[Cites 17, Cited by 0]

Bombay High Court

Laxman @ Sagar Sampat Ghodake vs The State Of Maharashtra And Another on 26 February, 2026

2026:BHC-AUG:10030


                                           (1)                     930criapl1157.23

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 1157 OF 2023

                Laxman @ Sagar Sampt Ghodke,
                Age-25 years, Occu-Agriculture
                R/o. Andoor, Tq. Tuljapur,
                Dist. Osmanabad                            ...APPELLANT

                      VERSUS

                1.    The State of Maharashtra,
                      Through Police Station,
                      Naldurga, Tq. Tuljapur,
                      Dist. Osmanabad

                2.    X. Y. Z.                             ...RESPONDENT


                Mr. Rajendra Deshmukh, Senior Advocate a/w Mr. Hashmi Ubaid S.,
                Advocate i/b Mr. Vivekanand B. Deshmukh, Advocate for the
                appellant
                Mr. A. S. Deshmukh, APP for the respondents/State
                Mr. J. S. Jain, Advocate for the victim respondent No. 2

                                     CORAM : RAJNISH R. VYAS, J.
                                       DATE : 26th FEBRUARY, 2026


                JUDGMENT :

1. Heard learned Advocate for the appellant, learned APP

for the respondent/State and learned Advocate for the victim.

2. The present appeal is preferred at the instance of the

original accused No. 1 Laxman @ Sagar Sampat Ghodke, challenging

his conviction awarded by the Special Judge, Osmanabad, in Special

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Case (POCSO) No.26/2021 dated 26-10-2023. In all, two accused

were tried before and the present appellant was the original accused

No.1 who was convicted for the commission of offences punishable

under Section 6 of the Protection of Children From Sexual Offences,

Act, 2012 (hereinafter referred to as 'the Act of 2012' for the sake of

brevity) and sentenced to suffer rigorous imprisonment for 20 years

and to pay a fine of Rs. 25,000/- in default, rigorous imprisonment

for six months.

3. The appellant was also convicted for the commission of

offences punishable under Section 363 of the Indian Penal Code (for

short 'the IPC') and directed to suffer rigorous imprisonment for three

years and to pay a fine of Rs. 5000/-. In default, to suffer rigorous

imprisonment for one month. He was also convicted for the

commission of offences punishable under Section 342 of the IPC and

sentenced to suffer rigorous imprisonment for six months and to pay

a fine of Rs. 2000/-. In default, to suffer rigorous imprisonment for

fifteen days. All the sentences were ordered to run concurrently.

4. The appellant was acquitted for the commission of

offences punishable under Sections 366, 376 (DA), 376 (3) and

Section 341 of the IPC and Section 4 of the Act of 2012. The other

accused, by name Mukesh @ Bhaiya Bhagwan Bhore, was acquitted

2 of 50 (3) 930criapl1157.23

of the offences under Sections 363, 366, 376(DA), 341 & 342 read

with Section 34 of the IPC. It is a conviction that is taken exception to

in the present case.

CASE OF THE PROSECUTION IN BRIEF:

5. The prosecution has contended that the victim, who was

a minor in the eyes of the law, had been to the school at about 09:00

am and returned at about 2 pm. The victim was proceeding to her

friend's house along a particular lane to return her notebooks. At that

time, the appellant, along with two other accused, named Anand and

Bhaiya, arrived. Anand grabbed her hands and asked her to

accompany them. They took the victim to the house of the appellant

and confined her. At about 03:00 pm, the appellant came to the said

house and committed forcible sexual intercourse and went out.

Similarly, the act was repeated at about 04:00 pm. All three accused

left the accused on the backside of her house.

6. It is on the narration of these events that a criminal law

was set in motion.

NUMBER OF WITNESSES EXAMINED AND DOCUMENTS RELIED:

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7. The prosecution, to bring home the charge, has relied

upon 15 witnesses and 52 documents.

QUESTION FOR CONSIDERATION:

8. Whether the prosecution has proved that the victim was

a minor at the time of the incident?

9. Whether the prosecution has proved that the appellant

has committed an offence punishable under Section 6 of the Act of

2012, as also Sections 363 and 342 of the IPC?

CONTENTION/ARGUMENTS ADVANCED BY THE ACCUSED SO FAR AS AGE IS CONCERNED:

10. It is contended by learned Senior counsel for the

accused that the prosecution has not proved the age of the victim by

birth certificate and birth report below, Exh. 60 and 61. Testimony of

the victim's mother and father, the Medical Officer, and PW-5 and

PW-6 (i.e., the Gramsevak and Headmaster) was not sufficient to

prove the victim's age.

CONTENTION OF THE LEARNED APP:

11. Date of birth is mentioned by the parents of the victim in

their testimony. The testimony of PW-5 and PW-6, i.e., Gramsevak

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and Headmaster, corroborates the testimony of parents of victim I.e.

PW-2 and PW-3. Exh. 60 and 61 birth certificates and birth reports of

the victim, if read in the light of the Exh. 63 letter of the Headmaster

and Exh. 64 school admission extract, as well as other proven

documents, would clear that the age is duly proved.

ANALYSIS REGARDING AGE:

12. The Act of 2012, more particularly, clause (d) of Section

2 defines a 'child' as any person below the age of eighteen years. PW-

2's testimony would reveal that she stated in her examination-in-chief

that the victim was her daughter, that the victim's date of birth was

13-09-2006, and at the relevant time, the victim was studying in 9th

Std. Cross-examination of the aforesaid witness would clearly reveal

that the defence has not cross-examined this witness on the point of

age. In fact, no suggestion is made that the age stated in the

examination-in-chief was incorrect.

13. PW-3 is the father of the victim, who, in his examination-

in-chief, stated that the victim was his daughter and she was born on

13-09-2006 at the village 'PT'. If cross-examination of the aforesaid

witness is perused, it would be clear that no suggestion was given to

this witness regarding the date of birth of the victim. Thus, it is

5 of 50 (6) 930criapl1157.23

crystal clear that the defence does not dispute the date of birth.

Hence, there is no challenge to it.

14. PW-5-Gundurao, at the relevant time, was working on

the post of Village Development Officer attached to the Gram

Panchayat of village 'PT', who stated that since 2018, he had been

working on the post of Gram Sevak and on 15-09-2006, one Koli was

a Gram Sevak. Gram Sevak had the authority to record entries of

death and birth, and the Registrar post is an add-on by Gram Sevak.

PW-5 has stated that in the Gram Panchayat of village 'PT', there is

an entry of the birth of the victim, which was taken on 15-09-2006

and was at Sr. No. 31. The information to that effect was supplied by

relatives by the name Tipaiyya Swami. This witness had brought the

original record at the time of deposition, who was shown a Xerox

copy of the birth certificate, on which the signature was that of the

then Gram Sevak Koli, from whom PW-5 had taken the charge. The

witness identified the signature of Koli and stated it was correct. It

was marked as Article-A9. This witness has stated that he had

brought a certified birth certificate along with him, which was shown

to him. He wrote the contents of the certificate, and he admitted his

signature; it was consistent with the original record. It was proved

below Exh. 60. He had also produced a true copy of the birth entry

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as per the original record. He stated that the original documents bear

Koli's signature. Extract was marked as Exh. 61. He deposed that, as

per the record available with their office, the date of birth of the

victim is 13-09-2006.

15. This witness, in cross-examination conducted by the

defence, admitted that relatives of the victim had not submitted the

written application providing the information. He further admitted

that at the time of taking the entry of birth, either the relatives of the

child are required to give information in writing or the concerned

Gram Panchayat Clerk is required to visit the house, collect the

information, and thereafter, the entries are taken. He admitted that

the Clerk of the Gram Panchayat had not provided written notice

accordingly. He admitted that Swami's relative was the Clerk of the

Gram Panchayat and that he had a regular relationship with the

Tipaiyya. Tipaiyya also records all entries in the Gram Panchayat's

record. This witness has admitted that pagination is not done for the

He showed his ignorance regarding the foundation on which the Exh.

61 dated 13-09-2006, the entry of birth was taken.





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                             (8)                       930criapl1157.23

16. He admitted that Koli was on the said post in the year

2006, and Exh. 61 also bears Koli's signature. He denied the

suggestion that Exh. 61 and Article-A-9 bear the signatures of two

different persons. He also denied that he is ignorant of whether

Tipaiyya has made a false entry in Exh. 61 and Article-A-9. He

admitted that Tipaiyya is the victim's maternal uncle. The witness

was suggested that the date of birth, i.e., 13-09-2006, is correct.

17. Exh. 60 is a birth certificate dated 12-05-2022. Date of

registration is 15-09-2006. It reveals the name of the child, date of

birth, the mother of the victim, the date and place where the parents

were residing at the time of the child's birth, gender, and place of

birth.

18. Exh. 61 is an extract of the birth entry. Exh. 61 and Exh.

60 show the victim's date of birth as 13-09-2006. In Exh. 61, the

gender of the child born, name, names of the parents, place of birth,

details of the hospital, house, and persons who have taken entry are

also shown. Exh. 60 and 61 are dated 15-09-2006.

19. At this juncture, it is necessary to mention that the

offence in question was committed in 2020, whereas Exh. 61 shows

that its date is 15-09-2006. Exh. 60 shows that the date of

8 of 50 (9) 930criapl1157.23

registration is also 15-09-2006. Thus, it is crystal clear that

immediately after two days of the birth of the child, the necessary

registration was done. It is thus difficult to believe that false evidence

would be created within two days of the child's birth for an incident

that would occur after fourteen years.

20. PW-6-Yashwant, who was the Headmaster of the school,

deposed that on 25-10-2018, he was working as a Headmaster with

the concerned school and on 13-01-2021, the police had issued a

letter asking to provide the extract of the admission register. The

letter was shown to this witness, who identified his signature. The

same was proved below Exh. 63. He stated that he then supplied the

extract, which was below Exh. 64. He identified the signature on Exh.

64. He further stated that the entries in Exh. 64 are in accordance

with the General register, which he brought at the time of deposition.

He stated that he tried to locate the original record submitted at the

time of admission, but could not find it, and was summoned to

produce the admission form, which was not issued to him. He was

given a letter to that effect below Exh. 65. He further submitted that

he had produced the copy of the original general register on record,

which was at page No. 38 and which was marked as Exh. 66. He

stated that the entry of the student is in the register at Sr. No.250

9 of 50 (10) 930criapl1157.23

and the date of admission is 15-06-2012 at which time one Babu

Fulchand Jadhav was the Headmaster who had died. He deposed

that, as per the record, the victim's date of birth is 13-09-2006 and

the place of birth is the village 'PT'.

21. During cross-examination, he admitted that the students'

birth certificates are not with him. Also, he is not aware of the basis

on which the entry in the General Register regarding date of birth is

taken. He has denied that he is deposing falsely. Otherwise, nothing

was asked of him. Exh. 64 is the extract dated 30-01-2021, which is

issued after the incident. The said exhibit has 20 columns, including

the name of students, father's name, caste, mother-tongue, date of

entry, class in which the student is admitted, date and class when the

victim left the school, etc. It shows that the victim's date of birth is

13-09-2006, as also found in Exh. 60 and 61.

22. Exh. 66 is the General Register showing the entries of

new students, and at Sr. No. 250, the name of the victim and the date

of birth are stated as 13-09-2006. The manner in which this witness

is cross-examined clearly shows that the testimony is not seriously

disputed. In this regard, it is necessary to mention that, overall, the

evidence discussed above clearly establishes that the prosecution has

proved the victim's age and date of birth as 13-09-2006, which,

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consequently, proves that on the day of the incident, she was 14

years and 4 months old.

23. At this stage, it is necessary to consider law laid down by

the Hon'ble Apex Court in the case of Sushil Kumar Tiwari Vs Hare

Ram Shah and others reported in AIR 2025 SC 4828 more

particularly, para Nos. 16 to 18 as under:

16. As regards the first issue concerning the age of the victim, it is quite understandable that for an offence under the POCSO Act, the victim must be aged under 18 years. To prove this, the prosecution has relied on both oral and documentary evidence. The oral testimony of the mother of the victim, examined before the Trial Court as PW-3, reveals that the victim was 12 years old at the time of the incident. Further, the victim's statement under Section 164 Cr.P.C. also bears an endorsement regarding her age. The concerned ACJM, examined as PW-4, has recorded her age as 13 years.

The father of the victim, examined as PW-5, has deposed that the victim's age at the time of the incident was 12 years. Insofar as the documentary evidence is concerned, the Transfer Certificate (Annexure P-10) issued by the government school attended by the victim records her date of birth as 03.10.2004, thereby indicating that during the relevant time frame of 2016, the victim was approximately 12 years old. The medical report dated 01.07.2016 (Annexure P-1) is also relevant to this aspect. The said medical report pertains to the ultrasound examination of the victim and records her age as 15 years.

17. It cannot be denied that there are slight variations in the age of the victim at the relevant point in time, as discernible from the oral and documentary evidence. However, we do not agree with the High Court that the age was not proved at trial. The oral testimonies of PW-


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                (12)                      930criapl1157.23

3, PW-5, and PW-6 are consistent with each other and with the Transfer Certificate issued by the government school. The victim's age appears to be within the range of 12-13 years at the relevant time. The medical report records the age as 15 years. However, we cannot lose sight of the fact that the age of the victim was not challenged during the cross-examination of any of the witnesses mentioned above. Their testimonies, on the point of age, have largely remained unrebutted, thereby meaning that the Respondent Nos. 1 and 2 had no claim that she was not a minor at the relevant point. We do not mean to say that, in cases involving the POCSO Act or the Juvenile Justice (Care & Protection) Act, 2015, the determination of age is not required. Most certainly, the determination of the minority is essential to extend the protection of this legislation; however, as long as the age conclusively appears to be under 18 years, the special protections carved out in favour of children cannot be diluted by insisting upon a rigid determination of the age, even when it was not even questioned at the right time. In the present case, even if it is believed that the victim's age was not determined to the hilt, the Trial Court concluded that the victim was aged between 12 and 15 years at the relevant time and thus was a minor. Thus, it could not be said that the Trial Court had not determined the victim's minority. It was done and, in our opinion, rightly so, based on the unrebutted oral and documentary evidence.

18. Interestingly, the Respondent Nos. 1 and 2 neither claimed that the victim was not a minor at any point in time nor led any evidence to that effect. We find that the High Court has erred in raising a doubt where none existed, even between the parties to the case. We are also of the opinion that once the minority of the victim was beyond doubt, the special protection of the POCSO Act ought not to have been diluted by raising a fictitious doubt regarding the precise age of the victim , for the Courts must remain alive to the socio-economic circumstances of the victims, especially those who are based in remote regions of the country. In rural regions, discrepancies in educational and identification documents are not uncommon and, in such

12 of 50 (13) 930criapl1157.23

circumstances, the Courts must be sensitive to the ground realities of society, to ensure that the intent of the law is not suppressed and that protections created by the legislature reach the intended persons in their intended spirit.

24. The aforesaid observation would reveal that what is

required to be appreciated are the ground realities also. Be that as it

may, consistent testimony of the aforesaid witness discussed (supra)

has proved that the victim was a child at the time of the incident.

EVIDENCE OF VICTIM OF CRIME

25. Before discussing the testimony of witnesses , it is necessary to

mention here that Section 6 of the Act of 2012 prescribed

punishment for aggravated penetrative sexual assault. Penetrative

sexual assault is defined under Section 3 of the Act of 2012 as 'a

person is said to commit penetrative sexual assault if he penetrates

his penis to any extent......into vagina........'. Section 5 of the Act of

2012 speaks about aggravated penetrative sexual assault. It means

that when a penetrative sexual assault is committed on a child more

than once or repeatedly, then it invites punishment under Section 6

of rigorous imprisonment for a term which shall not be less than

twenty years, which may extend to imprisonment for life....... Or

with death also.





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26. At this stage, it is disturbing to note that, though the

Hon'ble Apex Court has stated in a catena of cases, including case

report in 2019(2) SCC 703, Nipun Saxena and another vs Union Of

India Others that the identity of the victim should not be revealed,

the depositions recorded show that the victim's name is mentioned.

The office is directed to conceal the victim's identity from the record.

27. It is in this background that the testimony of the victim/

PW 1 is required to be looked into, who has stated her date of birth

as 13-09-2006 and was studying in 9th std, and she knew the

accused persons residing in the lane in her village. At about 02.00

pm, she was returning from the school towards her friend's house to

return the books,when Sagar, Anand and Bhaiya were sitting. Anand

caught hold of her hands, and all the accused took her to the house

of Sagar. She was then confined in the last room, and after one hour,

Sagar came there and, against her will, forcibly committed sexual

intercourse, and thereafter returned and repeated the act after one

hour, which was against her will.

28. PW-1 has deposed that in the morning, Anand came, at

which time Sagar was standing outside the room. Anand told her that

her mother had lodged a report and thereafter dropped the victim

behind her house, from which the victim returned home. The victim

14 of 50 (15) 930criapl1157.23

was frightened and therefore did not disclose the incident to

anybody. On the 28th, she reported the incident to the police. Her

statement was recorded and is shown below as Exh. 33. She was then

forwarded for medical examination, where she narrated the incident

to the doctor. She showed a spot of the incident. She stated that she

handed over the clothes to the police, and would identify if her

clothes, the clothes of the accused, the bed-sheet, the towel, and the

quilt, as well as the quilt, were shown to her. She stated that her

statement was recorded at Tuljapur court, which was shown to her;

she identified the signature on it as Exh. 34. She identified the

accused Sagar and Anand.

29. This witnesses was subjected to detailed cross-

examination. An attempt was made, by cross-examination, to bring

on record the fact that the village in which she was residing was

large, that there is a temple on the lane, and that her house is

situated in the main area of the locality, which has heavy traffic. On

the same road, there is a market. From the temple, her house is not

far. Anybody can see from her house a person passing towards a

temple, and on the left, as one goes from her house towards the

temple, the house of Anand is situated. Thereafter, four more houses

are situated on the south side of the accused Sagar Patil's side house.




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                            (16)                      930criapl1157.23

The road leads to the house of Sagar and Balkrushna. She also

admitted that on the north side of Sagar's house, there is the house of

Nagini, and on the west side, there is the house of Balkrushna.

30. She admitted that she has known the accused persons

since her childhood, and accused Anand was working in the Janta

Bank in the year 2021, and Sagar, Balkrushna, and Anand are close

relatives. She also identified that one MLA, Madhukar, is from her

village, and she is not aware of which party Balkrushna works for.

She admitted that Anand, in politics, stays with Balkrushna. She also

admitted that in January 2021, there were elections to the Gram

Panchayat. But she stated that she was not aware whether Anand,

Sagar, Bhaiya, and Balkrushna were on the panel of MLAs. She also

admitted that Gangadhar and Shivleela Swami were her relatives,

and she knew Deepak. She was not aware whether Deepak contested

the election from the panel of a particular party. In short, it was the

defence that there was political rivalry between two groups in the

village, and that this is why the accused persons were falsely

implicated.

31. Witness admitted in cross-examination that on 26-01-

2021, since morning to evening, she and her parents were at home.

She admitted that the incident dated 26-01-2021 stated in her

16 of 50 (17) 930criapl1157.23

examination-in-chief had not taken place. She also admitted that due

to the COVID-19 situation, schools remained closed.

32. This witness, in cross-examination, has admitted that

Anand had grabbed her hands at the sitting place near Aralikar's

house, and thereafter she started shouting. Still, nobody came to her

rescue, and there was a scuffle in which she sustained no injury. She

stated that when Sagar was taking her to the house, nobody saw her.

She denied the suggestion that if the call is given, it can be heard in

her house from Sagar's house. She stated that while going towards

Sagar's house, Aralikar and other persons had not seen her. She

admitted that if a call is made from the house of Sagar, it reaches the

houses of Balkrushna and Nagini. She admitted that Sagar's and

Nagini's houses are east-facing, and that to reach Sagar's house,

Nagini's house must be crossed and She had never visited the house

of Sagar on an earlier occasion. She admitted that she was not in a

position to say which articles were kept in Sagar's house. She also

showed her ignorance about the number of doors in Sagar's house.

The room in which she was confined had a tin door, and she called

for help by pushing it, but the neighbours did not come. In the said

room, she was from 02.00 till 03.00-03.30, and at that time, none of

17 of 50 (18) 930criapl1157.23

Sagar's family members was present. She showed her ignorance

about the people residing in Sagar's house.

33. In the lengthy cross-examination of this witness, she also

admitted that when she was subjected to forcible sexual intercourse,

she did not sustain injury on her person. When Sagar went outside,

she tried to rescue herself and also tried to unlock or remove the

door. Though she called for help, nobody came. At which time,

Bhaiya was standing outside the room, and she was not aware

whether Anand had gone. She also stated that when she came out,

nobody noticed her, and she was not wearing a watch. She

volunteered that she had seen the timing on somebody's mobile. She

admitted that after a physical relationship, she came out, asked for

help, but nobody came, and nobody saw her. She also admitted that

after returning home, she did not disclose the incident to either her

parents or grandparents, and that she did not shout upon arriving

home. When she reached the house, nobody opened the door. She

stated that she was not in a position to state when she left the house

to go to the police station, and before visiting the police station, she

took a bath and drunk milk.

34. She also stated that, until she reached the police station,

she was not aware that her father had lodged a complaint. It was not

18 of 50 (19) 930criapl1157.23

decided what to disclose to the police. In cross-examination, this

witness admitted that Shantappa is her cousin, and her uncle is a

teacher at the school, and before visiting the police station, he had

come to the house. She admitted that till the arrest of Sagar and

Bhaiya, Shantappa was with the victim and while going to the police

station, she, cousin Shantappa, and parents were together. She

admitted that, while going to the police station, she was told why

they were visiting, and that when they arrived, there was a crowd.

35. She admitted that, because of the crowd, she got

confused and was unsure what to say. She stated that she was not

aware of why so many people had gathered there. She stated that she

does not remember who took her statement or typed it. She also

admitted that three signatures on three statements were taken before

she signed, but clarified that those signatures were taken in her

presence.

36. A question was put to this witness in cross-examination:

when the statement was brought to her for signature, she came to

know of its contents. The victim stated that the statement was written

as she narrated it. She stated that it was evening, around 4-5 o'clock,

and that her signature was taken on the statement. She also admitted

that when she reached the police station, there was chaos. She

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admitted that after taking her signature on her statement, the police

informed her that she was required to visit the Andur Hospital and

that they had accompanied her. She admitted that there was a crowd

in the hospital.

37. A question was put to her as to what examination was

done, to which she replied that it was examined whether any injury

was caused or not. She denied the suggestion that the clothes were

not handed over to the police, stating that on the 28th, she had given

them to the police. She had been taken to the police station, but she

was unable to tell the time. She admitted that the clothes given to the

police were for day-to-day use, and that they were given to the

mother who was with her. She admitted that on the day of the police,

clothes were brought. She admitted they were proceeding with the

clothes and that the police had asked her mother to bring them. But

the police had asked at the hospital to bring the clothes. She

admitted that till the police asked in the hospital, the clothes were

not handed over to the police. She further admitted that the articles

seized from the room were not disclosed to her by the police, and

that she was not present when the accused's clothes were seized. She

stated that she was unaware from whom clothes were seized. The

20 of 50 (21) 930criapl1157.23

spot panchanama was prepared on the 27th, and she was unaware of

the spot of the incident.

38. This witness has admitted that in the Tuljapur court, she

and her parents were called, and at that place, the police officer from

Naldurga Police Station was there. But it was the lady police who

were present. She denied that she was told what was to be deposed

in the Tuljapur court.

39. She admitted that her house consists of two rooms, and

on the back side of the house, there are two rooms of tin. She stated

that on the front east side of the hall and kitchen immediately

adjacent to it, there are five rooms of tin. She showed her ignorance

about whether the village was closed for one month after the case.

She denied that the woman president of the concerned party had

visited her parents. She stated that one Chitra Wagh from the

Bharatiya Janata Party had met her. She denied that one MLA had

also accompanied said Chitra. She denied the suggestion that others,

including some politicians, had also visited her house.

40. She admitted that the President of Zilla Parishad had

accompanied Chitra and met the victim and the parents. She denied

the suggestion that a few persons affiliated with a particular party

21 of 50 (22) 930criapl1157.23

were repeatedly visiting the police station to demand the arrest of the

accused. She showed her ignorance of whether the journalist had

visited her house and whether news of the incident had appeared in

the newspaper. She denied that Chitra had given any financial

assistance.

41. She stated that she had not disclosed to Vaishnavi her

friend that the victim was subjected to sexual intercourse when she

was returning the copy/register. The omissions were then brought on

record at para 26. The omissions were 'while going from the lane,

accused Sagar, Anand & Bhaiya were sitting near Aralikar's place,

likewise she was detained in the last room of the house of Sagar'. She

could not give any reason for not recording the aforesaid facts in the

statement. She also stated that she had stated to the police that after

committing the rape, Sagar "went outside" and was disclosed to the

police. But she showed her ignorance about why it was not written.

She admitted that she did not disclose to the police that when Anand

came, Sagar was outside the room. She stated that she had disclosed

to the police that she had been dropped off behind her house. But she

is not aware why the police had not written the same. The

suggestions were given to her regarding the incident on that date,

which she denied. Various suggestions were given to her regarding

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showing the spot of panchanama, and photographs were shown to

her, which she denied. The suggestions about the handing over of

clothes and the recording of her statement under Section 164 code of

criminal procedure were also denied by her.

42. This witness was again subjected to detailed cross-

examination at the instance of another accused. She denied that the

accused, Bhaiya, was in Solapur for educational purposes. She

admitted that behind her school is a temple of Lord Khandoba, and

many devotees visit it. She admitted that there are two gates to the

school, with the main door at the north and the second gate at the

west. She admitted that a crowd of people visits the temple. She

admitted that she resides with her grandparents, parents, sister,

brother, and Aunty's two children in the house, The victim and her

sister have the same school time, Her grandfather has retired from

the Irrigation department; he is fit and can hear and speak.

43. She also admitted that, as her father is a religious

person, he used to visit the temple in the morning, noon, and evening

and sit there. At the time of the incident, the grandfather was at

home. She admitted that in front of the temple, her mother runs a

stationary shop that opens at 08.00, and recess is between 12.00

noon and 04.00 pm. The shop closes at 09.00 pm. The distance

23 of 50 (24) 930criapl1157.23

between Andur and Naldurga is 3-4 km, and it takes 10-15 min to

travel.

44. She admitted that there is a smartphone and a dish

antenna installed in her house. Her parents and grandfather are avid

television watchers. Her mother has a smartphone. suggestions

regarding the incident that did not happen were denied. This witness

was again recalled and at that time, the clothes were shown to her,

which she identified.

45. She was again subjected to cross-examination, during

which she admitted that she did not remember the date the clothes

were seized. She stated that the clothes were seized in the police

station. She could not recall the date the clothes were seized from her

mother, nor could she recall whether they were taken to the police

station. She stated that she had given the clothes to her mother.

46. The learned Senior counsel, on various grounds,

challenges the testimony of the aforesaid witness:

CHALLENGE TO THE TESTIMONY OF THE VICTIM BY THE APPELLANT:

47. The learned Senior Counsel has contended that the story

advanced by the victim is totally false and fabricated. He submitted

24 of 50 (25) 930criapl1157.23

that the case in question is a striking example of false implication due

to political rivalry. According to him, the victim admitted in cross-

examination that one Chitra had visited her house along with the

President of the Zilla Parishad. It is also clear from the cross-

examination that a crowd was present not only at the police station

but also at the hospital. He further argued that Deepak's active

participation throughout the episode clearly shows that the case is

entirely false. The learned Senior Counsel has also contended that the

victim's conduct fails to inspire confidence. The victim's silence,

which in not raising any alarm, clearly shows that something is

missing from the prosecution's case. The spot of the incident would

reveal that it was situated in a thickly populated area, and any shout

by the victim could have been heard by the person residing in the

locality. He submitted that the conduct clearly shows the prosecution

has not proved the case beyond a reasonable doubt. However, the

victim has resisted the act of forcible sexual intercourse; no injury

was found on either the body of the accused or the victim. He further

argued that, admittedly, her father used to sit in the temple for the

long hours, and the incident spot would reveal that the temple was

not far from it. In this background, he submitted that the story is not

at all believable. He submitted that the victim and the victim's family

25 of 50 (26) 930criapl1157.23

members had mobile phones and that immediate lodging of the first

information report was therefore expected.

48. According to the learned Senior Counsel, there is one

more aspect that needs to be taken into consideration. During the

course of the investigation, nothing was found, so far as accused

Anand is concerned, and therefore he was not charge-sheeted. It is

his case that during the course of the trial, the prosecution preferred

an application under Section 319 of the Cr. P. C., and thereafter, the

process was issued against Anand.The process was challenged before

this court by preferring criminal revision application No. 296/2022,

which was decided on 23-01-2023, and the order issuing the process

was quashed. Learned Senior Counsel submitted that while quashing

the impugned order, this court has taken into consideration the fact

that accused Anand was not present on the spot, and according to

him, this goes to the root of the matter. Since the genesis of the crime

is suppressed, he further submitted that the foundation of the case is

destroyed by the order dated 23-01-2023, since Anand is already

exonerated. The victim's testimony will have to be viewed with

extreme caution. Thus, the accused/appellant is innocent and must

be acquitted.

CONTENTION OF PROSECUTION :

26 of 50 (27) 930criapl1157.23

49. The learned APP has contended that the concept of '

Falsus in uno, falsus in omnibus" is not applicable in Indian law. The

case will have to be viewed from various angles, keeping in mind that

the victim was 14 years old at the time of the incident. She has not

disputed the order dated 23-01-2023 passed by this court in Criminal

Revision Application No. 296/2022. Still, she has stated that Anand's

role is distinguishable and, in fact, separable. She submitted that if

the victim's testimony, more particularly para 1 of the examination-

in-chief, is perused, it would reveal that the victim stated that the

accused Anand caught hold of her hand and that all the accused took

her to the house of Sagar. Thus, according to her, though there may

be a slight improvement, it will not go to the root of the matter. She

further contended that Anand's discharge will not take away the

entire incident, and the core case of the prosecution remains

unaffected. She also invited my attention to the charge framed and

has categorically stated that the charge itself would reveal about the

present appellant who had committed forcible sexual intercourse. So

far as the non-raising of an alarm by the victim when Anand caught

hold of her is concerned, the learned APP submitted that, in fact, the

victim stated in her testimony that she had shouted. She contended

that the fact cannot be ignored that, when the incident took place,

whether anybody heard the shouts or not can not be brought on

27 of 50 (28) 930criapl1157.23

record. She further contended that just because there are no

resistance marks on the body of the accused and the victim, it does

not mean the entire case is false. Just because the first information

report is not lodged immediately, it would not create doubt in the

case of the prosecution as the question was of prestige of the family

of the minor girl of 14 years of age. She submitted that political

rivalry is not brought to the record, and that the visit of politicians to

the victim's house is quite normal,but it does not mean that the case

is politically motivated. She categorically stated that she did not

receive any financial aid from the politicians.

50. She further contended that the testimony of the

prosecutrix is cogent and reliable since there are absolutely no

material omissions and contradictions. According to her, she could

have exaggerated her story and would have made similar allegations

against the other accused persons.

ANALYSIS OF ARGUMENTS:

51. It is necessary to mention here that the victim of the

crime was 14 years of age at the time of the incident. The victim has

been subjected to a detailed cross-examination by the defence,

conducted over several dates. The testimony of this witness shows

28 of 50 (29) 930criapl1157.23

that she has consistently deposed about the atrocity committed on

her. She has categorically stated that on the day of the incident, she

was taken forcibly into the room and subjected to forcible sexual

intercourse by the present appellant. In the cross-examination, also,

nothing has been brought on record to disbelieve her testimony. Most

of the cross-examination, which is narrated above, deals with the

incident which took place after the atrocity was committed. Just

because several political figures visited the victim does not mean the

case was politically motivated. Even otherwise, the victim and her

family could not have stopped any member of society from expressing

their support or visiting the house.

52 What is required to be seen is whether the victim's

testimony has a ring of truth. The victim's account of the incident, in

specific words, clearly shows that the testimony is beyond a

reasonable doubt. Defence of false implication due to political rivalry,

though it runs into several pages, cannot ignore the fact that the

victim has denied all the suggestions. Nothing has been brought on

record by the defence by examining any witness that there was a

political rivalry. Even otherwise, Indian parents, in peculiar facts and

circumstances, will not advance a false version of forcible sexual

intercourse to implicate a person, which would affect the entire life of

29 of 50 (30) 930criapl1157.23

the child. Prestige cannot be compromised, nor can human self-

respect, by lodging a false report.

53. As far as the contention of learned Senior counsel that

the victim did not raise hue and cry, suffice it to say that said victim

has raised the hue and cry, and just because nobody has come for

help, it does not mean that the offence was not committed . Whether

the screams were heard and whether, after hearing, the response was

given by the concerned person is not to be looked into. To prove the

offence of aggravated penetrative sexual assault, what is required to

be seen is whether the victim was subjected to forcible sexual

intercourse against her will or not. Not lodging the first information

report immediately, even though the victim's family members had

mobile phones, will also not go to the root of the matter. There is no

fixed formula for a particular situation; a particular response is not

required. Every person has a different view in different situations.

54. So far as the contention that against one of the accused

by name Anand, the charge-sheet was not filed, and during the

course of the trial, the application under section 319 of the Cr. P. C.

was moved, which was allowed by the learned trial court and which

order was set aside by this court; it is necessary to mention here that

30 of 50 (31) 930criapl1157.23

the concept of Falsus in Uno is not omnibus and is not applicable to

Indian law.

55. The prosecution's core case will have to be looked into.

In examination-in-chief, the victim has stated that accused Anand

caught hold of the hands of the victim, and all the accused persons

took the victim into the house. Thus, it cannot be said that the role of

Anand,one of the accused, and the other accused was so intertwined

that if the prosecution of Anand is set aside; it will logically result

into wiping out the prosecution of the present appellant also.

56. The Hon'ble Apex Court in the case of T. G.

Krishnamurthy & ors Vs the State of Karnataka and Ors reported in

2023 LiveLaw (SC)671 particularly para 7 has held as under:

"7. The principle governing 'falsus in uno, falsus in omnibus' has got no application to the courts in India. Therefore, it is the duty of the Court to remove the chaff from the grain in its pursuit for truth. As rightly held by the High Court PW-1, PW-27 and PW-28 are the injured eye witness. They were attached along with deceased No.1. The reasoning adopted for the acquittal of the accused qua the death of deceased No. 2 cannot be imported to that of the first accused and the injuries caused to the aforesaid three witnesses. Thus, we do not find any error in the approach adopted by the High Court."

57. There is one more reason for relying upon the testimony

of this witness. The incident in question occurred on 27-01-2021, and

31 of 50 (32) 930criapl1157.23

the first information report was lodged with the police station vide

crime No. 31/2021 on 28-01-2021. The delay of a few hours in the

cases wherein the child was subjected to forcible sexual intercourse

will not go to the root of the matter. The fact cannot be ignored that

the victim and her family members were residing in a small village,

and the incident has become a hot topic there; therefore, the

possibility cannot be ruled out that several persons gathered at the

police station. It is further necessary to note that the statement of the

victim was also recorded under Section 164 of the Code of Criminal

Procedure at page No. 138 below Exh. 34. In her statement, she has

narrated the incident as she has deposed before the court. Thus, the

testimony of the witness PW-1 is consistent and reliable. Thus, I

conclude that there is nothing to disbelieve the version of the

victim.

CHALLENGE TO THE TESTIMONY OF THE VICTIM ON THE TOUCHSTONE OF THE SPOT OF THE INCIDENT AND EVIDENCE OF PW-4-SHIVSHANKAR.

58. Mr Deshmukh, Learned Senior Counsel, has then invited

my attention to the testimony of PW-4, who was a panch to the spot

of the incident. In cross-examination, this witness stated that the

bedroom was 8 ft high and that the door was situated on the South

side. He stated that the wall of the room had an open access of 2-3 ft

32 of 50 (33) 930criapl1157.23

on the East-West side, and the adjacent to wall was the kitchen wall.

He also stated in his cross-examination that if one stands on the bed

in the room, they can easily see what is going on in the kitchen, and

the bedroom door is often open. This witness also admitted that, even

if the door is closed, a person can climb a wall and go outside. He,

thus, contended that there was every opportunity for the victim to

rescue herself, as the spot of the incident would reveal that there was

not only open space and one could come out of the room where the

victim allegedly was confined.

59. Per contra, learned APP submitted that there is no

arithmetical calculation, which can be applied by appreciating the

testimony of this witness. There is an open space, and a man can

rescue himself by climbing the wall; climbing the wall is very general.

She submitted that the spot witness's testimony must be taken as a

whole.

60. The contention of the learned counsel for the accused

prima facie seems attractive but further scrutiny would reveal that it

will not come to the rescue of the accused; the reason is that the

witness, i.e., the panch witness who has deposed, is a man of 27

years. The victim's height is not brought on record. The victim was 14

years old at the time of the incident. Whether she was in a physically

33 of 50 (34) 930criapl1157.23

fit condition to come out of the open space or not , could have been

well brought on record by the defence in cross-examination. Just

because a part of the testimony shows that there was an opportunity

for the victim to rescue herself, the same cannot be considered in

isolation. As already stated, the spot must be correlated with the

victim's physical condition, including height. In the absence of any

specific details on that ground, the benefit cannot be extended to the

accused.

CHALLENGE TO THE TESTIMONY OF THE MEDICAL OFFICER :

61. Mr Deshmukh, learned Senior Counsel, then invited my

attention to the testimony of PW-8 and PW-9. PW-8 is the witness by

the name Dr Akanksha, who has stated that on 28-01-2021, she was

a Medical Officer attached to the Primary Health Centre, and another

Medical Officer was Dr Avinash. She examined the victim since the

concerned police officer had brought the letter, which is below Exh.

85. Consent from the victim and her mother was obtained. OPD case

papers were produced, which are below Exh. 86. She then examined

the victim, and notes were recorded in the handwriting of Dr

Avinash. Both of them signed the relevant papers. The victim gave a

history and disclosed that Anand caught hold of her hand and took

her to Sagar's house and locked her in a room at about 02.00 pm.

34 of 50 (35) 930criapl1157.23

After 1 hour, Sagar came and removed her clothes, though she

refused multiple times, Sagar removed her clothes and did

penetrative sexual intercourse with her. Sagar then went out and

committed a similar act an hour later. She also stated that two people

were present.

62. PW-8 had admitted that in the physical examination, she

did not find any external injuries, and she referred the victim for

expert Gynecological opinion. A letter for the examination of the

witness to the victim by the Gynecologist was then shown to her,

which she signed and proved below Exh. 87. On 28-01-2021, Dr.

Gaikwad was in charge, and a letter was issued by Dr. Gaikwad in the

form of a question to the Medical Officer, which is below Exh. 88. In

reference to the letter Exh. 88, case papers with examination and

findings were received from the Civil Hospital, which was identified,

and the original papers marked below Exh. 89. This witness stated

that from the observations in Exh. 89, noting of it, it was taken under

clause 18 of the medico-legal examination report.

63. She stated that the hymen had irregular rupture margins,

with bruising and signs of inflammation. There were minimal signs of

inflammation in the future clause of the perineum. The perineum was

found normal, and it is recorded in the clause below the perineum

35 of 50 (36) 930criapl1157.23

clause. Those notes in clause 18 were made on 30-01-2021. This

witness stated that other observations and a written report were

made on 28-01-2021, at the time of examination by the said witness,

and that the handwriting in the report was Dr. Gaikwad. She

submitted that the provisional opinion at clause 22 and the final

opinion at clause 25 were written on 30-01-2021. As per the opinion

given by the Gynecologist from the District Hospital, Osmanabad, she

gave a final opinion that overall findings about the said patient are

consistent with sexual intercourse/assault. However, the final opinion

is kept pending until receipt of the FSL report. She then proved the

said report dated 30-01-2021, below Exh. 90. This witness was

shown the mini FSL report, Exh. 36 & 37, which had negative

findings. Due to the post-history noted at clause 15F, she stated that

the findings in Exh. 37 may be negative. She deposed from all the

papers; it is conclusive that there may be sexual intercourse with the

victim.

64. Pointing out the cross-examination, Mr Deshmukh

contended that the witness had contended that the victim was from

her village, and in the MLC report, the signature of the mother of the

victim was not taken. He also contended that in cross-examination,

this witness had stated the victim was resisting, reflecting the act of

36 of 50 (37) 930criapl1157.23

the accused. There is a possibility of at least abrasions to any one of

them. She did not notice any bleeding on the victim's clothes or body.

She stated that she did not notice any injury to the vagina. She

denied the suggestion that clause 18 examination of the genital parts

at the hymen, the word 'ruptured' is later introduced between the

words irregular margin or rupture of the hymen. The attention of

court was invited to page 248 of the paper book to submit that the

word 'rupture' was written thereafter.

65. Mr Deshmukh has submitted that this witness has

admitted that in the said period, there was a tense atmosphere in the

village and there were processions, the village shut down and rasta

roko, etc. He thus submitted that the medical evidence is also

planted, since the procedure is not at all followed. There is no

definite opinion, and there are also no resistance marks.

66. He further challenged the testimony of PW-10 -Doctor

Avinash, who on 28-01-2021 was attached as Medical Officer at

Primary Health Centre. He stated that PW-8 was with him and PW-8

had examined the victim, and he noted observations about the

examination. He was shown Exh. 90, the Medico-Legal Examination,

which was in his handwriting. He also examined the accused, who

told him that there was sexual intercourse between him and the

37 of 50 (38) 930criapl1157.23

victim, and the accused had also told him that there were two

ejaculations. He identified Exh. 98, the medical examination form for

the accused. CA reports Exh. 38 & 39 were shown to him, and it was

shown that the blood group of the present appellant was of Group B.

The CA report Exh. 39 shows the bed sheet with samples of semen

with blood type B. In cross-examination, attention was invited to the

fact that PW-10 was also a native of the Andoor village and had been

appointed by the Government of Maharashtra. He also admitted that

Dr Gore was his wife. He also admitted that in Exh. 90, clause 25, the

date of the opinion is not written. He has not given OPD papers.

67. Mr Deshmukh, learned Senior counsel, has stated that

the admission of this witness, that his father had worked with

Kashinath for 10 years previously, which clearly shows that the

medical examination cannot be relied upon. This witness has also

admitted that at the time of the case, the village atmosphere was

tense. He thus contended that both the testimony of PW-8 and PW-10

cannot be relied upon, as it means suspicion.

58. PW-9 Dr Bansode, who was attached to the Civil

Hospital, Osmanabad, and the patient/victim was brought to her,

who was referred to a Gynecological opinion. She examined the

victim. All other basic vital examinations were normal. On her local

38 of 50 (39) 930criapl1157.23

examination, she found an irregular hymen with signs of rupture,

bruising, and inflammation. The remaining observations were

normal. She noted those findings on IPD papers. The pregnancy test

was negative. Blood samples for basic tests were taken. Sonography

was made. The psychiatrist's opinion was normal. Radiological and

dental X-rays, as well as bone X-rays, were advised, and the report

and opinion were received. She then sought a Gynecologist's opinion

and age determination. She gave a Gynecological opinion on IPD

papers on 29-01-2021, at Page-3, Exh. 89, in her handwriting. She

had brought the original IPD papers with her. She issued an age

determination report, which was shown to her, where she identified

her signature below Exh. 93. Radiological Bone Age Assessment

formant report at Exh. 89, page 11, and its original was brought on

record in the court. She stated that the original was in Dr Kawade's

handwriting, whose signature she identified as having been used

when they were working together. His opinion was that the patient

was aged 14 to 16 years. As she admitted the opinion of the

Gynecologist, she gave the opinion that she could not say whether it

was a sexual attack. From the injuries she observed in local

examination, they can be caused by sexual intercourse. She admitted

that observations such as bruising or rupture of the hymen, an

irregular margin, and signs of inflammation can be due to different

39 of 50 (40) 930criapl1157.23

causes, including infection of the urogenital area. Hymen

irregularities can be caused by physical activities or, more commonly,

by birth. Penile penetration is not the only cause for those

observations, but there can also be other causes that appear to cause

those observations. According to those local examinations, it can be

caused by any other blunt trauma. She admitted there is an age limit

for injury, but did not specify it. Pointing out the aforesaid part of the

testimony of the medical officer, Mr Deshmukh, learned Senior

counsel has contended that the court may unfavourably view, the

prosecution's PW-8 and PW-10 as planted medical evidence as PW-9

stated injuries may occur due to other reasons. He thus submitted

that the accused casts doubt on the prosecution's case. His client be

acquitted.

69. Per contra, learned APP submitted that there is

absolutely nothing to disbelieve PW-8, PW-9 and PW-10, the

admission on the part of the PW-8 and PW-10 that they belonged to

the said village clearly shows that the testimony was truthful. She has

submitted that though PW-9 has stated that there can be several

reasons for injury, which have been noticed, it is not even the case of

the accused that the victim had suffered injuries due to other

reasons.




                                                                    40 of 50
                             (41)                      930criapl1157.23

70. Be that as it may, what is required to be kept in mind is

whether the ingredients of the offence are fulfilled or not.

71. For arriving at said conclusion, what is of the utmost

importance is the testimony of the witnesses. The opinion of the

medical officer may corroborate, but it is not the thumb rule that, in

every case, the victim's testimony requires corroboration. The court is

required to determine whether the prosecution's testimony has a ring

of truth. Even otherwise, an injury may not be necessary for proving

the offence of aggravated penetrative sexual assault. Slightest

penetration would also attract the ingredients of the offence. In the

case in hand, the victim has categorically stated that she was

subjected to forcible sexual intercourse. It is not even the case, as the

accused has advanced in cross-examination, that the injuries were

caused for different reasons. Thus, the testimony of PW-8, PW-9, and

PW-10 in fact corroborated the testimony of the victim that she was

subjected to forcible sexual intercourse.

MANNER IN WHICH INVESTIGATION WAS CONDUCTED BY THE PROSECUTION:

72. Mr Deshmukh, learned Senior counsel, has contended

that the manner in which the prosecution has conducted this case

would reveal that all canons of fair investigation are violated. He

41 of 50 (42) 930criapl1157.23

submitted that the Investigating Officer recorded Nagini's statement

by name on 29-01-2021. That witness was intentionally not

examined by the prosecution.

73. He then invited my attention to the cross-examination of

the PW-13-Musa, who was working on the post of the Police Sub-

Inspector with Naldurga Police Station. By inviting my attention to

the para 15, he submitted that PW-13, had categorically stated that

he had recorded the statement of Nagini, and the contents therein

were recorded as per the say of the Nagini, which was below Exh.

126. He further contended that the cross-examination of this witness

would reveal that the Investigating Officer neither recorded the

statement of the sister of the victim nor seized the copy/register or

pen. Investigating Officer did not take any trouble to record the

statement of the most important witness, i.e., Vaishnavi, towards

whose house the victim was proceeding. He again contended that the

witness had admitted that after the incident, the village was closed

for a period, and the villagers had taken a procession to the police

station, demanding the arrest of the accused. The learned Senior

counsel has further contended that the cross-examination of this

witness shows that several houses were situated near the incident

site, and that the area was crowded. Pointing out the aforesaid

42 of 50 (43) 930criapl1157.23

lapses, he submitted that the lapses in the investigation have not

stopped at the testimony of PW-13 but have percolated into the

further investigation.

74. PW-14-Sudhir is the second Investigating Officer, in the

cross-examination he admitted that after handing over the

investigation to him, he had been to the house of the victim, where

the sister, brother, aunt, two daughters of the aunt, and the mother

and grandmother were present. He went to the victim's house, but he

did not record the statements of those persons , victim's neighbours

and statement of Anand. Neither did he seize the mobile phone

from the sister of the victim. He further contended that the

statements of village Nilesh, Narayan Sanjay, and Umesh were

recorded and shown to him. He admitted that they were recorded

according to the versions of those persons and were exhibited below

Exh. 134, 135, 136 & 137. At which stage, the learned prosecutor

before the trial court took an objection for exhibiting the statements.

75. Mr Deshmukh, learned Senior Counsel, thus contended

that the investigation was not carried out fairly. Further, the

prosecution did not examine any independent witnesses who could

have shed light on the case.





                                                                 43 of 50
                             (44)                      930criapl1157.23

76. Mrs Deshmukh learned that APP has contended that

neither the prosecution nor the investigation was conducted in a

biased manner. She contended that there was every opportunity for

the accused to examine the witnesses in defence, but it was not done.

Just because a few persons are not examined does not mean that the

investigation/prosecution is tainted.

77. Learned APP submitted that the investigation and the

prosecution were conducted fairly and properly. She submitted that

this witness has in fact collected CCTV footage showing that the

accused, Anand, was not at the scene of the incident and the accused

Anand, was not charge-sheeted.

78. I have given my thoughtful consideration. Just because

some of the witnesses, though mentioned in the list of witnesses in

the charge-sheet, are not examined, would not mean that the

prosecution is tainted. It is for the prosecution to prove its case. The

defence had ample opportunities to call the witness in favour;

sufficient opportunity is given under Cr. P. C. to the accused, by

means of various provision . In the statement recorded under Section

313, the accused persons were specifically asked whether they

wished to examine themselves or any defence witness, and they

replied in the negative. It is further necessary to mention that

44 of 50 (45) 930criapl1157.23

statements of witnesses recorded under Section 161 and those

witnesses who have not entered the witness box cannot be taken into

consideration. Consequently, Exh. 134, 135, 136, 137 i.e. statements

of witnesses recorded under Section 161 of code of criminal

procedure , so also statement of Nagini have absolutely no

evidentiary value. Even otherwise, it will have to be seen whether

lapses in the investigation go to the root of the matter. Minor

irregularities in carrying out the investigation would not be sufficient

to create a doubt in the case of prosecution.

79. At this juncture, it is necessary to consider what is the

meaning of 'reasonable doubt'. The Hon'ble Apex Court in the case of

Jainul VS State of Bihar, with connected appeal reported in 2025

LiveLaw (SC) 979, has dealt with the aforesaid aspect. Relevant para

would be para 81 , which reads as under:

"81. In Ramakant Rai v. Madan Rai, reported in (2003) 12 SCC 395, this Court explained the meaning of "reasonable doubt". It means doubts that are free from abstract speculation, not the result of an emotional response, and actual and substantial doubts about the accused person's guilt, not vague apprehensions. It cannot be an imaginary, trivial or a possible doubt, but a doubt based upon reason and common sense. The relevant observations have been reproduced hereinbelow:-

"23. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the

45 of 50 (46) 930criapl1157.23

evidential standard of proof beyond a reasonable doubt.

Though this standard is higher, there is no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Referring to (sic) of probability amounts to "proof" is an exercise, the interdependence of evidence and the confirmation of one piece of evidence by another, as learned author says : [see The Mathematics of Proof II: Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)] "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."

24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.

25. The concepts of probability and the degrees of it cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond a reasonable doubt.





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There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection afforded by the criminal process to accused persons is not to be eroded, the uninformed legitimisation of trivialities would make a mockery of the administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302:

1988 SCC (Cri) 928: AIR 1988 SC 2154] ."

(Emphasis supplied)

80. Aforesaid observations would reveal that reasonable

doubt means doubts that are free from abstract speculation, not a

result of an emotional response, which are actual and substantial

doubts on the guilt of the accused person, and not vague

apprehensions. If the aforesaid observations are taken into

consideration, it would reveal that, in fact, there is no reasonable

doubt in the case advanced by the prosecution. The testimony of the

victim is of a sterling nature and, therefore, is not required to be

viewed with suspicion.

81. Thus, I conclude that the prosecution has proved that the

appellant has committed an offence under Section 6 of the Act of

2012.

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82. The conviction was also Sections 363 and 342 of the

IPC. Section 363 of the IPC prescribed punishment for Kidnapping.

Section 359 defines kidnapping; kidnapping is of two kinds:

kidnapping from (India), and kidnapping from lawful guardianship.

83. Section 361 defines kidnapping from lawful

guardianship; whoever takes or entices any minor under 16 years of

age if a male, or under 18 years of age if a female, or any person of

unsound mind, out of the keeping of the lawful guardian of such

minor or person of unsound mind, without the consent of such

guardian, is said to kidnap such minor or person from lawful

guardianship.

84. Further, conviction is under Section 342 of the IPC,

which prescribes the punishment for wrongful confinement.

Wrongful confinement is defined under section 340, which means

whoever wrongfully restrains any person in such a manner as to

prevent that person from proceedings beyond certain circumscribing

limits, is said 'wrongfully to confine' that person.

85. Section 339 defines wrongful restraint, which means

whoever voluntarily obstructs any person to prevent that person from

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proceeding in any direction in which that person has a right to

proceed, is said wrongfully to restrain that person.

86. Testimony is already discussed that on the day of the

incident, when the victim was proceeding towards the house of her

friend, at that time, the accused Anand caught hold of the victim's

hand, and thereafter, all persons took her to the house of the present

appellant. The victim was confined to a room, which is also

discussed. Thus, it is crystal clear that the victim was not allowed to

proceed in any direction in which she had the right to proceed. The

victim was further kept in a room, which consequently follows that

she was restrained from proceeding beyond certain circumscribing

limits. Testimony further shows that the accused persons dropped the

victim. The victim has further stated that the act was committed

against her will and consent. Even otherwise, the victim was a minor

in the eyes of the law; the consent of a minor is, in fact, no consent,

as recognised under the Act of 2012.

87. Thus, prosecution has rightly proved the ingredients of

the offence punishable under Section 6 of the Act of 2012 and under

Sections 363 and 342 of the IPC.





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88. In that view of the matter, I find that the trial court has

correctly and properly appreciated the evidence, and there is

absolutely no reason to take a different view. Having said so, I pass

the following order: