[Cites 12, Cited by 0]
Bombay High Court
Sonu S/O. Premdin @ Ramaji Prajapati (In ... vs State Of Mah. Thr. Pso, Kanhan, Tah. ... on 14 January, 2026
2026:BHC-NAG:510
1 apeal586.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.586/2023
Sonu S/o Premdin @ Ramaji Prajapati,
(presently in jail)
age about 28 Yrs., Occu. Driver,
R/o Kamptee Collery No.4,
Kanhan, Tah. Parshioni, Distt. Nagpur. ... Appellant
- Versus -
1. State of Maharashtra,
through PSO Kanhan,
Tah. Parshioni, Distt. Nagpur.
2. XYZ, Crime No.247/2018,
PSO Kanhan, Tah. Parshioni,
Distt. Nagpur. ... Respondents
-----------------
Mr. Sameer S. Das, Advocate for the Appellant.
Mr. Ujjwal R. Phasate, Additional Public Prosecutor for Respondent
No.1/State.
----------------
CORAM: NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT: 08.01.2026.
DATE OF PRONOUNCING THE JUDGMENT: 14.01.2026.
JUDGMENT
This is the Criminal Appeal under Section 374 (2) of the Code
of Criminal Procedure (for short "Cr.P.C.") against the judgment and
order dated 6.1.2023, passed by the learned Extra Joint Additional
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Sessions Judge, Nagpur in Special (POCSO) Case No.218/2018
convicting and sentencing the Appellant as follows:-
For the offence under Section 5(m) punishable under
Section 6 of the Protection of Children from Sexual Offences Act,
2012 (for short "POCSO Act") to suffer rigorous imprisonment for
10 years and fine of Rs.2,000/-, in default to pay fine, to undergo
rigorous imprisonment for 2 months.
2. The prosecution's case, in brief, as revealed from the police
report, is as under:-
a) The Informant was residing with her family, comprising
husband, three daughters including the Victim and her in-laws at the
address given in the report. The Victim, who was a child, was
staying in the 6th standard. On 14.7.2018, around 14 Hrs., when
the Informant was present at home, Victim came crying. On asking,
the Victim informed her that, while she was playing, the Appellant
met her and gave his mobile phone to her and asked her to put it for
charging in his house. Accordingly, the Victim went to the house of
the Appellant. The Appellant followed her and made her to lie down
on the cot. The Appellant lowered the pant of the Victim and
applied oil on her private part and inserted his finger in her private
part. The Victim cried and came home. On hearing the said incident,
the Informant went to the house of the Appellant, however, he was
not present there. The Victim's father came home from the
agricultural field. The Informant went to the Police Station and
lodged the report against the Appellant and Crime bearing
No.0247/2018 came to be registered against the Appellant for the
offence punishable under Sections 376(2)(j), 376-A and
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376-B of the Indian Penal Code (for short "I.P.C.") and for the offence
punishable under Sections 4, 5(m) and 6 of the POCSO Act.
b) The statement of the Victim was recorded. The
spot-panchanama was carried. The Appellant came to be arrested.
The Victim was referred for the medical examination. The statement
of the Informant and the Victim came to be recorded under Section
164 of the Cr.P.C. The clothes and the other articles were seized. The
statement of witnesses were recorded. The articles were sent to the
Chemical Analyzer. The relevant documents were collected. On
completion of the investigation, the Appellant came to be
chargesheeted.
c) On committal, the learned trial Court framed the Charge
against the Appellant for the offence punishable under Section 6 of
the POCSO Act and for the offence punishable under Section 376(2)
(i) of the I.P.C. to which the Appellant pleaded not guilty and came
to be tried. To prove the Charge the prosecution examined the
following witnesses:-
1) The Informant as P.W.1,
2) The Victim as P.W.2,
3) The Medical Officer who examined the Victim as P.W.3,
4) The Aunt of the Victim as P.W.4,
5) The Panch witness, Santosh P. Yadav, for the spot and seizure
panchanamas as P.W.5,
6) The Investigating Officer, Nitin B. Aagashe, as P.W.6 and
7) The Police Officer, Bhavana D. Mate, who recorded the F.I.R. as
P.W.7.
d) In the evidence of the above referred witnesses, the relevant
documents i.e. F.I.R., the birth certificate of the Victim, the seizure
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panchanamas, the medical examination papers of the Victim, the
spot panchanama etc. were brought on record by the prosecution.
e) After the prosecution filed the evidence closure pursis, the
statement of Appellant came to be recorded under Section
313 (1)(b) of the Cr.P.C. The Appellant stated that, he was falsely
implicated as he objected to the Victim not to insert her finger in her
private part. On appreciating the evidence on record, the learned
trial Court passed the impugned judgment and order.
3. Heard learned Advocate for the Appellant and the learned
Additional Public Prosecutor for the State. Scrutinized the evidence
available on record.
4. It is submitted by the learned Advocate for the Appellant that,
there is no dispute on the aspect that, the Victim was a child.
Though the Informant, who is the mother of the Victim, deposed
that, she had gone to the Police Station to lodge the report at 04
P.M., the other evidence on record goes to show that the F.I.R. was
registered at 08 P.M. and, therefore, there was variance in the
prosecution evidence. If that be so, there were two statements of the
Informant, which are not forthcoming. The evidence of the Victim do
not show that, she resisted or opposed the act of applying oil and
inserting finger in her private part. The history given to the Doctor
is different, which shows that, such incident had also occurred a day
prior to the incident reported in the F.I.R. No oil was found on the
person of the Victim. The Victim's evidence and that of her mother's
do not inspire confidence. The evidence of Medical Officer shows
that, in the history it was stated that the Appellant removed his pant
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which is contrary to the evidence of the Victim. Nothing
incriminating has come in the evidence of the Panch for seizure of
the clothes. The Investigating Officer neither seized oil nor took the
nail clippings of the Appellant to corroborate the prosecution case.
The Victim being the child, her testimony is required to be
considered with care and caution as the minors are prone to
tutoring. The sole testimony of the Victim do not inspire confidence
and it cannot form the basis to maintain the conviction. The Appeal
be allowed and the conviction be set aside.
5. It is submitted by the learned Additional Public Prosecutor
that, it is an open and shut case. The evidence on record proved the
Charge against the Appellant. No defence was raised by the
Appellant. There is no inconsistency in the evidence of the Victim
and it inspires confidence. There is no cross-examination on the
point of the age. The mentioning in the medical history about prior
incident after lodging the F.I.R. will not be of any assistance to the
defence. The medical evidence corroborates the prosecution story as
it shows that the Hymen of the Victim was torn. As the prosecution
established their basic case, the Presumption under Section 29 of the
POCSO Act will come into play. It is not explained by the Appellant
as to when and how he saw the Victim putting her finger in her
private part. The Victim's mother was a rustic lady and, therefore, it
is not expected that immediately she will run to the Police Station to
lodge the F.I.R. There is consistent evidence on record and the
learned trial Court has rightly convicted and sentenced the Appellant
and the Appeal be dismissed.
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6. The Victim's mother who is examined as P.W.1 gave the
Victim's date of birth on 25.9.2011. The copy of birth certificate of
the Victim is brought on record in her evidence at Exh.32. There is
no challenge to the said date of birth of the Victim. As seen above, it
is the contention of the learned Advocate for the Appellant that, it is
not disputed that the Victim was the child at the relevant time.
Therefore, said evidence on record proved that the Victim was the
child at the relevant time.
7. The star witness of the prosecution is the Victim who is
examined as P.W.2. Her evidence shows that, she was residing with
her family members and studying in 6 th standard. She knew the
Appellant as he was residing near her house. She deposed that, the
incident took place on 14th and it was Saturday. She returned home
from school at 11 p.m. She took the meals and thereafter went
outside to play. When she was playing, the Appellant was sitting
nearby. The Appellant gave his mobile to her and asked her to put it
for charging and so she went to his house. The Appellant followed
her. No one was present in his house. The Appellant took his mobile
from her. The Appellant made her to lie on the cot, removed her
pant till the knees and applied oil to her private part and inserted his
finger. She cried and the Appellant gagged her mouth and asked her
to go home. She came to home crying and narrated the incident to
her mother. The report was lodged with the Police Station. She
identified her clothes and the Appellant.
8. Her evidence in the cross-examination shows that, when the
Appellant removed her pant, she raised hue and cry and no one from
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neighbour came and she tried to escape, however, the Appellant
caught hold of her. This evidence cannot be termed as an
improvement in her evidence. Her evidence in the examination-in-
chief is consistent with her previous statement. She denied the
suggestion that she used to insert her finger in her private part.
Nothing has come in the cross-examination to disbelieve the
testimony of the Victim. Nothing has come in her evidence to
suggest that she was tutored. Her evidence is specific in respect of
the incident of fingering by the Appellant and remained unshattered
in the cross-examination.
9. The evidence of the Victim's mother who is examined as P.W.1
shows that on 14.7.2018 when she was at home around 2 p.m., the
Victim came to her crying and informed that, the Appellant gave his
mobile to her for charging and, therefore, she went to his house and
the Appellant followed her. The Victim informed her about the
incident that, the Appellant made her to lie on the cot, removed her
pant, applied oil to her private part and inserted his finger in her
private part. Her evidence shows that, immediately the Victim
informed her about the incident, therefore, the evidence of this
witness becomes relevant. Her evidence shows that on the same day
she went to the Police Station and lodged the report below Exh.19.
10. Though the defence in the cross-examination of the Informant
tried to bring on record that, though the Informant went to the
Police Station at 04 p.m. the crime was registered at 08 p.m., the
evaluation of the entire cross-examination shows that, there is no
delay in lodging the report with the Police Station. The Informant
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clarified that they had gone to the Police Station at 08 p.m. and not
at 04 p.m. therefore, version in respect of time of reaching the Police
Station do not create doubt in the case of prosecution. Though the
learned Advocate for the Appellant submitted that, the evidence in
the cross-examination which reads " gs [kjs ukgh dh] vkjksihus eqyhyk ?kjh
ikBfoys uOgrs R;kus frP;k lq P;k tkxh cksV Vkdys uOgrs " is not the sentence in
continuation but are the two different sentences, is without any
merit. Careful reading of the said sentence clearly shows that, the
Informant denied the suggestion that the Appellant did not send the
Victim to his house and did not insert his finger in her private part.
The testimony of the Informant shows that it was consistent with her
report lodged by her with the Police.
11. The other evidence on record is that of the Medical Officer
who is examined as P.W.3. In 2015, she was attached to the
Government Hospital, Nagpur. On 15.07.2018 the Victim was
brought for medical examination. After recording the history, she
examined the Victim and she found "redness present over introits, no
bleeding, hymen appears torn, there was no bleeding." Her
evidence shows that the sexual violence cannot be ruled out. The
medical examination papers are brought on record at Exh.28 which
corroborates her testimony. Though in the cross-examination it is
brought that, redness can occur due to unhygienic condition if there
is an infection, her further evidence shows that she did not notice
any infection. It has come on record that, the redness can occur due
to self fingering and she has not mentioned the age of redness,
however, she volunteered that, the redness remains for 24 hours.
Not finding of the oily substance on the private part of the Victim by
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itself will not be fatal due to the medical evidence supporting the
testimony of the Victim. The medical examination of the Victim was
not to find out the oil on her private part, whereas it was in respect
of the sexual assault. Moreover, the incident occurred on 14.7.2018
and she was examined on 15.7.2018, therefore, not finding oily
substance on the private part of the Victim is not fatal to the
prosecution's case.
12. The evidence of P.W.4 Aunt of the Victim becomes relevant.
Her evidence shows that, on 14th in the year 2018 the Victim
returned home from the school and she provided meals to her and
thereafter the Victim went to play outside the house. Her evidence
further shows that at 2 p.m. the Victim came crying to her mother
and reported the incident. The statement of this witness was
recorded on the same day as is clear from her cross-examination.
This part of evidence of this witness becomes relevant. In her cross-
examination it has come on record that, the Appellant was alone in
his house on that day. The evidence of the Victim also shows that at
the time of incident the Appellant was alone in his house.
13. The other evidence on record is that Panch witness and that of
the Investigating Officer. The re-appreciation or evaluation of the
evidence on record clearly established the Charge against the
Appellant. The Victim's testimony finds corroboration by the
medical evidence. The Victim's testimony inspires confidence. The
testimony of the Informant corroborates the Victim's version. There
was immediate reporting to the Police and the Victim was examined
within 24 hours. Nothing has come in the cross-examination of the
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prosecution witnesses so as to create any doubt in respect of the
prosecution's case. With the evidence available on record, the
prosecution established their case and, therefore, the presumption
under Section 29 of the POCSO Act comes into play. Except the
defence of false implication, nothing is brought on record by the
Appellant. In his statement under Section 313 of the Cr.P.C. he
stated that, there was quarrel between his family and the family of
the Victim on the ground of throwing garbage and he saw the Victim
applying oil to her private part and so he slapped her and she went
crying to her home and so he was falsely implicated. The said
defence does not appear to be probable as no mother will lodge such
false report involving her minor daughter. The Appellant failed to
rebut the Presumption. Consistent and trustworthy evidence do not
call for any interference in the conviction and sentence recorded by
the learned trial Court. The evidence on record establishes the
essential ingredients for the offence for which the Charge was
framed against the Appellant.
14. I have gone through the judgments cited by the learned
Advocate for the Appellant in (i) Sunilkumar Virjibhai Damor V/s.
State of Gujarat, 2018 SCC OnLine Guj 2153, (ii) Golla Yelugu
Govindu V/s. State of A.P., 2008 Cri. L.J. 2607 and (iii) Mr. Lalmand
Nabhik Chaudhary V/s. State (through the Mapusa Police Station) ,
2010 ALL MR (Cri) 102. The first case was in respect of regular bail.
The principles laid down in the other two judgments in respect of
testimony of the child witness cannot be disputed. The facts of the
said judgments and the facts of the case at hand are different. In my
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considered view, the said judgments are of no assistance to the
Appellant.
15. In view of the above discussion, no interference is called for in
the impugned judgment and order. Hence, I proceed to pass the
following order.
ORDER
(i) The Criminal Appeal stands dismissed.
(ii) The record and proceedings be sent back to the learned trial
Court.
(NEERAJ P. DHOTE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 14/01/2026 15:18:31
