[Cites 11, Cited by 0]
Bombay High Court
Alkesh S/O. Chandrashekhar Borikar ... vs State Of Mah. Thr. Pso Umred, Tah. And ... on 20 January, 2026
2026:BHC-NAG:871
1 apeal241.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.241/2023
Alkesh S/o Chandrashekhar Borikar
C-11034, aged about 33 Yrs.,
Occ. Private, Presently detained in
Central Jail, Nagpur. ... Appellant
- Versus -
1. State of Maharashtra,
through Police Station Officer
Umred, Tah. and Distt. Nagpur.
2. ABC (Victim) (Crime No.472/2017)
through Police Station Officer, Umred,
Distt. Nagpur. ... Respondents
-----------------
Mr. Gajanan L. Agrawal, Advocate for the Appellant.
Mr. Ujjawal R. Phasate, Additional Public Prosecutor for the
Respondent No.1/State.
Ms. Sonali Saware-Gadhawe, Advocate (appointed) for Respondent
No.2.
----------------
CORAM: NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT: 09.01.2026.
DATE OF PRONOUNCING THE JUDGMENT: 20.01.2026.
JUDGMENT
This is an Appeal under Section 374 (2) of the Code of
Criminal Procedure (for short "Cr.P.C.") against the judgment and
order dated 23.06.2022, passed by the learned Extra Joint
Additional Sessions Judge, Nagpur in Special (POCSO) Case
No.216/2017 convicting and sentencing the Appellant as follows:-
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For the offence under Section 3 punishable under Section 4 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.5,000/-, in default to pay fine, to undergo rigorous
imprisonment for 6 months and similar offence under Section 376 of
the Indian Penal Code (for short "I.P.C.").
For the offence punishable under Section 506 of the I.P.C. to
suffer rigorous imprisonment for 6 months and fine of Rs.500/-, in
default to pay fine, to undergo rigorous imprisonment for 1 month.
Both the substantive jail sentences shall run concurrently.
2. The prosecution's case, as revealed from the police report, is as
under:-
a) The Informant was residing with her family, comprising
husband, son and the Victim who was the 'child' at the relevant time.
The Victim was studying in the 10th standard. The Appellant was
residing in front of the house of the Informant and, therefore, they
were known to each other. On 28.07.2017, the Teacher of the child
called the Informant's husband and asked as to whether they had
sent the Appellant to the school to receive the child. The Informant's
husband went to the school and brought the child to home. On
enquiry with the child, she informed that, the Appellant had taken
the obscene clips in his mobile and used to show her and torture her.
The Appellant used to follow her to school. On 25.07.2017 at
around 1.30 p.m. the Appellant came to school and sought
permission of the child's Teacher to take the child with him for the
Puja. With the permission of the Teacher, the Appellant took the
child with him on the motorcycle to one lodge at Umred where he
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committed forcible sexual intercourse with her. Thereafter the child
was dropped and she was threatened not to disclose the incident to
anyone. The Informant went to the concerned Police Station and
lodged the report against the Appellant and two others i.e. the lodge
owner and the one who accompanied the Appellant on the
motorcycle.
b) The Victim was sent for medical examination. The Appellant
and the acquitted accused came to be arrested. The statement of the
witnesses were recorded. The necessary Panchanamas were drawn.
The clothes of the accused persons and the mobile phone came to be
seized. The blood samples of the child and that of the accused
persons were drawn. The Appellant was sent for medical
examination. The necessary documents were seized. On completion
of the investigation, the Charge-sheet came to be submitted against
the Appellant and the acquitted accused.
c) On committal, the learned trial Court framed the Charge
against the Appellant and the two acquitted accused below Exh.39
for the offences punishable under Sections 366-A, 376(I) and 506 of
the I.P.C. and for the offence punishable under Section 4 of the
POCSO Act. The Appellant and the acquitted accused pleaded not
guilty and claimed to be tried. To prove the Charge, the prosecution
examined in all 12 witnesses including the Informant, the child, the
Teachers from the school, the other witnesses, the Medical Officers
and the Investigating Officer. The relevant documents were brought
on record by the prosecution in the evidence of witnesses. After the
prosecution closed its evidence, the statement of the Appellant and
that of the acquitted accused came to be recorded under Section
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313(1)(b) of the Cr.P.C. The Appellant examined 3 defence
witnesses. After appreciating the evidence on record, the learned
trial Court passed the impugned judgment and order convicting the
Appellant as above and acquitting the other two accused.
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. For the Charge and conviction under the penal sections of the
POCSO Act, it is necessary for the prosecution to establish that, the
Victim was the 'child' as defined under Section 2(d) of the POCSO
Act i.e. the Victim was below the age of 18. Though, the copy of
birth certificate of the Victim is brought on record by the prosecution
in the evidence of Investigating Officer P.W.12 Sangramsingh
Chavhan, the same has not been proved by examining the concerned
Officer from the office which issued the said document. The parents
of the Victim who are examined as P.W.1 and P.W3 deposed the date
of birth of the Victim as 06.02.2003. There is no challenge to the
said date of birth of the Victim deposed by the biological parents of
the Victim. There is no other material on record to show that, the
date of birth of the Victim was different than the one deposed by the
biological parents. The learned Advocate for the Appellant submitted
that, the age of Victim was not disputed. Undisputedly, the crime
was lodged on 28.07.2017 for the incident prior to it. Thus, on the
basis of the evidence on record the prosecution proved that, the
Victim was a 'child' at the relevant time.
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5. It is submitted by the learned Advocate for the Appellant that,
the prosecution did not examine the friends of the Victim and the
Nishane Sir to whom the friends of the Victim had stated about the
incident. The Appellant examined defence whiteness to show that,
on the relevant day, the Victim was present in the school for the
entire day. It is submitted by the learned Additional Public
Prosecutor and the learned Advocate for the Respondent No.2 Victim
that, the Victim's testimony clearly shows the occurrence of the
incident on 25.07.2017 and the prosecution established the same. In
the light of the evidence brought on record by the prosecution, no
importance can be given to the defence witnesses.
6. The prosecution's case largely rests on the testimony of Victim.
The Victim is examined as P.W.2. Her evidence shows that, she knew
the Appellant as he resides near her house and he was on the visiting
terms to her residence. Even evidence of the Victim's mother who is
examined as P.W.1 shows that, they knew the Appellant and in her
cross-examination it is brought by the Appellant that, their relations
with the family members of the Appellant's were cordial. This
clearly goes to show that, there is no dispute in respect of the
identity of the Appellant.
7. The Victim's evidence shows that, on 25.07.2017, she was
studying in the Ashok Kanya Vidyalaya, Umred in 10th standard. On
that day, while she was going to school, the Appellant followed her
and she avoided him and reached the school. The Appellant came in
the school and asked her to tell the Teacher to give her leave to go
outside but the Victim refused to do so. The Appellant left and
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returned at about 1.30 p.m. to the school and he requested the
Teacher for Victim's leave on the ground to perform Puja at Girad.
The Appellant gave the name of the Victim to the Teacher and the
Victim left the school. When she asked the Appellant as to where
they are going, the Appellant told her that, they have to go to temple
and believing the Appellant, she sat on the motorcycle. The
Appellant took the Victim to one 'Deva Lodge'. When she asked as to
why they had come here, the Appellant told her that, he wanted to
delete her photographs and, therefore, they came there and
henceforth he will not torture her. The Appellant gave Rs.400/- to
the person at the lodge and took her in one room on the first floor.
The Appellant closed the door from inside. When the Victim asked
him about the same, the Appellant told her that, he wanted to delete
the photographs. The Appellant made her to sit on the cot and he
removed her clothes. The Victim started weeping. The Appellant
asked her to keep quiet. The Appellant embraced her. She shouted.
She heard voice from outside to keep quiet and not to shout. The
Appellant thereafter removed his clothes and committed sexual
intercourse with her. When she shouted, the Appellant warned her
not to shout or else he will kill her. After 15 minutes the Appellant
left her. The Victim and the Appellant put on their clothes. The
Appellant checked as to whether there was any hidden cameras in
the room. The Appellant threatened her not to disclose the incident
to anybody. They both came outside. She was dropped and she
came home.
8. The evidence of Victim shows that, after 3 days the Appellant
again came to her school for taking her with him. She refused for the
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same and went to the class. She told the incident to her friends. Her
friends told the incident to the Teacher. The Teacher called her
father. Her father came to school. She narrated the incident to her
father. She came home with her father. She accompanied her
mother to the Police Station and the report was lodged. Police
recorded her statement. She was referred for the medical
examination. After the Appellant was released on bail, he gave
threats by sending letters and used to abuse her and her mother and
so the report was lodged against him.
9. The Victim was subjected to the cross-examination. Nothing
has come in the cross-examination so as to create any dent in the
testimony of the Victim. Her testimony is consistent with her
previous statement. The suggestions of false implication are denied
by the Victim. One statement in the cross-examination that, there
was variance in the statement before the Police and the statement
before the Magistrate is of no consequence as nothing is brought in
the cross-examination to show the variance in the testimony of the
Victim with her previous statement. There is no slightest
inconsistency in her testimony. Her testimony clearly shows that, the
Appellant took her from the school on the pretext of going to the
temple. The Victim's silence for the 3 days was the natural conduct
as it is clear from her testimony that she was scared of the sexual act
committed by the Appellant by taking her to the lodge. She was
threatened by the Appellant. Her evidence is natural. As he again
went to the school to take her, she opened up with her friends, who
told the Teacher and the Teacher told to her father. This conduct is
completely natural. There is one more aspect which lends assurance
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to the testimony of the Victim is that her evidence shows that, when
she was taken to the lodge from the school, the motorcycle was
being driven by the Appellant's friend and in her cross-examination
the Appellant has brought on record that, the Appellant was unable
to drive the motorcycle. The Victim's evidence is without any
exaggeration. In the further cross-examination done on behalf of the
Appellant it has clearly come on record that, on 25.07.2017 she left
the school at 1.30 p.m. This admission further fortifies her
testimony that on the said date she left the school in the noon at
1.30 with the Appellant. Through the evidence of the Victim the
prosecution proved that, the Appellant committed the sexual
intercourse with her by taking her with him on the pretext of going
to the temple. The testimony of the Victim is found to be trustworthy
and is accepted. The evidence of P.W.9, Ashwinkumar Sontakke, the
Medical Officer who examined the Victim, shows that, the history
given by her at the time of medical examination was in tune with her
testimony and it further gives the required assurance in respect of
her testimony. The Victim also deposed of the post F.I.R. conduct by
the Appellant.
10. As regards the presence of the Victim in the school on
25.07.2017, her evidence clearly shows that, she had been to the
school on that day. Regarding her presence in the school on that day
is further confirmed or fortified from the evidence of P.W.6 Santosh
M. Tajane, who was the Teacher in the school where the Victim was
studying. His evidence shows that, on 25.07.2017 while he was
going to attend the class period, at 1.50 p.m. the Appellant came to
him. Though some of his evidence is an omission, his evidence
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shows that, at the instance of the Appellant, he called the Victim and
the Victim told that, he resides near her house and he was her uncle
and thereafter they left. His evidence in the cross-examination shows
that, the attendance of the student was taken in the first period and
not in other period. The suggestion that the Watchman was always
present at the main gate and outsiders are not allowed to enter the
school premises is denied. The evidence of this school Teacher
corroborates the testimony of the Victim that, the Appellant came to
school on 25.07.2017 and took the Victim with her. Strangely he
was also examined as the defence witness No.2. This ought not to
have been permitted by the learned trial Court. Even if that be so, his
entire evidence corroborates the testimony of the Victim in respect of
her presence in the school on 25.07.2017.
11. The Appellant examined 3 defence witnesses to show that on
25.07.2017 the Victim was not present in the school. The defence
witnesses could not establish even on the basis of preponderance of
probability that, the Victim was not present in the school on the day
of incident. The evidence of the defence witness Vilas V. Joshi shows
that, he supplied the information of the Victim's class attendance
from 01.07.2017 to 25.07.2017 and the same was exhibited. In the
evidence, this defence witness denied that without written
application, the student was not allowed to leave the school. This
suggestion is fatal for the defence. The defence witness No.2
Santosh M. Tajane was already examined as the prosecution witness
No.6 and is considered above. The evidence of defence witness No.3
Smt. Kusum V. Karhale is vague in nature. There are no dates nor any
specifications so as to create any dent in the testimony of the Victim.
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12. The evidence of the Medical Officer, who is examined as P.W.9,
shows that, on examination of the Victim he found multiple old
healed Hymnal tear present at 3 O' Clock, 9 O' Clock and 1 O' Clock
position and he opined that, the sexual intercourse cannot be ruled
out. No injuries on the person of the victim is not fatal for the
prosecution as the medical examination was done after a period of 4
days from the date of incident. There is further evidence of P.W.10
Dr. Omprakash T. Guralwar of the Rural Hospital, Umred who
examined the Appellant after his arrest. His evidence shows that, on
examination of the Appellant, he found that, the Appellant was
capable of doing sexual intercourse.
13. The evidence of the P.W.1, mother of Victim, shows that, she
set the criminal law in motion by lodging the F.I.R. when she came to
know about the incident. The other evidence is that of the spot
Panch, the Woman Police who recorded the statement of the Victim
and the Police Officers who registered the F.I.R. and who conducted
the investigation. The evidence of the other school Teachers
examined by the prosecution is not of much help and needs no
consideration.
14. It is true that, the Chemical Analyzer's Report in respect of the
Articles and the Samples collected during the course of the
investigation are not conclusive and not incriminating. The same
cannot lead to discard the prosecution's case, in the light of the
trustworthy evidence of the Victim. In view of the Victim's
trustworthy testimony and the other evidence available on record,
non-examination of her friends and Nishane Sir is not fatal for the
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prosecution. In view of the above discussion, prosecution has proved
the Charge against the Appellant of penetrative sexual intercourse
with the 'child' and no interference is called for in the impugned
judgment and order. The Appeal is liable to be dismissed. Hence, the
following order:-
ORDER
(i) The Criminal Appeal is dismissed.
(ii) The fees of the learned Advocate appointed for the
Respondent No.2 is quantified at Rs.10,000/-. 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: 20/01/2026 17:39:22
