[Cites 16, Cited by 0]
Bombay High Court
Vijay Mahadevrao Moon vs The State Of Mah. Thr. Pso Hinganghat, ... on 16 January, 2026
1 apeal276.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.276/2023
Vijay Mahadevrao Moon,
aged about 58 Yrs., Occu. Private,
R/o Chokhoba Ward, Hinganghat,
Tah. Hinganghat, Distt. Wardha,
Maharashtra 442 301. ... Appellant
- Versus -
1. The State of Maharashtra,
through P.S.O. Hinganghat,
Distt. Wardha.
2. XYZ (The mother of Victim)
in Crime No.264/2015 and
through P.S.O. Hinganghat,
Distt. Wardha. ... Respondents
-----------------
Mr. Abhinav K. Dhabarde, Advocate for the Appellant.
Ms. Sneha Dhote, Additional Public Prosecutor for Respondent
No.1/State.
Ms. Kirti Deshpande, Advocate (appointed) for Respondent No.2.
----------------
CORAM: NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT: 09.01.2026.
DATE OF PRONOUNCING THE JUDGMENT: 16.01.2026.
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 24.2.2022, passed by the learned Additional Sessions
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Judge, Hinganghat in Special (POCSO) Case No.23/2017 convicting
and sentencing the Appellant as follows:-
For the offence punishable under Section 354B of the Indian
Penal Code (for short "I.P.C."), Section 7 read with Section 8, Section
9(m) read with Section 10 and Section 11(i)(ii) read with Section
12 of the Protection of Children from Sexual Offences Act, 2012 (for
short "POCSO Act") to suffer rigorous imprisonment for 5 years and
fine of Rs.10,000/-, in default to pay fine, to undergo simple
imprisonment for 6 months.
2. The prosecution's case, as revealed from the police report, is as
under:-
a) The Informant was residing with her family, comprising
husband and children. The Appellant was residing near the house of
the Informant. The Victim, aged around 7 years, is the daughter of
the Informant and she was studying in the 2 nd standard. On
10.10.2015 around 7.45 p.m. the Victim was playing on the terrace
of the house of the Appellant with daughter of the Appellant. After
some time, the Victim came home in frightened condition. The
Victim informed her mother that, the Appellant lowered her
bermuda and the knicker and made her to sit on his lap and touched
his private part to her private part. The Informant checked the
undergarment of the Victim and found it to be sticky. In the
meanwhile, the wife of the Appellant came to her home and asked
the Informant not to leave her daughter alone and left. The
Informant told the Appellant's wife about the act done by the
Appellant with the Victim. In the night around 9.30 p.m., the
Informant's husband came home. After the meals they sat outside
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their house. The Appellant also came there. The Informant asked
her husband to drive away the Appellant from there. On asking by
her husband, the Informant informed him about the incident which
was narrated to her by the Victim. The Informant's husband
questioned the Appellant, to which the Appellant kept mum. On the
next day, the incident was reported to the Police and Crime bearing
No.264/2015 came to be registered against the Appellant for the
offence punishable under Section 354B of the I.P.C. and Sections 8
and 12 of the POCSO Act.
b) The undergarment of the Victim was seized by the Police. The
Victim was referred to the Hospital for medical examination. The
Medical Officer obtained the samples of the Victim. The spot of
incident was shown by the Informant to the Police and the
spot-panchanama was drawn. The Appellant came to be arrested
and sent for medical examination and his blood sample was drawn.
The statement of witnesses were recorded. The relevant documents
were collected. The seized articles and the samples were referred to
the Chemical Laboratory for examination. On completion of the
investigation, the Appellant came to be chargesheeted.
c) On committal, the learned trial Court framed the Charge
against the Appellant below Exh.7 for the offence punishable under
Section 354B of the I.P.C., sections 8, 10 and 12 of the POCSO Act.
The Appellant pleaded not guilty and claimed 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,
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3) The Woman Police Officer, Karuna S. Musale, who registered
the Crime as P.W.3,
4) The President of the Child Welfare Committee, Smt. Sangita
Dhanadhye, as P.W.4,
5) The Panch for seizure of the undergarment of the Victim and
Panch for the spot, Akshay S. Moon, as P.W.5,
6) The Medical Officer, Dr. Priti R. Paradkar, who examined the
Victim, as P.W.6,
7) The Lady Police Constable, Shital P. Kakade, who took the
Victim for the medical examination, as P.W.7,
8) The Police Constable, Virendra B. Kamble, who took the
Appellant for medical examination, as P.W.8,
9) The Medical Officer, Dr. Prashant V. Bonde, who took the
blood samples of the Appellant, as P.W.9,
10) The Policeman, Pravin A. Lingade, who conducted the
investigation, as P.W.10,
11) The Police Officer, Vijay B. Naik, who conducted the
remaining investigation and filed the Chargesheet as P.W.11.
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
panchanamas, the medical examination papers of the Victim, the
spot panchanama etc. were brought on record by the prosecution.
After the prosecution filed the evidence closure pursis, the statement
of the Appellant came to be recorded under Section
313(1)(b) of the Cr.P.C. The Appellant denied the case of
prosecution and stated that, he was falsely implicated as his relations
with family of the Victim were strained due to financial transaction.
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On appreciating the evidence on record, the learned trial Court
passed the impugned judgment and order convicting the Appellant
as above.
3. Heard the learned Advocate for the Appellant, the learned
Additional Public Prosecutor for the State and the learned Advocate
for the Victim. Scrutinized the evidence available on record.
4. It is submitted by the learned Advocate for the Appellant that,
the Appellant has already undergone the sentence and has been set
at liberty. It is submitted that, the age of the Victim was not disputed.
The testimony of the Victim and the Informant do not corroborate
each other. The medical evidence do not corroborate the testimony
of the Victim. The Articles were not properly seized and, therefore,
C.A. Report cannot be considered. The learned trial Court has erred
in convicting and sentencing the Appellant. The Appeal be allowed.
5. It is submitted by the learned Additional Public Prosecutor
that, the incident took place on the terrace of the house of the
Appellant after the sunset and, therefore, it was not possible that
there would an independent witness. The testimony of the Informant
was consistent with the report lodged by her. The Victim was
examined after a period of 4 years and, therefore, some
discrepancies are bound to be there in her evidence, however, those
do not affect the prosecution case. The Chemical Analyzers Report
are incriminating in nature. All the witnesses supported the case of
the prosecution and Charge was proved. The learned trial Court has
recorded the proper findings and no interference was called for. The
defence of the Appellant is improbable. The Appeal be dismissed.
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6. It is submitted by the learned Advocate for the Victim that,
variance in the testimony of the prosecution witnesses is not fatal for
the prosecution as the Victim's evidence was corroborated by the
medical evidence. The Medical Officer who examined the Victim
was not cross-examined by the Appellant. The age of the Victim was
proved. No interference is warranted in the judgment and order and
the Appeal be dismissed.
7. When the Charge and prosecution is for the offence
punishable under the penal provisions of the POCSO Act, the
prosecution is required to prove that, the Victim was the child as
defined under Section 2(d) of the POCSO Act. To prove that the
Victim was a child, the prosecution has relied on the testimony of the
Informant, who was the mother of the Victim, wherein she deposed
that, the Victim was born on 19.11.2008. In her evidence, the birth
certificate showing the same date of birth is brought on record at
Exh.20. The concerned Officer from the office which issued the said
birth certificate has not been examined by the prosecution. However,
there is no challenge to the said date of birth of the Victim in the
cross-examination. Nothing is brought on record to show that, the
date of birth deposed by the Victim's mother was incorrect. On the
basis of this evidence on record the prosecution has proved that, the
Victim was a child at the relevant time.
8. The prosecution's case largely hinges on the testimony
of the Victim who is examined as P.W.2. At the time of evidence her
age was 11 years. Her evidence was recorded after administering the
Oath. She deposed that, the incident occurred on 10.10.2015
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between 7.30 p.m. to 7.45 p.m. when she had gone to play on the
terrace of the Appellant's house. She was playing with the daughter
of the Appellant. After some time, the Appellant's daughter went
downstairs for her study and she also was to leave. At that time, the
Appellant called her near him and gave his mobile to her for playing.
The Appellant removed her bermuda and knicker and sat on her lap.
The Appellant removed his pant and touched his penis on the private
part of the Victim. The Victim felt uncomfortable and she shouted.
At that time, the Appellant's wife came there and asked her to return
home and so she came home. The Victim's evidence further shows
that, she removed her bermuda and knicker. In the meantime, the
Appellant's wife came to their home and informed her mother not to
leave the Victim alone and left. The Victim's mother asked her and
she narrated the incident to her. Her mother noticed that, her
knicker was wet. After her father returned home, her mother
informed the incident to him. On the next day, they went to the
Police Station and report was lodged. She further deposed that, she
was referred for medical examination and samples of her vaginal
swab, blood and nail clippings were taken. Her knicker was seized
by the Police. Her statement was recorded. She deposed that, she
did not understand what was done by the Appellant with her. She
identified Article "A" knicker and the photograph of the Appellant
which was on the arrest panchanama.
9. The Victim was cross-examined by the Appellant. It has come
in the cross-examination that, the terrace of the Appellant was not
visible from the road and from any other place. She denied that,
there was quarrel between her family and the Appellant. Nothing
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has come in the cross-examination to create any dent in her
testimony. Her evidence is found consistent with her previous
statement. She withstood the cross-examination and her testimony
remained unshaken. There is nothing to show that, the Victim was
tutored. There is no reason to disbelieve the testimony of the Victim
which is natural, consistent and inspires confidence.
10. The Informant is examined as P.W.1. Her evidence shows that,
the incident was dated 10.10.2015 between 7.30 p.m. to 7.45 p.m.
At that time, she was present at home. The Victim had gone to play
on the terrace of the Appellant with the Appellant's daughter. After
some time, the Victim returned home in the frightened condition and
took out her bermuda. The Victim's undergarment was found wet
and she provided her another undergarment. In the meantime, the
Appellant's wife came home and asked her not to leave her daughter
alone and left. Her evidence shows that, she asked the Victim as to
what happened and the Victim narrated the incident to her.
Thereafter she called the Appellant's wife and made her to listen the
incident from the Victim. The wet undergarment of the Victim was
also shown to the Appellant's wife by her. In the evening around
9.30 p.m. to 9.45 p.m her husband came to home and after the
meals they sat in front of their house. The Appellant also came
there. She asked her husband to drive away the Appellant. On
asking by her husband, she narrated the incident to him. She
deposed that, the name of Victim would be defamed and thought not
to lodge the report, however, in the morning they went to the Police
Station and lodged the report below Exh.16. She handed over the
knicker of the Victim to the Police which was seized under the
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panchanama below Exh.21. In her evidence she identified the said
knicker as Article-1. She deposed that, the Victim was referred to
the medical examination and the samples of the blood and vaginal
swab of the Victim were taken by the Doctor. On the next day Police
came to her home and she showed the spot of incident. Her and
Victim's statement were recorded under Section 164 of the Cr.P.C.
11. In the cross-examination of the Informant, the Appellant tried
to bring on record that, the spot of incident was easily visible.
Though it has come in the cross-examination that, the slab of the
house of Appellant was visible from the house of the neighbour
Sachin Fulkar, undisputedly the incident took place in between 07.30
p.m. to 07.45 p.m. in the month of October when the days are short.
It has come in her cross-examination that, one cannot hear from the
road or from the nearby house if anybody talks on the terrace of the
house of the Appellant. It has further come in her cross-examination
that, at the time of incident at about 7 to 8 p.m, there was no traffic
or presence of any person near the vicinity. Though the Victim's
cross-examination shows that, the Appellant and his wife used to
borrow money from them whenever required, nothing has come in
her evidence that, she had any reason to lodge the false report
against the Appellant. The Informant has explained the delay in
lodging the F.I.R. as it has come in her evidence that, they thought
that the Victim would be defamed if the report was lodged, however,
on the next day, they lodged the report. The testimony of the
Informant is consistent with her report. Her testimony corroborates
the testimony of the Victim. The Informant's testimony remained
unshaken in the cross-examination.
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12. Another piece of evidence is the medical evidence. P.W.6 Dr.
Priti Paradkar deposed that, on 12.10.2015 the Victim was brought
to him and he medically examined her. He found no injury on her
person and the Hymen was intact. The gait of the Victim was
normal. It is nowhere the case of the prosecution that, there was
penetrative sexual assault on the Victim. Therefore, not finding the
injury on the person of the Victim cannot be taken that, it is adverse
to the prosecution.
13. Another piece of evidence is the DNA Report at Exh.58 which
records the opinion that, the DNA Profile obtained from the semen
detected at Exh.1 was of male origin and matched with the DNA
Profile obtained from Exh.2 blood stains of the Appellant. There is
evidence of P.W.9 Dr. Prashant V. Bonde that, the blood samples of
the Appellant were taken and handed it over to P.W.8 Virendra B.
Kamble, the Police Naik, who had taken the Appellant to the doctor.
The evidence of P.W.8 Virendra B. Kamble shows that, he collected
the samples of blood and handed it over to the Investigating Officer.
As per the evidence of P.W.8 Virenda B. Kamble he was deputed by
the Investigating Officer (P.W.11) to carry the muddemal to the
Chemical Analyzer on 20.10.2015. However, there is no evidence as
to where and in what condition the samples were kept by the
Investigating Officer P.W.11. There is no evidence to show the status
of the samples for 5 days as to how it was preserved. It is the settled
position under the law that, the chain of custody of handling the
samples for DNA is necessarily to be established to rule out the
possibility of tampering or the samples getting contaminated. This
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link evidence is absent in the prosecution's evidence. Therefore, said
DNA Report would not be of any assistance to the prosecution.
14. The other evidence is that of the panch witness for seizure of
knicker and spot panchanama, the President of the Child Welfare
Committee and the Policemen. There is no need to burden this
judgment by discussing their evidence in the light of the evidence of
the Victim and that of the Informant. Through, the evidence of the
Victim, corroborated by the testimony of the Informant, the
prosecution proved the Charge. The Victim's evidence can form the
basis to confirm the conviction. The learned trial Court has imposed
the minimum sentence provided for the proved offence punishable
under Section 10 of the POCSO Act. As observed earlier, the
Appellant has already undergone the sentence. In this view of the
matter, following order is passed.
ORDER
(i) The Criminal Appeal is dismissed.
(ii) The fees of the learned Advocate appointed for the
Respondent No.2 is quantified at Rs.7,500/-. Same be paid
accordingly by the High Court Legal Services Authority.
(iii) 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: 16/01/2026 15:17:04
