report on the same day. As offence vide C.R.No.441/2018 was registered against the accused at Balapur police station for offence punishable under sections 376, 506 of the I.P.C. and u/sec.3 punishable 5/18 5-cri.appeal 579-23

u/s.4 and Sec.5 punishable u/s. 6 of the Protection of Children from Sexual Offences Act on the same day.

3) On completion of investigation, Appellant came to be

charge-sheeted. The learned Trial Court framed Charge against the

Appellant for the offence punishable under Sections 376, 506 of

Indian Penal Code (for short "IPC") and for the offence punishable

under Sections 4 and 6 of the Protection of Children from Sexual

Offences Act, 2012 (for short "POCSO Act") below Exh.02. The

Appellant pleaded not guilty and claimed to be tried. To prove the

Charge, the prosecution examined in all seven(7) witnesses. The

description of the witnesses is clear from para 5 of the impugned

judgment which is reproduced below :-

"5. Prosecution has examined 7 witnesses in support of its case. PW1 is the complainant/Victim's mother at Ex.21. The Victim is examined as PW6 at Ex.48. PW2 Mohd. Hafiz Mohd. Umar at Ex.25 is a panch witness. PW3 Dr. Chaitanya Shriram Kulkarni at Ex.28 is the Casualty Medical Officer who has examined the Victim whereas PW4 Dr. Vivek Karale at Ex.32 is the Gynecologist who has conducted the medical examination of the Victim as a Victim of sexual assault. PW5 Dr. Mohd. Aquib Naved at Ex.41 has examined the accused. PW7 PSI Pankaj Kakade at Ex.51 is the Investigating officer".

4) After the prosecution closed its evidence, statement of

the Appellant came to be recorded under section 313 (1) (b) of the

Code of Criminal Procedure (for short "Cr. P.C.). The Appellant 6/18 5-cri.appeal 579-23

claimed false implication and examined two(2) defence witnesses.

After hearing both the sides, the learned Trial Court appreciating the

evidence available on record passed the impugned judgment and

order.

5) Heard learned Advocate for the Appellant, learned APP

for the Respondent No.1 and learned Advocate for the Respondent

No.2 Victim. Scrutinized the evidence on record.

6) It is submitted by the learned Advocate for the Appellant

that, though the age of the Victim was not disputed the evidence on

record falls short of establishing the Charge. She submitted that,

there are discrepancies in the testimony of the Victim and her

mother, who lodged the report. She further submits that, the

punishment imposed by the learned Trial Court is not in consonance

with the law as punishment on the date of offence can be imposed

and not the punishment which is enhanced by way of amendment

after the offence. She places reliance on the decision of the Hon'ble

Supreme Court in the case of Satauram Mandavi Vs. The State of

Chhattisgarh and another in Criminal Appeal No. (Blank) of 2025

(arising out of SLP (CRL) No.13834 of 2024, dated 25/07/2025 on

the point of sentence. She submitted that, the Appeal be allowed.

                                      7/18             5-cri.appeal 579-23


7)          It is submitted by the learned APP that, from the

evidence on record it is clear that, the defence never disputed that,

the Victim was the child. The child used to call the Appellant by

saying "Dada". The Victim's evidence clearly shows that, the Charge

framed against the Appellant was established. To support the

Victim's testimony there was medical evidence on record, which

strengthens the case of the prosecution. The report from the

Chemical Analyzer also supports the Victim's version. Nothing has

come in the cross-examination so as to create any dent in the

prosecution's case. The learned Trial Court has appropriately

appreciated the evidence on record and appropriately convicted and

punished the Appellant and no interference is called for in the

Appeal. The Appeal be dismissed.

8) It is submitted by the learned Advocate for the Victim

that, she adopts the arguments made by the learned APP. She further

submitted that, the learned Trial Court has rightly passed the

impugned judgment and order and the Appeal be dismissed.

9) When the Charge is for the penal sections of the POCSO,

it becomes necessary for the prosecution to establish that, at the

time of Crime, the Victim was a child as defined under Section 2 (d)

of the POCSO, i.e. below 18 years of age. The Victim's mother was 8/18 5-cri.appeal 579-23

examined as PW-1. She is the biological mother of the Victim. She

deposed the date of birth of the Victim as 04/05/2012. In her cross-

examination, there is no challenge to the said date of birth of the

Victim. It is clear from the evidence on record that, the Appellant

had not disputed the date of birth of the Victim. Nothing has come

on record to show that, the date of birth of the Victim was different

than the date of date birth deposed by the Victim's mother. Even in

the Appeal, it is submitted by the learned Advocate for the Appellant

that, there is no dispute that, at the time of incident, the Victim was

the child. In this view of the matter, answering of point no.1, as to

whether the Victim was minor, in the affirmative by the learned Trial

Court, cannot be faulted.

10) The Victim is examined by the prosecution as witness

No.6. The notes by the learned Trial Court before recording the

Victim's testimony show that, the learned Trial Court asked

preliminary questions to the Victim, which she answered and the

learned Trial Court found that, the Victim knew the sanctity of oath

and therefore, administered oath and recorded her testimony. Her

testimony shows that, she knew the Appellant as he was residing

next to her house. The Victim had gone to the Appellant's house for

watching television. Appellant asked her to get the Ghota (mixture 9/18 5-cri.appeal 579-23

with tobacco) and accordingly, she went and brought the same. The

Appellant called the Victim for giving money and at that time, the

Appellant was alone in his house. He asked the Victim to remove her

clothes. The Victim denied. The Appellant slapped her on the cheek

and back. The Appellant bite on her cheek. The Appellant removed

her clothes. Appellant inserted his finger in her vagina. The Victim

experienced pain. The Appellant put his penis in Victim's mouth. The

Victim shouted. The Appellant beat her. The Appellant put the

handkerchief in her mouth. The Appellant threatened the Victim not

to disclose the incident to anyone or he will kill her. The Victim

returned home and informed the incident to her mother. One lady

police came to the Victim's house. The Victim narrated the incident

to her. The identification of the Appellant as the accused was not in

dispute as seen form the note made by the learned Trial Court at the

end of the examination-in-chief of the Victim. Though the Victim was

cross-examined, nothing has come so as to create any dent in her

examination-in-chief. She denied all the suggestions.

11) The Victim's mother is examined as PW 1. Her evidence

shows that, on the date of the incident i.e. 2 nd October, 2018, when

she returned home in the evening, she noticed Victim was sleeping

on the cot. On seeing her, the Victim came to her and told that, her 10/18 5-cri.appeal 579-23

stomach was paining. The Victim informed her that, she wanted to

answer the nature's call. The Victim refused to go to Doctor. When

again the mother inquired with the Victim, she disclosed the incident

to her. The mother noticed the mark of violence on the person of the

Victim. The mother deposed in her examination-in-chief that, she

had stated before the police that, the Appellant had inserted his

finger in the vagina of the Victim. However, the police wrote that,

the Appellant inserted his private part in the vagina of the Victim.

She further deposed that, when she objected for the said writing, she

was told by the police that, it was one and the same thing and

nothing would happen. She lodged the report below Exh.22. Even in

the cross-examination of this witness, nothing has come so as to

discard her testimony. Her evidence goes to show that, no sooner she

learnt about the incident from the Victim, she lodged the report with

the concerned Police Station against the Appellant.

12) The prosecution examined the Medical Officers, who

examined the Victim as PW 3 - Dr. Chaitanya Shriram Kulkarni and

PW 4 - Vivek Manohar Karale. The evidence of PW 3- Dr. Chaitanya

shows that, in pursuance to the requisition received from the Police

Station Balapur, he examined the Victim with the team of Dr.

Bhushan Rathod, Dr. Karale and Dr.Vidya Tadrup. On clinical 11/18 5-cri.appeal 579-23

examination of the Victim, he noticed the following injuries on the

Victim:-

1. 4 abrasions (nail scratch), reddish of sizes 0.5. x 0.1 cm. each located over right side of neck in anterior triangle, below sub-mandibular area one below each other.

2. Linear abrasion over right side of neck in posterior triangle 4 cm. below right angle of mandible 7 cm. below right mastoid process, reddish.

3. Abrasion (nail scratch) present over left angle of mandible of size 1 cm. x 0.1. cm. red.

4. 3 Abrasion (nail scratch) present over left side of neck in posterior triangle each of size 1 cm. x 0.1 cm. red upper most is 6 cm. lateral to mid-line and 4 cm. below angle of mandible, middle is located 7 cm. lateral to mid-

line and 5 cm. below angle of mandible, lower is located 5 cm. lateral to mid-line and 5 cm. below angle of mandible.

5. Abrasion (nail scratch), reddish over left side of neck of size 1 cm. x 0.1 cm., 4 cm. lateral to suprasternol notch 1 cm. above mid-curricular line.

6. Abrasion red, 2.5 cm. x 0.5 cm. present over left side of neck located 2 cm. below angle of mandible and 4 cm. lateral to mid-line.

7. Red abrasion over right side of chest of size 3 cm. x 2 cm. present over above nipple.

8. 2 nail scratch abrasion of sizes 0.5 cm. x 0.5 cm. each present over left chest side (pericardium) above nipple.

9. Contusion over lower lip, right half, tender, 1X 1 cm.red.

10. Contusion under surface of lower lip, left half, tender 1 X 0.5 cm.,red.

                                      12/18             5-cri.appeal 579-23




13)         Evidence of PW 3 - Dr. Chaitanya shows that, the above

injuries were fresh and caused within 24 hours of the examination

and nail scratch abrasion were caused by hard and rough object. The

medical report is brought on record at Exh.30. The medical report

corroborates the testimony of this Medical Officer. On perusal of the

cross-examination shows that, there is nothing to create any dent in

the evidence of this witness.

14) The evidence of P.W. 4 - Dr. Vivek Karale shows that, on

02/10/2018 the Victim was referred for medical examination. He

examined the Victim, and he found that there was hymeneal tear at

06.00 o'clock position around 1 x 1 cm. extending into the

fourchette. The margins were irregular and reddish in colour. There

were blood infiltrated. There were abrasion of 0.5. x 0.5 cm. in right

labia minora, which were reddish in colour. His evidence shows that,

he came to the conclusion that, there were signs suggestive of recent

forceful vaginal penetration, consistent with the history of digital

penetration. There were signs of recent use of physical force over the

body of the Victim in the form of multiple injuries, which were

consistent with history given by the Victim. He gave his findings and

the medical report at Exh.30 is brought on record, which 13/18 5-cri.appeal 579-23

corroborates his testimony. His evidence shows that, the Victim was

admitted in the hospital on 03/10/2018 till 8/10/2018. Even in the

cross-examination of this witness, nothing material has come which

would create any dent in his testimony.

15) The other evidence is that, of PW-2 - Mohd. Hafiz

Mohd. Umar, who was the panch witness for spot panchnama of

PW-5 Dr. Mohd. Akib Naved, who examined the Appellant and found

the accused is capable of performing sexual intercourse, of PW-7 -

Pankaj Dnyaneshwar Kakade, who was the Investigating Officer. The

panchanamas, medical report of the Appellant and the CA reports

are brought on record in the evidence of these witnesses.

16) The above evidence of the Victim and the medical

evidence are sufficient to prove that, the Victim was subjected to

aggravated penetrative sexual assault. Evidence of the Victim is

corroborated by the medical evidence. There is nothing to show or

interfere that, the evidence of the Victim was the result of tutoring.

Except denial, there is no defence of the Appellant. There is

immediate lodging of report with the concerned Police Station. In

defence, the Appellant examined two(2) defence witnesses. The

defence witnesses deposed that, the Appellant used to behave like a

mentally sick person. However, no medical papers to show that, the 14/18 5-cri.appeal 579-23

Appellant was suffering from any mental illness are brought on

record by the Appellant. Even in the statement recorded under

Section 313 of the Code of Criminal Procedure of the Appellant, he

has not stated that, he was suffering from any mental illness. To the

question No.52, he stated that, due to accident in the year 2017,

sometimes he was unable to understand as to what he was doing.

However, no medical papers to support the said contention are

brought on record. Thus, the Appellant's version that, he was

suffering from mental illness is unacceptable and appears after

thought. Considering the evidence led by the prosecution, the

essential ingredients for the offence punishable under Sections 376,

506 of IPC, Section 4 and 6 of the POCSO are made out. The

evidence of the Victim corroborated by the medical evidence proved

the essential ingredients for the offence for which the Appellant was

charged. Therefore, the conviction for the said offences by the

learned Trial Court cannot be faulted and thus, the conviction is

upheld.

17) There is no dispute that, the learned Trial Court

imposed the punishment of rigorous imprisonment for twenty(20)

years and fine of Rs.10,000/-, in default, to suffer simple

imprisonment for three(3) months for the offence punishable under 15/18 5-cri.appeal 579-23

Section 6 of the POCSO Act and imposed the punishment of rigorous

imprisonment for seven(7) years and fine of Rs.10,000/-, in default

to suffer simple imprisonment of three(3) months for the offence

punishable under section 506 of IPC. The operative order shows

that, in view of Section 42 of the POCSO Act, the punishment for the

major offence was imposed on the Appellant. The crime is dated

02/10/2018. The provision of Sections 4 and 6 of the POCSO Act,

which provides punishment, came to be amended on 16/08/2019

and the minimum sentence for ten(10) years and twenty(20) years,

respectively, came to be added by way of amendment in place of

minimum sentence of seven(7) years and ten(10) years respectively,

which was provided prior to the said date of amendment. This goes

to show that, the said amendment in enhancing the minimum

substantive sentence was made after the crime in the case at hand.

There can be no dispute on the settled legal position that, the

punishment provided in the statute on the date of commission of

offence can only be imposed. Para 8 to 15 from the above referred

decision in the case of Satauram Mandavi Vs. The State of

Chhattisgarh and another of the Hon'ble Supreme Court of India

relied upon by the Advocate for the Appellant are reproduced

below : -

16/18 5-cri.appeal 579-23

8. Section 6 of the POCSO Act, prior to the 2019 amendment, read as under:

"6. Punishment for aggravated penetrative sexual assault Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."

9. This Court, having found no merit in the challenge to conviction, had confined its notice to the question of sentencing. However, we find merit in the appellant's submission that since the offence was committed on 20.05.2019, the amended provision of Section 6 of the POCSO Act, which came into force on 16.08.2019, could not have been applied to his case.

10. In this regard, Article 20(1) of the Constitution of India is relevant and reads as under:

"20. Protection in respect of conviction for offences (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."

11. The Constitutional bar against retrospective imposition of a harsher penalty under Article 20(1) is clear and absolute. The Trial Court, in applying the enhanced sentence introduced by the 2019 Amendment to Section 6 of the POCSO Act, has effectively subjected the appellant to a punishment greater than that which was permissible under the law in force at the time of commission of the offence which is clearly violative of 17/18 5-cri.appeal 579-23

the bar contained in Article 20(1) of the Constitution of India.

12. The sentence of "imprisonment for life, meaning remainder of natural life," as per the amended provision, did not exist in the statutory framework on 20.05.2019, the date of the incident. Under the unamended Section 6, the maximum punishment permissible was imprisonment for life in its conventional sense and not imprisonment till the remainder of natural life.

13. Accordingly, while we uphold the conviction of the appellant under Section 6 of the POCSO Act, we modify the sentence to that of rigorous imprisonment for life, as understood under the unamended statute, and set aside the sentence of imprisonment for the remainder of the natural life. The fine of ₹10,000/- is maintained.

14. Appeal is partly allowed as per the findings above.

15. Pending application(s), if any, stand disposed of.

18) In view of the above, the punishment imposed by the

learned Trial Court on the Appellant needs to be interfered with so

as to bring the same in consonance with the law. Hence, the

following order :-

ORDER

(i) The Appeal is partly allowed.

(ii) The conviction recorded by the learned Trial Court against the

Appellant is maintained.

18/18 5-cri.appeal 579-23

(iii) Sentence of twenty(20) years rigorous imprisonment is

modified to rigorous imprisonment for ten (10)years with same

amount of fine and default sentence for the offence punishable

under Section 6 of POCSO Act is maintained.

(iv) Sentence of seven(7) years for the offence punishable under

Section 506 of IPC is brought down to one(1) year and fine of

Rs.1000/- in default to suffer simple imprisonment for fifteen(15)

days.

(v) Both the sentences shall run concurrently.

(vi) The Appellant is behind bar and he shall be entitled for set off

under Section 428 of Cr. P.C. for the substantive sentence, which he

has already undergone.

(vii) Rest of the operative order of the learned Trial Court remains

intact.

(viii) Record and proceeding be sent back to the learned Trial Court.

(ix) Fees of the learned appointed Advocate for Respondent No.2 is

quantified at Rs.5,000/-(rupees five thousand only). The same be

paid accordingly by the High Court Legal Services Authority.

(NEERAJ P. DHOTE, J.) Kavita.

Signed by: Kavita P Tayade Designation: PS To Honourable Judge Date: 20/02/2026 17:40:29