Suresh S/O. Vithobaji Gabhane vs State Of Mah. Thr. The Officer In Charge, ...
2026 Latest Caselaw 1042 Bom

Bombay High Court

Suresh S/O. Vithobaji Gabhane vs State Of Mah. Thr. The Officer In Charge, ... on 30 January, 2026

2026:BHC-NAG:1483




                                                  1                3-cri.appeal 512-23,J.odt

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH : NAGPUR
                             CRIMINAL APPEAL NO.512/2023
              Suresh Vithobaji Gabhane
              aged about 52 Years, Occup.Labour
              r/o At Khardi Ward, Arvi, Tah.Arvi,
              district Wardha.                                  Appellant
                     - Versus -
              1. State of Maharashtra,
                 through the Officer-in-charge,
                 Police Station Arvi, Tah.Arvi
                 District Wardha.
              2. X.Y.Z.
                 Victim in Crime No.903 of 2019
                 P.S.Arvi,Wardha.                               Respondents

                                     -----------------
              Mr. Nihal Singh S.Rathor, Advocate for the Appellant.
              Mr.U.R.Phasate,A.P.P. for Respondent No.1/State.
              Ms.Radha M.Mishra, Advocate (appointed) for Respondent
              No.2.
                                     ----------------
              CORAM: NEERAJ P. DHOTE, J.
              DATE OF RESERVING THE JUDGMENT:   16.01.2026.
              DATE OF PRONOUNCING THE JUDGMENT: 30.01.2026.

               JUDGMENT

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

Criminal Procedure (henceforth referred to as "Cr.P.C." for short)

against the Judgment and Order dated 06.06.2023, passed by the 2 3-cri.appeal 512-23,J.odt

learned Additional Sessions Judge Wardha, in Special (POCSO) Case

No.29/2020 convicting and sentencing the Appellant as follows:-

1] For an offence punishable under Sections 376(AB), 506 of IPC, 3(b) p.u/s.4 and 5(m) p.u/s.6 of POCSO Act, vide Section 235 (2) of the Code of Criminal Procedure.

2] Accused is sentenced to undergo rigorous imprisonment for period of 10 (Ten) years and pay fine of Rs.10,000/- (Rs.Ten Thousand only) for the offence punishable under section 3(b), p.u/s.4 of POCSO Act. In default of payment of fine, accused is further sentenced to undergo rigorous imprisonment for period of 2(Two) years.

3] Accused is sentenced to undergo rigorous imprisonment for period of 20(Twenty) years and pay fine of Rs.15,000/- (Rs.Fifteen Thousand only) for the offence punishable under section 5(m), p.u/s.6 of POCSO Act. In default of payment of fine, accused is further sentenced to undergo rigorous imprisonment for period of 2(Two) years. In view of provision laid down of section 42 of POCSO Act, no separate punishment is given for offence punishable under section 376(AB) of IPC.

4] Accused is sentenced to undergo rigorous imprisonment for period of 1(one) year and pay fine of Rs.2000/- (Two Thousand) for the offence under section 506 of 1.P.C.. In default of payment of fine, accused is further sentenced to undergo rigorous imprisonment for period of 1(one) month.

5] All substantive sentences shall run concurrently.

      6]     .....
      7]     .....
      8]     .....
      9]     .....

2)           The prosecution's case, as revealed from the police

report, is as under:-
                                      3                 3-cri.appeal 512-23,J.odt

The Victim aged nine years was residing with her parents.

Victim's School timings were from 10.00 a.m to 5.00 p.m. After the

School, she used to play outside her house. The Appellant is the

resident of the same locality. On 24 th December 2019, around 5.30

p.m, when the Victim was playing in front of the temple in the same

locality, the Appellant came near her and sexually abused her and

threatened not to disclose the said fact to anybody, else he will kill

her. The Victim told the incident to the witness Phula Aaji, who was

the resident of the same locality. The said witness informed the

Victim's mother about the incident. The Victim's mother asked the

Victim about the incident and Victim narrated the same to her. The

Victim's mother lodged the report against the Appellant with the

Arvi Police Station, District Wardha and Crime bearing No. 903 of

2019 came to be registered against the Appellant for the offence

punishable under Sections 376(AB), 506 of the Indian Penal Code

(for short IPC) and for the offence punishable Under Section 4 and 6

of the Prevention of Children From Sexual Offences Act (for short

POCSO),2012.

3) The statement of the Victim came to be recorded. The Victim

was sent for medical examination. The statement of the witnesses

were recorded. The Appellant came to be arrested and sent for the 4 3-cri.appeal 512-23,J.odt

medical examination. The Spot Panchnama was drawn. The blood

samples of the Victim and that of the Appellant were collected. The

documents in connection with the age of the Victim, medical papers

and other relevant documents were seized during the course of the

investigation. The Appellant came to be charge-sheeted.

4) On committal, the learned Trial Court framed the Charge

below Exhibit 14 against the Appellant for the offence punishable

under Sections 376(AB) and 506 of the PIC, offence under Section

3(b) punishable under section 4 of the POCSO Act and offence

under Section 5(m) punishable under Section 6 of the Protection of

Children from Sexual Offences Act, 2012. The Appellant pleaded not

guilty and claimed to be tried. To prove the charge, the prosecution

examined nine witnesses. Panch Raju Devraoji Sukalkar, is examined

as PW-1 for the spot panchnama, seizure of the clothes of the Victim

and for the blood samples. The informant-mother of the Victim is

examined as PW-2. The Victim is examined as PW-3. The Witness

Phulabai Ashokrao Wankhade is examined as PW-4. The Medical

Officer Dr. Vandana Wawre, who examined the Victim is examined as

PW-4. The Medical Officer, Doctor Narendrakumar Shamsundar

Gupta, who has examined the Appellant, is examined as PW-6. The

child witness, who was playing with the Victim at the relevant time 5 3-cri.appeal 512-23,J.odt

is examined as PW-7. The photographer Prakash Maniram Sahare is

examined as PW-8. The Investigating Officer, Ms.Kavita Ashokrao

Fuse is examined as PW-9. The relevant documents were not brought

on record in the evidence of the aforesaid witnesses.

5) On closure of the evidence by the prosecution, the Trial

Court recorded the statement of the Appellant under Section 313(1)

(b) of the Cr.P.C. The Appellant stated that, he was falsely

implicated. The Appellant examined the defence witness Mrs. Megha

Ramesh Bbhoyar. The learned Trail Court on appreciation of the

evidence on record passed the impugned judgment and order

convicting and sentencing the Appellant as above.

6) Heard the learned Advocate for the Appellant, the

learned APP for the State and the learned Advocate appointed for

the Victim. Scrutinized the evidence available on record.

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

that, the age of the Victim was not disputed. Though the incident

is claimed to have been taken place at the public place, no

independent witness is examined. The evidence of the informant

and that of the witness Phulabai contradict each other on material

aspect. The testimony of the Victim was not recorded in question

and answer form. The Victim admitted that, she was tutored by her 6 3-cri.appeal 512-23,J.odt

mother. There is improvisation by the Victim on material aspects.

Though the Victim deposed that, she gave a bite on the hand of the

Appellant, the medical evidence do not support the said version of

the victim. Though the child witness is examined as PW-7 that, he

was playing with the victim at the relevant time, the Victim's

evidence do not show his presence. The testimony of the Victim was

completely unreliable and uncorroborated. The Appellant

examined the defence witness to show that, on the day of the

incident, he was at his work place. Considering the evidence on

record, the Appellant deserves to be acquitted.

8) It is submitted by the learned APP that, the evidence of

the defence witness do not inspire confidence. The defence witness

was the interested witness. The learned Trial Court rightly rejected

the evidence of the defence witness, as it was vague in nature. The

child witness present with the Victim at the relevant time has been

examined. The testimony of the Victim was consistent on the

material aspect. Being of her tender age, some variations are bound

to be there as the incident was of 2019 and she was examined in

2022. The cross-examination do not impeach the credit of the

Victim. The conduct of the victim was natural. The defence of

enmity was not supported by any material. There is no suggestion 7 3-cri.appeal 512-23,J.odt

that, the Victim was tutored. The demeanor of the Victim was

recorded by the learned Trial Court. No injuries on the Victim was

immaterial as it is not possible that, the injuries will always be

caused. Non examination of the persons residing nearby is of no

consequence. The prosecution proved the charge beyond doubt and

the Appeal be dismissed.

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

that, the Victim was the child. The Victim deposed about the

incident. There is evidence of the another child witness, who was

playing with the Victim. The evidence of the Victim was consistent.

The absence of the injury on the Victim can be no reason to discard

her testimony. Considering the evidence available on record the

Appeal be dismissed.

10) When the charge is for the Penal Sections of POCSO, it

becomes necessary for the prosecution to establish that, the Victim

was a child as defined under Section 2(d) of the POCSO. Though the

prosecution has brought on record the copy of birth certificate issued

by the Municipality School Arvi, below Exh.57 and 58, witnesses to

prove the said documents are not examined. It is true that, the birth

certificate would be the public document, however, when there is

serious challenge to it by the Appellant, it was necessary for the 8 3-cri.appeal 512-23,J.odt

prosecution to prove the same by examining the relevant witness.

The prosecution relies on the testimony of the informant, who is the

mother of the Victim. In her testimony, she has not deposed about

the date of birth of the Victim. She deposed that, the Victim was 8-9

years old at the relevant time. However, there is no challenge to the

said evidence of the informant in respect of the age of the Victim.

Considering the cross-examination of the witnesses, done on behalf

of the Appellant, it clearly goes to show that, the prosecution's case

that, the victim was a child was not disputed. Even the learned

Advocate for the Appellant submitted that, there was no dispute as

regards the age of the Victim and that she was the child at the

relevant time.

11) The prosecution's case rests on the testimony of the

Victim. The Victim is examined as PW-3. The observations made by

the learned Trial Court before recording the Victim's testimony

shows that, primary questions were put to the Victim and the

learned Trial Court found that, she was properly answering the

questions and was having sufficient understanding and knew the

sanctity of oath and oath was administered to her before recording

her testimony. The Victim's evidence shows that, she knew the

Appellant as he was residing in the locality, where she was residing.

9 3-cri.appeal 512-23,J.odt

There is no dispute in respect of the identity of the Appellant.

According to the Victim on the day of the incident, her mother had

gone to the shop as usual. After coming from the School, she was

playing with her friends in Hanuman Temple, which was very near

to her house. The Appellant puller her right leg, the Appellant

embarrassed her, the Appellant pressed her breast and the Appellant

pressed her neck. The Appellant inserted his finger in her vagina

and also in her anus. She shouted. The Appellant gagged her mouth.

She bite the Appellant and rescued herself. She did not narrate the

incident to any one on that day. On the next day, as her leg was

paining and she could not get up, she narrated the incident to

Phulabai (PW-4) who informed the Victim's mother. The Victim's

evidence further shows that, the report was lodged by her mother.

She was taken to the hospital. She was admitted for a day. Doctor

enquired her about the incident. Her statement was recorded by the

Police and by the Magistrate.

12) The cross-examination of the Victim shows that her

testimony that, she was playing with her friends, she bite the

Appellant, the Appellant pressed her neck were the omissions. It has

come in the cross-examination that, as she was scared, she did not

narrate the said aspects (Omissions) in her statement. She gave the 10 3-cri.appeal 512-23,J.odt

explanation to the same. She denied the suggestion that, the spot of

the incident was crowded place. Suggestions and false implications

at the instance of her maternal uncle is denied. To the question as to

whether her mother enquired with her as to why she was not getting

up, she answered that, she told her mother that, she had fallen

down. Though, she deposed in her cross-examination that, at the

time of her statement before the Magistrate, her mother had tutored

her, prior to that, she denied the suggestion that, she was tutored by

her mother. Therefore, the said admission of tutoring will not affect

her testimony. The demeanor of the Victim, which is recorded by the

learned Trial Court, shows that while, cross-examination the Victim

cried and when inquired by the learned Trial Court, she replied that

she was feeling scared. Being a child witness, some minor

inconsistencies are not fatal. The evidence of the victim shows that,

her evidence in respect of the incident was consistent with her

previous statement. The above referred omissions will not affect her

evidence in respect of the incident. Her testimony is natural and

remained unshaken in the cross-examination.

13) The evidence of PW-4 Phulabai Wankhade shows that, she

knew the Appellant and the Victim as they were resident of the same

locality, where she was residing. Her evidence shows that, prior to 11 3-cri.appeal 512-23,J.odt

two years, in the month of December in the afternoon, when she was

outside of her house, the Victim came crying and limping and when

she enquired with the Victim, the Victim narrated the acts committed

by the Appellant with her. Her evidence shows that, the Victim was

in a frightened stage. She consoled the Victim and informed her

mother, when her mother came home. Her cross-examination shows

that, she had conversation with the Victim's mother on the day of

the incident. The minor omissions do not affect her testimony that

the Victim narrated the incident to her on the day of the incident.

This PW-4 denied the suggestion that, her relations with the

Appellant were sore. The testimony of this witness is found to be

consistent with her previous testimony. The evidence of the Victim

and that of this PW-4 shows that, the first disclosure of the incident

was made by the Victim to this witness. The first disclosure of the

incident is consistent with the testimony of the Victim.

14) The evidence of the PW-1-Raju Sukalkar shows that, he

acted as a Panch for the spot panchnama below Exh.28. The spot

was the premises of Hauman Temple. The Spot panchnama

corroborates the testimony of the Victim in respect of the place of

the incident. The spot panchnama goes to show that, the place of 12 3-cri.appeal 512-23,J.odt

the incident was such that, there was less possibility of the crowed

present over there.

15) There is evidence of PW-4 Dr. Vandana Waware, which

shows that, on 26.12.2019, the Victim was brought for medical

examination. The Victim was accompanied by her mother. She

recorded the history of the incident and medically examined the

Victim. She found that, the Gait of the Victim was 'limping gait'. She

issued the medical certificate below Exh.52. Her cross-examination

shows that, she did not find any mark of pressing over the chest of

the Victim and handling over genital region by finger. The other

suggestions are denied. The history given by the Victim to this

witness before examination corroborates her testimony. The Victim's

evidence that, there was pain in her leg and the testimony of PW-4

Phulabai Wankhade that, the Victim was limping, is well

corroborated by the medical evidence. In the light of the evidence

discussed above, absence of injury marks on the person of the Victim

is of no consequence.

16) The evidence of Victim's mother, who is examined as

PW-2 shows that on 25th December, 2019 she came to know about

the incident, which took place a day prior. Her evidence shows that,

she set the criminal law in motion against the Appellant by filing 13 3-cri.appeal 512-23,J.odt

First Information Report, which is at Exh.40. She denied that, there

was enmity between PW-4 Phulabai and the Appellant.

17) The prosecution has examined the friend of Victim Suraj

Aglawe as PW-7. Though he deposed that, he was playing with the

Victim and other friends and the Appellant took the Victim inside the

temple, his cross-examination shows that, his evidence was in the

form of improvements. Thus, the evidence of this witness is kept out

of consideration.

18) The Appellant has examined the defence witness to show

that, on the day of the incident he had gone for work as a

construction labour with the defence witness, who was the labour

contractor. The cross-examination of the defence witness shows that,

she did not have the registration of her work, though she had

insured five to six labours. She did not insure the Appellant as a

labourer. He did not issue any labour card to the Appellant and she

had no documentary evidence to show that, the Appellant worked

with her as a labour. The evidence of this defence witness do not

inspire the confidence. The Appellant failed to rebut the

presumption under Section 29 of the POCSO Act.

19) The above discussed evidence of the Victim, PW-4 Phulabai

and the medical evidence established that, on the day of the incident 14 3-cri.appeal 512-23,J.odt

the Victim was sexually abused by the Appellant. The aforesaid

evidence is consistent with each other. Nothing has come in the

cross-examination so as to create any dent in the evidence of the

aforesaid three witnesses i.e. the Victim, Phulabai and the Doctor.

The evidence discussed above, establishes the penetrative sexual

assault defined under Section 3 of the POCSO Act. Since, the Victim

was below the age of 12 years, at the time of the incident, the

provisions of Sections 5(m) of the POCSO Act, are made out. The

present act of the Appellant comes within the definition under

Section 375 of the IPC. The sentence awarded by the learned trial

Court is in-consonance with the law. On re-appreciation of the

evidence on record, the conviction and sentence imposed by the

learned Trial Court do not call for any interference. The Appeal

fails. Hence, the following order:

ORDER

i) The Criminal Appeal stands dismissed.

ii) The Record and Proceedings be sent back to the learned Trial Court.

iii) The fees of the learned Advocate appointed for the respondent No.2 is quantified to Rs.10,000/-.

(NEERAJ P. DHOTE, J.)

Kavita

Signed by: Kavita P Tayade Designation: PS To Honourable Judge Date: 30/01/2026 12:33:21