[Cites 10, Cited by 0]
Bombay High Court
Aadya @ Raju Harischandra Mhatre vs The State Of Maharashtra on 23 February, 2026
2026:BHC-AS:9320 10-APEAL-1439-2019.DOC
Rekha Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1439 OF 2019
Aadya @ Raju Harischandra Mhatre
Age 30 years, Occupation: Cleaner
R/o. Uchede, Post-Kandalepada,
Tal- Pen, District Raigad,
...Appellant
At present lodged at Nashik Road
Central Prison, Nashik.
Versus
1. The State of Maharashtra
Through Pen Police Station, Raigad
Vide their CR No. 132 of 2015.
2. XYZ
Through Pen Police Station, Raigad
Vide their CR No. 132 of 2015 ...Respondents
Mr. A. Z. Mookhtiar with Bhushan Ove, for the Appellant.
Mr. A. S. Gawai, APP, for the Respondent No.1-State.
Mr. Yashpal Thakur, Appointed Advocate, for the Respondent No.2.
CORAM : R. M. JOSHI, J.
RESERVED ON : 11th FEBRUARY, 2026
PRONOUNCED ON : 23rd FEBRUARY, 2026
JUDGMENT:
1. This appeal takes exception the Judgment and Order dated
6th December, 2017, passed in Special (Child) Case No. 63 of
2015, whereby the appellant is convicted for the offences
REKHA
PRAKASH
PATIL
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punishable under Sections 376(d) of the Indian Penal Code ( for
short "IPC") and Section 5 (m) of Protection of Children from
Sexual Offences Act, 2012 ( for short "POCSO Act") and sentenced
to suffer imprisonment for a period of twenty years with fine with
default sentence.
2. The informant, who is the mother of the victim, lodged
report with the police on 14th July, 2015 stating that on 12th July,
2015, she went to see her ailing uncle and came back home at
about 6:00 p.m., a girl 7 years of age was not at home. At about
6.30 p.m. she came home crying. The informant found that she
was bleeding from her anus and her nicker was stained with
blood. The victim informed to her mother about the incident
stating that Juvenile in Conflict with Law took her to W.C. on the
pretext of showing tortoise and at that place unnatural sex was
committed by him as well as present appellant. The First
Informant Report (for short "FIR") further shows that the
informant waited for arrival of her husband at home and
thereafter, told him about the incident. He also told them about
the incident, she went to the house of those boys, however, found
that they were not at home. It is claimed that out of shame no
information was immediately given to the police, however, on 14 th
July, 2015, the information about the incident was recorded with
the police. Crime came to be registered vide C.R. No. 132 of
2015. Investigation was done by lady police officer. The victim's
statement was recorded and she was sent for medical
examination. The accused were arrested. Statements of witnesses
were recorded. Panchanamas were drawn with regard to seizure
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of muddemal articles. The said muddemal was sent to CA for
examination. CA report came to be included in the investigation
papers. On conclusion of investigation charge-sheet was filed
before the competent Court.
3. Charge was framed against the appellant vide Exh. 4. Since
he denied the charges, he was tried. The prosecution examined in
all six witnesses in order to bring home the guilt of the accused.
Apart from oral evidence, the prosecution also relied on
documentary evidence, which includes the birth certificate of the
victim, medical certificate, CA reports etc. Learned trial Court
found that evidence led by the prosecution sufficient to prove the
guilt of the accused and hence, recorded the judgment and order
of conviction against him.
4. Learned Counsel for the appellant submits that there is
unexplained delay in lodging of the First Information Report in
respect of the alleged incident. It is his submission that once the
delay is caused and not been satisfactorily explained doubt is
created with regard to the case sought to be made out by the
prosecution. He further argued that the evidence of victim is not
consistent in order to rely upon the same and more particularly, in
view of the fact that the appellant had not been identified by the
victim before the Court. To support his submission failure to
identify the accused in the Court is fatal to the case of prosecution,
he placed reliance of the judgment of the Supreme Court in the
case of Tukesh Singh vs. State of Chhattisgarh reported in 2025
INSC 683. It is his further submission that in the facts of the case
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unless the version of the victim gets due corroboration from other
evidence, it would not be safe to sustain conviction of the
appellant. According to him, the DNA report has not been proved
by examining Chemical Analyzer nor the evidence of carrier is
recorded in order to be sure that the muddemal was kept tamper
free before its examination. It is his submission that even from the
medical evidence nothing is revealed in order to support the case
of the prosecution. By referring to the evidence on record it is
argued that the place of incident is situated in a crowded area, so
also, nearby a major road and, therefore, it is impossible that such
incident could occurred without being noticed by any one. It is
further argued that there is inconsistency in the statements of
witnesses with regard to the completion or otherwise of the work
of W.C. Finally, he argued that in the statement of the accused
under Section 313 of the Code of Criminal Procedure ( for short
"Cr.P.C."), he was asked question with regard to the incident
occurred at 7:00 p.m., whereas the incident had occurred as per
the case of the prosecution at 6:00 p.m. Thus, it is submission
that the accused was not given fair opportunity to explain the
evidence on record and hence, the conviction deserves to be set
aside. On these amongst other contentions he seeks acquittal of
appellant. He also relied upon following judgments;
i) Karandeep Sharma @ Razia @ Raju vs. State of
Uttarakhand (2025 INSC 444);
ii) Kalicharan and Ors. vs. State of Uttar Pradesh
(2022 INSC 1277)
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5. Learned APP and learned Counsel for respondent No.2
supported the impugned Judgment and Order by contending that
the prosecution has succeeded in proving the age of the victim to
be 6 years at the time of occurrence of the incident. It is their
submission that in view of the settled position of law, consistent
and reliable evidence of the victim itself is sufficient to prove guilt
of the accused. In response to the arguments advanced on behalf
of the appellant with regard to non examination of CA is
concerned, it is submitted that in view of the provisions of Section
293 of the Cr. P. C., it was opened for the trial Court to exhibit CA
reports without examining the Analyzer. It is submitted that the
defence has never raised any objection with regard to exhibition of
the said report and hence, now it is not open to challenge the
same. They took this Court through the evidence of the victim,
who according to them clearly states the name of the accused and
the act done by him and admittedly then was acquaintance
between them. It is further argued that there is no cross-
examination conducted of the victim in order to suggest that the
person named by her is not the accused but someone else. Thus,
according to them, there is no dispute with regard to the identity
of the accused and as such, even if the accused has not been
identified specifically before the Court, it does not become fatal to
the case of prosecution. It is submitted that this is the case of a
gang rape and the evidence is sufficiently proved the guilt of the
accused beyond reasonable doubt.
6. The principle for consideration of the evidence of victim of
sexual assault for the purpose of conviction of accused are fairly
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settled to say that if the testimony of the victim is worthy of credit
and free from doubt, it can be became sole ground for conviction
of the accused without seeking any further corroboration thereto.
Even in case of the offence under the POCSO Act, the burden
would remain on the prosecution to prove the guilt of the accused
beyond reasonable doubt. Keeping in mind the said position of
law, the evidence on record is evaluated.
7. There is no dispute about the fact that in respect of incident
occurred on 12th July, 2015, the offence came to be registered on
14th July, 2015. Needless to say that the delay in lodging of the
report by itself if justified, does not become fatal in each case nor
the evidence led by the prosecution could be doubted on that
ground alone. Here in this case, the victim is aged about 6 years
and she narrated the manner in which incident occurred to her
mother. The incident occurred in the evening of 12 th July, 2015.
As per the report, informant waited for arrival of her husband and
thereafter narrated the incident to him. Both of them went to the
houses of the perpetrators of crime but were not found at their
home. It is specifically claimed in the FIR that they felt ashamed
on going to the police. The evidence before the Court indicates
about her mental and physical condition after hearing the incident
from victim. As far as the delay is concerned, the Court has to see
as to whether there was any ground or reason for the informant
lodge a false report against the accused person. Herein the case,
though it was sought to be suggested to the informant that there
are disputes between the parties, there is absolutely no material
on record to holds. Thus this is not case of false implication.
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Moreover, the prosecution has sufficiently explained the delay of
one day caused in lodging of the FIR. In order to prove an offence
under POCSO Act, prosecution at the first instance is required to
prove that victim is a minor and child under Section 2(d) of the
Act. Informant in her testimony specifically deposed about date of
birth of victim to be 2nd March, 2009. She also placed on record
birth certificate of victim. In the cross-examination, defence has
not taken exception to the said evidence. In fact, practically
defence has not challenged the fact that victim is minor. It is
therefore, held that victim is child under Section 2(d) of the Act
and provisions of POCSO Act are rightly invoked in the instant
case.
8. The victim in her substantive evidence before the trial Court
narrates the manner in which the incident has occurred and she
was sexually abused by performing unnatural sexual intercourse
with her by the accused persons. She specifically states about her
mouth being gaged and therefore, she not being able to raise any
shouts. She names the appellant as "Adya" to be the one who
committed the said act alongwith Juvenile in Conflict with law. In
the cross-examination, no dispute is made by the defence with
regard to the fact that the person called 'Adya' is accused No.1.
There is no suggestion to the victim that Adya is some other
person than the accused that accused has not committed the
alleged act.
9. At this stage, it would be relevant to take note of judgment
in case of Tukesh Singh (supra) relied upon by counsel for the
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appellant. Perusal of para 22 of the judgment indicates that the
eye witness to the incident failed to identify the accused persons
though they were sitting in the Court, which was considered on
fatal to case of prosecution. As recorded above, the victim has
categorically stated about acts done by accused/appellant naming
him as 'Adya' and there is no challenge made to the fact that 'Adya'
is not accused. In respectful view of this Court, the judgment
supra thereof has no application to the present case. This Court
finds no reason to discard evidence that it was appellant who had
committed the said acts.
10. The testimony of the victim, therefore, is consistent, truthful
and inspires confidence and could become sole basis of recording
connection of accused.
11. As far as medical evidence is concerned, it would be
relevant to take note of the testimony of the Medical Officer, PW-6
Dr. Kadam. He states about having examined victim on 15 th July,
2015. She found two abrasions from right upper arm and one
abrasion on inter scapular region. Apart from this, on the
gynecological examination tenderness was found on anal orifice.
During the cross-examination, it was sought to be suggested that
tenderness to the anal orifice can be caused due to hard stools.
Though, the Medical Officer accepted the same as general cause,
she thereafter specifically deposed about considering the history
and season of examination the possibility of same owing to sexual
assault cannot be ruled out. Apart from this, there is no
suggestion made to the victim with regard to she having difficulty
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in passing stool or having problem of hard stool. In absence of any
such suggestion made to the victim, it is not sufficient for the
defence to seek an admission which is general in nature in order
to claim that this is not a case of sexual assault.
12. This witness, however, opined that the present case could be
merely an attempt. Relying upon the said admission of the
Medical Officer, it is sought to be argued that at the most this case
can be considered as 'attempt to commit rape'. In this regard, it is
material to take note of the provisions of Section 376 of the IPC
and Section 3 of POCSO Act. Section 3 of POCSO Act, reads thus;
"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
(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of the child or makes the child to do so with him or
any other person; or
(c) he manipulates any part of the body of the child so
as to cause penetration into the vagina, urethra, anus or
any part of body of the child or makes the child to do so
with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to such
person or any other person."
The said provision clearly brings the act committed by the
accused constituting rape. Thus, this Court finds no substance in
the contention of learned Counsel for the appellant that this is a
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case of attempt to commit offence. In any case, evidence of
Medical Officer is in the form of opinion and cannot override the
substantive evidence of victim duly supported by medical
examination report.
13. The evidence of the victim is not only free from doubt but
also get supports from medical evidence and in such
circumstances, it is immaterial as to whether there is other
evidence led by the prosecution in the form of CA reports etc.
Insofar as statement under Section 313 of Cr.P.C. is concerned, the
question asked by the Court was sufficient to indicate that the
Court was questioning him about deposed by the victim. As such,
there is no substance in the arguments advanced by learned
Counsel for the appellant in this regard.
14. The learned trial Court has taken into consideration the
entire evidence on record and the findings recorded against the
appellant/accused are not perverse in order to cause any
interference therein. Even on independent assessment of the
same, this Court concludes that the prosecution has succeeded in
proving the guilt of the accused beyond reasonable doubt.
15. Considering the fact that the victim aged about 6 years has
been subjected to the unnatural sex by two accused persons, this
Court finds no reason or justification to cause interference in the
quantum of the sentence too.
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16. As a result of above discussion, the Appeal stands dismissed.
17. R & P be sent back to the Trial Court.
(R. M. JOSHI, J.)
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