[Cites 12, Cited by 0]
Bombay High Court
Rahul Ganeshrao Gathe vs State Of Mah. Thr. Pso Sarmaspura ... on 17 January, 2026
Author: Anil L. Pansare
Bench: Anil L. Pansare
2026:BHC-NAG:724-DB
1 jg.cri.appeal 744.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
Criminal Appeal No. 744 of 2022
Amended Rahul Ganeshrao Ghate Gathe
As per Aged - 34 years, Occ. :- Labour,
Court's R/o Nijampur, Tq. Achalpur,
order dtd. Distt. Amravati. ... Appellant
20.11.2022
- Versus -
State of Maharashtra,
Through Police Station Officer,
Sarmaspura, Achalpur,
Tq. Achalpur, Distt. Amravati. ... Respondent
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Mr. Nalin Majithia, Advocate (Appointed) for the appellant
Mr. A. B. Badar, APP for the State/respondent
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CORAM : ANIL L. PANSARE AND
NIVEDITA P. MEHTA, JJ.
Date of reserving judgment : 09-01-2026
Date of pronouncing judgment : 17-01 2026
JUDGMENT (Per : ANIL L. PANSARE, J.)
The appellant is aggrieved by the judgment and order
dated 8-3-2022 passed by learned Sessions Judge, Achalpur in Special
Case No. 151/2019 thereby convicting him for the offence punishable
under Section 376 (AB) of the Indian Penal Code (IPC) and Section 6 of
the Protection of Children from Sexual Offences Act, 2012 (for short
'POCSO Act'). The appellant has been sentenced to life imprisonment
and also fine. As such, appellant was charge-sheeted for the offence
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punishable under Sections 376(3) and 376 (AB) of the IPC and Sections
4 and 6 of the POCSO Act, he has been, however, convicted for the
offences mentioned above.
2. Briefly stated, the allegation against the appellant was that
on 23-10-2019 at about 10.00 a.m., he committed rape on a minor
(victim), aged below 12 years, which also amounts to aggravated
penetrative sexual assault in terms of Section 6 of the POCSO Act. The
victim was then 4 years 3 months old.
3. The case of the prosecution is that on 23-10-2019, around
9:30 to 10:00 a.m., the victim told her mother, P. W. 1 that she wanted
to go to play at the house of "Tinu Dada" - the son of the accused. P.W. 1
objected, telling victim that Tinu was not at home and she should not
go, but the victim still went alone to the accused's house, which was
adjacent to her own. P.W. 1, who was cleaning her house, heard the
cries and shouted to ask what had happened. The accused then brought
the crying victim back to her mother. When P.W. 1 asked what
happened, the accused said: "Your daughter fell down in the house" and
then left. Shortly after, when victim tried to urinate, she felt discomfort.
P.W. 1 checked and found blood coming from her private part and blood
stains on her knicker. A neighbour, Sheela, came over and said she also
heard the cries and had gone to the accused's house but found the door
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closed. P.W. 1 called her husband from the field. A relative, Dhandevi,
along with one Sachin, took the victim on a motorcycle to Government
Hospital, Achalpur. On 26 October 2019, around 12:00 p.m., the victim
went to her aunt Pallavi's house to play. Pallavi said "don't play, you'll
fall again". The victim then disclosed : "That day I didn't fall. That day
when I went to Tinu's house, Tinu's father was alone. He closed the
door from inside and did something to my private part". Pallavi
informed Dhandevi, who then told P.W. 1 and her husband. P.W. 1
questioned the victim, who repeated the same account. P.W. 1 then
lodged First Information Report (FIR), Exhibit 18.
4. The investigation was taken up by P.W. 8 Nilima Satao. She
collected evidence, arrested appellant and filed charge-sheet. The
appellant pleaded not guilty. The prosecution examined 10 witnesses
to bring home his guilt. The defence is of false implication because of
prior quarrel on account of appellant's goats eating/damaging
informant's grain. In support, the appellant has examined his wife as
defence witness. The trial Court considered the material placed before
it and held appellant guilty of the offence. The said finding is
challenged before us.
5. We have heard Mr. Nalin Majithia, learned appointed
counsel for the appellant and Mr. A. B. Badar, learned Additional Public
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Prosecutor (APP) for the State/respondent. We have gone through the
evidence, documents, impugned judgment etc. We will refer to the
same to the extent necessary to decide the following points that arise
for our consideration. We have recording our findings thereon for the
reasons to follow.
Points Findings
1. Whether the prosecution proved that In the affirmative.
on 23-10-2019, appellant committed
rape on victim, who was aged below
12 years ?
2. Whether the prosecution proved that In the affirmative.
on that day, appellant committed an
aggravated penetrative sexual assault
on minor victim, aged about 4 years
3 months ?
3. Whether interference is called for In the negative.
in the impugned judgment ?
4. What order ? Appeal is dismissed.
5 jg.cri.appeal 744.2022.odt
As to point nos. 1 to 3
6. The points are interlinked and hence decided by common
reasons. Before we refer to the testimony of all the witnesses, it will be
appropriate to go through the ingredients of offences for which
appellant has been convicted.
7. Section 376-AB of IPC reads as under.
"376-AB. Punishment for rape on woman under twelve years of
age. - Whoever, commits rape on a woman under twelve years of
age shall be punished with rigorous imprisonment for a term
which shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of that person's natural life, and with fine or with
death:
Provided that such fine shall be just and reasonable to meet
the medical expenses and rehabilitation of the victim.
Provided further that any fine imposed under this section
shall be paid to the victim."
The prosecution was under obligation to prove that in terms
of above provision, the appellant committed rape on a minor under
twelve years of age. For the purpose of present case, the definition of
'rape' as spelt out in clause (b) of Section 375 is relevant which provides
that a man is said to commit "rape" if he inserts, to any extent, any
object or a part of the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with him or any
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other person. The testimony of victim indicates that appellant
attempted to insert object in her vagina.
8. As regards ingredients of aggravated penetrative sexual
assault under the provisions of the POCSO Act, one will have to first
understand meaning of 'penetrative sexual assault'. Section 3(b) of the
POCSO Act provides that a person is said to commit "penetrative sexual
assault" if he inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of the child or
makes the child to do so with him or any other person."
9. 'Aggravated penetrative sexual assault' is defined under
Section 5 of the POCSO Act which inter alia includes penetrative sexual
assault on a child below 12 years. Section 6 of the POCSO Act provides
for punishment for aggravated penetrative sexual assault, which shall be
not less than twenty years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of natural life of
that person, and shall also be liable to fine, or with death.
10. Keeping in mind the above provisions, we will go through
the testimony of witnesses. P.W. 1 is mother of victim. She deposed that
her daughter was born on 24-3-2015. At the time of incident, she was
aged 4 years 7 months. She said that incident occurred on 23-10-2019
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(refer evidence of P.W. 1 in vernacular language) between 9.00 to 10.00
a.m. She was working in her house. Victim informed her that she is
going out to play and will go to the place of Tinu Dada (son of
appellant). She informed her that Tinu is not in house and she should
not go. The victim, however, went to the house of Tinu, who was
residing in adjacent house. She then said that victim went to play in the
house of appellant. She heard victim's loud cry. She enquired loudly as
to what happened. Appellant brought victim to her house. Victim was
crying. She enquired with appellant as to what happened. He said that
victim fell down. She then deposed that her daughter urinated and
blood came out from her private part. She saw her private part
bleeding and also saw blood on her knicker. At that time, another
neighbour Sheela came to her and said that she also heard victim's
crying voice. Sheela said that door of appellant's house was closed
when she heard the cry of victim. Thereafter P.W. 1 called her husband.
One Dhandevi (P.W. 2) took victim to the Government Hospital,
Achalpur. P.W. 1 and her husband also reached the hospital. Doctor
examined victim. Doctor enquired as to what had happened to her
daughter. P.W. 1 informed him of what appellant said. Doctor treated
the victim. They all came back.
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11. Her evidence further indicates that victim informed
incident to her aunt Pallavi, who is daughter-in-law of P.W. 2,
wherefrom she came to know that victim did not fall down on that
day but appellant inserted something in her private part. Pallavi
informed it to Dhandevi who passed on to informant, P.W. 1.
Thereafter P.W. 1 enquired with victim. She narrated incident to
her. P.W. 1 went to police and lodged report, Exhibit 18.
12. In the cross-examination, a case is put up that whatever has
been stated by P.W. 1 is false. All the suggestions are denied by her. A
case was also put up that there occurred quarrel between her and wife
of accused on account of damage caused to her food grains by the goats
of accused. She denied the said suggestion as well. She admitted that
she did not discuss filing report with her husband or any one else before
hand. She also admitted that the victim could wear and remove clothes
herself.
13. P.W. 2 is Dhandevi, the neighbour/relative of P.W. 1, who
took victim to hospital. Her evidence show that on 23-10-2019, she was
called by P.W. 1. She saw bleeding from victim's private part. She took
her to hospital. On 26-10-2019, victim came to her house. Pallavi
informed her to not play, else she may fall again. Victim said that on
that day, she did not fall, Tinu's father was alone, he closed the door
9 jg.cri.appeal 744.2022.odt
and did something to her private part. Pallavi informed it to P.W. 2, who
in turn informed it to P.W. 1 and her husband. In the cross-examination,
the story narrated by victim is shown to be omission. This omission
may be because the victim had narrated incident to Pallavi and she
informed it to P.W. 2. In any case, it is hearsay evidence and will be of
no significance. She admitted that she had been to police station with
P.W. 1 to file report. She denied the case put up by defence that
appellant is falsely implicated due to goat related dispute.
14. P.W. 3 is a panch witness to the spot, seizure of blood
sample of accused, clothes of victim etc. In the cross-examination,
except for suggestions, there is nothing material.
15. P.W. 4 is Medical Officer. She examined victim on
26-10-2019. She found tenderness and odema (swelling) on her
vagina. She noted history of bleeding since 23-10-2019. She opined
that the tenderness and odema to vagina might be trial of forceful
intercourse. In the cross-examination, she deposed that she had taken
history of incident from victim's mother. She also enquired about the
history of incident from the victim but she did not say anything. She
admitted that her opinion is not conclusive. She further admitted that
there were no marks of any injury on the body of victim. She also
admitted that in such cases, there is possibility of injury on other parts
10 jg.cri.appeal 744.2022.odt
of body as also on the body part of the person attempting to force
himself. She deposed that no injury was found on the private part of
the appellant. She also admitted that injury can be caused while
playing. She did not enquire about whether victim fell down. She
admitted that victim was walking normally on that day.
16. P.W. 5 is the star witness viz. the victim. She deposed that
in Diwali Holidays, she went to play to house of Tinudada. Appellant
was present in the house. He closed the door. He inserted something in
her private part. She started crying, therefore, he brought up to her
mother. She was taken to hospital. In the cross-examination, the case
put up by defence was denied. It is, however, brought on record that
she has stated to Doctor what has happened in the incident. She further
stated that she can wear and take off her clothes.
17. P.W. 6 is panch witness to sealing of blood and seizure of
mobile chip. His testimony is not of much relevance.
18. P.W. 7 is Pallavi, victim's aunt. She deposed that on
26-10-2019, victim came to her house. She (P.W. 7) informed her not to
play, else she will fall again. To which, victim replied that she did not
fall down the other day but Tinu's father inserted something in her
11 jg.cri.appeal 744.2022.odt
private part. Her evidence on incident is hearsay but is relevant, if read
with testimony of P.W. 2 and P.W. 1.
19. P.W. 8 is the Investigating Officer, who investigated the
crime, collected birth certificate, Exhibit 54, send samples to FSL,
obtained reports (Exhibits 57 and 58), recorded statements of witnesses
and filed charge-sheet. He admitted that witnesses were not aware of
exact spot of incident. According to appellant, P.W. 8 could not explain
delay in recording statements of some of witnesses.
20. P.W. 9 is a Doctor. He is Pediatrician. He treated victim on
23-10-2019 for bleeding from vagina. He advised injection of Titanus to
victim, may be because victim said that something was inserted in her
vagina. He referred the victim to District Woman Hospital, Amravatifor
expert opinion. In the cross-examination, he admitted that he did not
take history from victim or relatives. He deposed that he cannot state
whether injuries were serious or not.
21. P.W. 10 is the one who recorded victim's statement and FIR
on 26-10-2019. This is how prosecution led evidence to prove its case.
22. We have minutely gone through the evidence. The
testimony of P.W. 1, P.W. 2, P.W. 5 and P.W. 7, if read with testimony of
12 jg.cri.appeal 744.2022.odt
two Doctors i.e. P.W. 4 and P.W. 9, the picture becomes clear. What
transpires is that on 23-10-2019, the victim went to the house of
Tinu, the son of appellant. P.W. 1 was aware that Tinu was not in the
house and advised her not to go. The victim child, however, unaware
of what would happen, went to the house of appellant. The appellant,
taking advantage of the situation, closed the door and inserted
something in her vagina. She started crying loudly. The loud cry was
heard by P.W. 1 and another neighbour Sheela (not examined). Upon
hearing loud cry, P.W. 1 enquired loudly as to what happened. The loud
enquiry by victim's mother prompted the appellant to bring victim to
her house. He then made up a story that victim fell down. He however,
did not give any detail of where and how did she fall down.
Nonetheless, P.W. 1 believed appellant and referred the victim to
hospital through P.W. 2.
23. It was on 26-10-2019 when victim came to P.W. 2's house
where P.W. 7 was present, who advised victim to not play saying that she
will fall down again. Then victim narrated incident saying that on the
other day, she did not fall but appellant was alone in the house, he
closed the door and inserted something in her private part. Pallavi
informed it to P.W. 2, who then informed the said fact to P.W. 1 and her
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husband. P.W. 1 again enquired with the victim and in response, victim
narrated the incident. Thereafter police report was lodged.
24. Thus, there is a reason why FIR was not lodged on
23-10-2019 but was lodged on 26-10-2019. P.W. 1 got knowledge of
incident only on 26-10-2019 and promptly reported the matter to
police. The argument of appellant's counsel that there occurred delay
in lodging FIR and therefore, case of prosecution is weakened, is
without substance and is accordingly rejected.
25. P.W. 9's evidence also indicates that the matter was not
taken up seriously. He also believed that injury occurred because victim
fell down who complained of bleeding from vagina. The Doctor advised
Titanus injection and gave certain tablets. He referred the victim to
District Woman Hospital, Amravati for expert opinion. P.W. 4 examined
the victim on 26-10-2019 viz. subsequent to lodging FIR. She found
tenderness and odema on vagina with history of bleeding since
23-10-2019. She opined that there might be trial of forceful
intercourse. Her evidence in cross-examination that her opinion is not
conclusive, will be of no help to the appellant to argue that the
tenderness and odema on vagina occurred for some other reason than
what was attributed by victim. The opinion is given based on the
medical examination and the nature of injury found on the private
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part of the victim. According to the Doctor, the injury was such
that could occur because of forceful intercourse. Such opinion would
neither mean that the injury indeed occurred because of forceful
intercourse nor that someone made an attempt of forceful intercourse.
The opinion is spelling out possibility of causing injury. Here, one will
have to take into account the victim's version where she said that
appellant attempted to insert something in her private part. She has not
deposed that appellant attempted to force himself on her. The evidence
indicates that appellant attempted to insert some object which resulted
bleeding injury to vagina. One will have to also consider age of the
victim and her ability to describe the object. She being minor, aged
about 4½ years either has not seen the object or was unable to describe
the same. She went to the house of appellant for playing. Her focus
must be elsewhere when appellant attempted to insert something. That
being so, absence of description of object is not fatal. Her testimony
that appellant made an attempt to insert something will have to be thus
accepted as an attempt to insert object, which resulted into bleeding
injury. The loud crying of victim would further substantiate her version.
26. The case put up by the appellant that in such cases where
force is used, there is possibility of injury on other parts of the body or
that there is possibility of injury on the parts of body of male, who
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attempted to force is something that is presumptive in nature. The
counsel presumed that appellant attempted to use force on the whole
body of the victim and, therefore, there could be injuries on other part
of victim as also appellant. Such argument is unacceptable. It is
nobody's case that appellant forced himself on victim, rather, the case is
otherwise viz. the appellant attempted to insert something. In the
circumstances, there arises no question of victim sustaining other
injuries or appellant sustaining injuries either on body or on his private
part. The argument to that effect is devoid of merit and is rejected.
27. We may add here that the incident has occurred in the
house of appellant and, therefore, he was under obligation to discharge
burden in terms of Section 106 of the Indian Evidence Act. The
prosecution has led foundation to that effect. The plea that victim fell
down and sustained injury is unacceptable in absence of details at the
hands of appellant. He has not shown the spot where victim fell down.
He has not shown the object by which she sustained or could have
sustained injury to her private part. Such failure of appellant to explain
the facts which were within his exclusive knowledge will attract adverse
inference against him.
28. In addition to the above, the appellant is faced with
challenge under Section 29 of the POCSO Act which provides for
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presumption of committing offence under Sections 3, 5 (for which
punishment is provided under Section 6), 7 and 9 of the Act where the
person is prosecuted for committing such offence. It is well settled that
the presumption, though statutory, will come into play only upon laying
foundation by the prosecution. In our considered view, the testimony of
witnesses discussed above has laid down foundation for presumption
under Section 29 of the POCSO Act. In fact the testimony is self
sufficient to attract ingredients of both the offences viz. Section 376-AB
of IPC and Section 6 of the POCSO Act.
29. The defence has not rebutted the presumption though
appellant made an attempt to do so. He examined his wife. She
deposed that the house of P.W. 1 is located behind her house. Thus, the
fact that appellant was residing adjacent to P.W. 1's house is established.
She deposed that her relations with P.W. 1 were not good. Her goats
entered the compound of P.W. 1 and they consumed grains. She then
deposed that there occurred quarrel between her husband and P.W. 1's
husband and he threatened to see him. She then deposed that on
23-10-2019, victim had not come to her house for playing. In the cross-
examination, she admitted that her younger son is 12 years old and his
pet name is Tinu. It is then brought on record that she has no certificate
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to show that she owned goats. She then deposed that she did not lodge
any report in respect of alleged quarrel and threat by P.W. 1's husband.
30. Learned APP has rightly argued that the testimony of
D.W. 1 is nothing but an attempt to save her husband. Her story of
goats entering compound and eating grains and of quarrel between two
families is a bald statement, supported by no cogent evidence. Thus,
appellant failed to rebut the presumption under Section 29.
31. Put altogether, the evidence of witnesses discussed above
coupled with the presumption under Section 29 of the POCSO Act
would sustain the finding of conviction rendered by the trial Court.
The trial Court has considered all attending circumstances and rendered
well reasoned findings.
32. The testimony of other witnesses needs no further
discussion. Their role, which otherwise, is of corroboration is
mentioned in earlier part of judgment. Thus, the prosecution
successfully proved that appellant committed rape as well as aggravated
penetrative sexual assault on minor victim, who was aged below 12
years. No interference is called for in the impugned judgment.
Accordingly, point nos. 1 and 2 answered in affirmative and point no. 3
in negative.
18 jg.cri.appeal 744.2022.odt
As to point no. 4
33. Having answered first three point in the manner herein
above, there is no substance in the appeal. The appeal is dismissed.
34. The fees of learned counsel appointed for appellant shall be
quantified and paid as per the rules.
(NIVEDITA P. MEHTA, J.) (Anil L. Pansare, J.)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge
Date: 17/01/2026 17:23:56
