[Cites 17, Cited by 0]

Bombay High Court

Someshwar S/O. Mohan Uikey vs The State Of Mah. Thr. Pso, Ps Tirora, ... on 24 February, 2026

2026:BHC-NAG:3174


                                                  1                          crappeal 707.2023.odt

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

                                      CRIMINAL APPEAL NO. 707/2023

                    Someshwar s/o Mohan Uikey,
                    Aged 42 years, Occ. Labour,
                    R/o Navegaon Khurd,
                    Tah.Tirora, Dist.Gondia.                         ..     Appellant

                    Versus

                    The State of Maharashtra,
                    Through P.S.O., P.S.Tirora,
                    Tah.Tirora, Dist.Gondia.                         ..     Respondent
                                                       ...

                             Mr. P.S.Wathore, Advocate for Appellant.
                             Mr. U.R.Phasate, A.P.P. for Respondent/State.
                             Mrs.V.A.Warhade, Advocate (appointed) for Victim.
                                                            ...

                             CORAM :       NEERAJ P. DHOTE, J.
                             Date of reserving judgment : 28.01.2026.
                             Date of pronouncing judgment : 24/02/2026.

                    JUDGMENT:

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

Criminal Procedure, 1973 (for short "Cr.P.C."), against the judgment

and order dated 08.02.2023 passed by the learned Sessions Judge,

Gondia, in Special (POCSO) Case No.32/2018 convicting and

sentencing the Appellant as follows:-

(i) Accused Someshwar s/o Mohan Uikey is convicted

under Section 235(2) of the Code of Criminal Procedure for the

offence punishable under Sections 376(2) (i) of the Indian Penal

Code and under Sections 4, 5 (m) 6 and 8 of the Protection of

2 crappeal 707.2023.odt

Children from Sexual Offences Act, 2012 (for short, "POCSO").

(ii) Accused Someshwar s/o Mohan Uikey is sentenced to

undergo rigorous imprisonment for Ten (10) years and to pay fine

of Rs.3,000/- (Rs. Three thousand only), in default of payment of

fine amount, he shall further undergo rigorous imprisonment for

Two (02) months for offence punishable under Section 376(2)(i) of

the Indian Penal Code.

(iii) Accused Someshwar s/o Mohan Uikey is sentenced to

undergo rigorous imprisonment for Ten (10) years and to pay fine

of Rs.3,000/- (Rs. Three thousand only), in default of payment of

fine amount, he shall further undergo rigorous imprisonment for

Two (02) months for the offence under Section 5 (m) punishable

under Section 6 of the Protection of Children from Sexual Offences

Act. 2012.

(iv) Both the sentences shall run concurrently.

(v)     ......

(vi)    .....

(viii) .....

(iv)    .....

2. The Prosecution's case, as revealed from the police

report, is as under:-

3 crappeal 707.2023.odt

The Informant was residing with her husband and two minor

daughters at Navegaon Khurd, District Gondia. Informant and her

husband were labourerers. On 17.02.2018, the Informant and her

husband left home in the morning for work. Both the daughters

were at home. In the afternoon when the Informant returned home,

her elder daughter (Victim) complained of irritation in her private

part. The Informant checked the same and noticed redness and

swelling. As she had no money, she did not take the Victim to the

Doctor on that day. On the next day, the Informant took the Victim

to one Dr. Chauhan. On 19.02.2018 in the evening, the Victim told

the Informant that, the Appellant, who was their neighbourer had

put finger in her vagina and threatened her not to disclose the same

to anybody. The Informant told the incident to her husband. On

21.02.2018, the incident was reported to the Tirora Police Station,

District Gondia and Crime No.0051/2018 came to be registered

against the Appellant for the offence punishable under Section 376

(2)(i) of the Indian Penal Code (for short, "IPC") and Sections 4, 6,

8 of the Protection of Children from Sexual Offences Act, 2012. The

Victim was referred for medical examination. The statement of

Victim was recorded. The spot panchanama was performed. The

Appellant came to be arrested. The Appellant was referred for 4 crappeal 707.2023.odt

medical examination. On completion of investigation, the Appellant

came to be chargesheeted.

3. The learned Trial Court framed the Charge against the

Appellant below Exhibit-20 for the offence punishable under 376(2)

(i) of the IPC and Sections 4, 6, 8 of the POCSO Act. The Appellant

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

Prosecution examined in all four (4) witnesses. The Informant -

mother of Victim is examined as PW 1, the Victim is examined as

PW 2, the Medical Officer - Dr.Sheetal I. Khandelwal is examined as

PW 3 and the Investigating Officer - Kailash Vishnu Gaute is

examined as PW 4. In the evidence of the prosecution witnesses, the

relevant documents are brought on record. After the prosecution

filed evidence closure Pursis, the statement of the Appellant came to

be recorded under Section 313(1)(b) of the Cr.P.C. In defence, the

Appellant examined his wife as DW 1 to contend that, on the day of

incident there was programme at the Appellant's house which was

attended by many people and the accusations were false. On

appreciating the evidence available on record, the learned Trial

Court passed the impugned Judgment and Order convicting and

sentencing the Appellant as above.

5 crappeal 707.2023.odt

4. Heard the learned Advocate for the Appellant, the

learned APP for the State and the learned Advocate for Respondent

no.2 - Victim. Scrutinized the evidence on record.

(a) It is submitted by the learned Advocate for the

Appellant that, there was delay of four days in lodging the FIR. It is

submitted that, the age of Victim was not disputed. There are major

contradictions in the testimony of the Victim. No independent

witness was examined by the prosecution. Medical Evidence do not

support the case of the prosecution. Due to enmity, the Appellant

was falsely implicated. The Doctor, who initially examined the

Victim, was not examined by the prosecution. The Appellant was

staying with his family and it is improbable that, he will commit

such offence at his house. There was the 13th day ritual at the

Appellant's house on the day of incident and it was improbable that,

such act would have been committed by the Appellant. By

examining the defence witness, the presumption was rebutted. The

Appellant was having no antecedent. On the basis of the evidence

on record, the conviction be set aside and the Appeal be allowed.

(b) It is submitted by the learned APP that, the case largely

rests on the testimonies of the Victim, the Victim's mother and the

Medical evidence. There are no contradictions in the evidence of the

Victim. As the incident took place at the house of the Appellant, 6 crappeal 707.2023.odt

where no independent witness was present. The evidence brought

on record by the prosecution was consistent. The core testimony of

the Victim remained unshaken. There is no defence by the Appellant

that, he was not present in the house. The minor discrepancy in the

testimony of the Victim was not fatal for the prosecution. There is

no suggestion that, the Victim was tutored. No question that, the

redness was due to scratching and infection, was put to the Victim.

Nobody will falsely implicate on such accusations. The conviction

can be sustained on the sole testimony of the Victim. There is no

substance in the Appeal and the same be dismissed.

that, she adopts the submission of the learned APP and the Appeal

be dismissed.

5. When the Charge is for the offence punishable under

the penal provisions of POCSO, it becomes necessary for the

prosecution to prove that, the Victim was the `child' as defined

under Section 2(d) of the POCSO. It is the prosecution's case that,

the Victim was the child at the time of the incident. The Informant,

who was the biological mother of the Victim deposed the date of

birth of Victim as 12.06.2013. There is no challenge to the said date

of birth in the cross-examination. There is no challenge to the

Exhibit-27 Birth Certificate brought on record in the evidence of the 7 crappeal 707.2023.odt

Informant. It is clear from the evidence on record that, the date of

birth and the factum that, the Victim was a child was not in dispute.

6. The Spot Panchanama and Arrest Memo are admitted

by the Appellant.

7. The Victim is examined as PW 2. Her evidence shows

that, at the time of incident, she was attending Anganwadi (Play

School). She knows the Appellant as he was residing at some

distance from her house. On the day of incident while she was

playing with her younger sister on the road, the Appellant called her

for giving Chocolate and so she went near him. The Appellant gave

Chocolate to her and she ate the same. While the Victim was

playing in the Appellant's house, the Appellant removed her

undergarment and inserted his finger in her private part. The

Appellant threatened the Victim not to disclose the said act to her

mother or else he will beat her. No-one was present in the house of

the Appellant at that point of time. The Victim further deposed that,

in the afternoon when her mother came home, she narrated the

incident to her. As there was pain in her private part, her mother

took her to the Doctor on the next day. She was medically examined.

She identified the Appellant before the learned Trial Court.

8. According to PW 1 Informant, on 17.02.2018 when she

and her husband left their residence for work at 9.00 a.m. the 8 crappeal 707.2023.odt

Victim and her younger daughter were at home. As the younger

daughter was not feeling well, she returned home at 12.30 p.m. The

Victim told her of burning sensation in her private part. As she was

not having money, she did not take her to the hospital. On the next

day, she took the Victim to Dr. Chauhan and gave treatment. After

two days as the pain of Victim did not subside, she asked her as to

whether anything illegal happened and the Victim told her about the

incident of insertion of finger by the Appellant in her private part,

while she was playing in the house of the Appellant and the

Appellant threatened the Victim not to disclose the same. It is

further deposed by the Informant that, on 20.02.2018, her husband

came home and she narrated the incident to him and on the next

day they went to the Police Station and lodged the report at

Exhibit-24 and FIR below Exhibit-25 came to be registered. The

Victim was medically examined at the Hospital at Gondia. The

Clothes of the Victim were seized by the Police. She handed over

the Birth Certificate of the Victim to the Police. She identified the

Appellant in the Court.

9. Above evidence of material witnesses shows that,

according to the Victim, she informed about the incident to PW 1

Informant in the afternoon on the day of incident. Whereas,

according to PW 1 Informant, the Victim informed her about the 9 crappeal 707.2023.odt

incident after two days. This is the material inconsistency in the

evidence of PW 1 Informant and the Victim. Secondly, though PW 1

Informant deposed that, the Victim was taken to Dr. Chauhan and

given medical treatment, the said Dr. Chauhan is not examined by

the prosecution. Further, according to the Victim, she was playing

with her younger sister at the time of incident. However, the

younger sister of the Victim was not examined by the prosecution.

The evidence of PW 1 Informant shows that, the Accused was the

neighbourer and residing with his wife, daughter and son. The

evidence of PW 4 Investigating Officer shows that, during

investigation it transpired that, the Appellant was residing with his

family members. The evidence of PW 1 Informant and the evidence

of the Victim shows that, the house of the Appellant and their house

were in the residential locality. The evidence of PW 1 Informant

show that, there were 25-30 houses in their lane. Though the

Victim deposed that, she was playing in the house of the Appellant,

it has come in the evidence of PW 1 - Informant that, during the

time of incident death of relative of the Appellant had taken place

and on the day of incident there was some programme in that

regard.

10. The evidence of PW 3 Medical Officer shows that, on

22.02.2018, the Victim was brought by the lady Police Constable for 10 crappeal 707.2023.odt

medical examination. The history was given by PW 1 Informant. On

examination of the Victim, she found no evidence of external injury

on the body of the Victim. On local examination, she found slight

redness over right side labia minora. Her Ps/Pv examination of the

Victim could not be done as she was not cooperating and crying. She

issued Medical Certificate at Exhibit-34. Her evidence shows that,

she advised ultra-sonography of pelvis to know the insertion of any

foreign body and found sonography report normal. She opined that,

the redness on labia minora could be due to insertion of finger

forcefully. However, in the cross-examination, she deposed that, the

redness on labia and minora may be due to infection like candidiasis

etc., the etching and redness can happen due to wet clothes. This

shows that, as regards the redness on the private part of the Victim,

two versions have come on record. It is thus clear that, the medical

evidence is not conclusive.

11. By examining the defence witness no.1, it is the case of

the Appellant that, the relations between his family and family of

Victim were not cordial and they were not on visiting terms. The

appellant's uncle Mahadev Uikey had expired on 17.02.2018 (the

date of incident) and there was 13 th day ritual of the Appellant's

uncle for which many people had come to their house. The

Appellant and her family members were at home. The `Card' of the 11 crappeal 707.2023.odt

said 13th day ritual is brought on record in the evidence of this

witness at `Article-D'. It has come in the cross-examination of

defence witness that, after 10.00 a.m. to 11.00 a.m., they were at

house of Mahadev i.e. deceased till evening and 200 people

gathered for the said 13th day ritual. Nothing has come in the cross-

examination of defence witness so as to create dent in her testimony

or to render her testimony improbable.

12. The evidence on record shows that, the evidence of the

Victim and PW 1 Informant is not consistent with each other. The

material witnesses i.e. Dr. Chauhan and the younger sister of the

Victim, who was playing with the Victim at the time of incident, are

not examined. The medical evidence do not conclusively establish

the sexual assault. The suggestion of tutoring is given. The

suggestion that, the Victim's statement was belatedly recorded is

given. There can be no dispute that, the conviction can rest on the

sole testimony of the Victim, provided it is concrete, unshakable and

inspire confidence. Here the evidence available on record do not

give the required assurance in respect of the Victim's version. The

Appellant has successfully rebutted the presumption under Section

29 of the POCSO. It has firmly come on record that, the Appellant

was residing with his family. It is successfully brought on record by

the Appellant that, there was 13th day of ritual of his uncle and 12 crappeal 707.2023.odt

many people had visited for the same. The overall evaluation of the

evidence available on record, do not give the required assurance to

accept the prosecution's case. The evidence on record do not

conclusively establish the Charge. Considering the evidence

available on record discussed above, the Appellant is entitled for

acquittal. Resultantly, the Appeal succeeds and hence the following

order:-

ORDER

(i) The Appeal is allowed.

(ii) The conviction and sentence recorded by the learned

Trial Court against the Appellant by judgment and order dated

08.02.2023 in Special (POCSO) Case No.32/2018 for the offence

punishable under Section 376 (2)(i) of the Indian Penal Code and

Sections 4, 5(m), 6 and 8 of the Protection of Children from Sexual

Offences Act, 2012, is quashed and set aside.

(iii) The Appellant is acquitted for the offence punishable

under punishable under Section 376 (2)(i) of the Indian Penal Code

and Sections 4, 5(m) 6 and 8 of the Protection of Children from

Sexual Offences Act, 2012

(iv) The Appellant is behind bars. He be released forthwith,

if not required in any other offence.

13 crappeal 707.2023.odt

(v) The fine amount, if any, paid by the Appellant be

refunded to him.

(vi) The record and proceedings be sent back to the learned

Trial Court.

(vii) The fees of the appointed Advocate is quantified to