[Cites 29, Cited by 0]
Bombay High Court
Balu Sukhdeo Tongare vs The State Of Maharashtra And Anr. on 20 January, 2026
2026:BHC-AS:3405
HEMANT 8.app276.17.doc
CHANDERSEN
Shiv
SHIV
Digitally signed by IN THE HIGH COURT OF JUDICATURE AT BOMBAY
HEMANT CRIMINAL APPELLATE JURISDICTION
CHANDERSEN
SHIV
Date: 2026.01.23
12:31:53 +0300 CRIMINAL APPEAL NO.276 OF 2017
1. Shri Popat Kisan Rahire
Age 29 years
R/o Kochargaon, Taluka Dindori
Dist Nashik
2. Shri Ramdas Kacharu Lilake
Age 33 years
R/o Kochargaon, Taluka Dindori ... Appellants
Dist Nashik (Original Accused
Both presently in Nashik Central Jail Nos.2 and 3)
Versus
1. The State of Maharashtra
Through Dindori police ... Respondent
WITH
CRIMINAL APPEAL NO.343 OF 2022
1. Shri Balu Sukhdeo Tongare
Age 19 years
R/o Sonegaon, Taluka Dindori ... Appellants
Dist Nashik (Original Accused No.1)
Versus
1. The State of Maharashtra
Through Dindori police station
2. XYZ ... Respondents
WITH
CRIMINAL APPEAL NO.142 OF 2017
1. Shri Shrawan Kashinath Lilake
Age 25 years
R/o Kochargaon, Taluka Dindori ... Appellants
Dist Nashik (Original Accused No.4)
Versus
1. The State of Maharashtra
Through Dindori police station
2. XYZ ... Respondents
Page 1 of 32
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Shiv 8.app276.17.doc
Ms Jahnavi S Karnik, appointed Advocate for all the Appellants
Ms S. D. Shinde APP for the Respondent - State.
Dr. Uday P. Warunjikar (appointed through Legal Aid) a/w.
a/w Ms Sonali Chavan for Respondent No.2.
CORAM: SHYAM C. CHANDAK, J.
RESERVED ON: 27th NOVEMBER, 2025
PRONOUNCED ON: 20th JANUARY, 2026
JUDGMENT :
(PER : SHYAM C. CHANDAK, J.)
1. The aforesaid Appeals arising out of the Judgment and Order dated
19/01/2017, in Sessions Case No.142/2016, passed by the learned Additional
Sessions Judge at Nashik. In the said case the Appellants (A-1 to A-4) were
charged and tried for the offences of Sections 376D and 34 of the Indian
Penal Code ("IPC") and Section 4 the Protection of Children from Sexual
Offences Act ("POCSO Act") and 34 IPC. In addition, A-4 was charged
u/Secs. 511 and 506 IPC and Section 18 POCSO Act.
2. The trial Court held that all the accused were guilty of the gang rape.
Hence, convicted them under said Section 376D and sentenced to suffer R.I.
for 20 years each and to pay fine of Rs.5,000/- each and in default of
payment of fine, each of the accused to suffer further R.I. for 3 years.
Additionally, they were convicted under Section 4 POCSO Act, but no
separate sentence was imposed for it in view of Section 42 POCSO Act.
3. Heard Ms Karnik, the learned counsel for the Appellants, Mrs Shinde,
the learned A.P.P. for the Respondent-State and Mr Warunjikar, learned
appointed counsel for Respondent No.2. Perused the record.
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4. As unfolded from record, the prosecution story was that at the time of
the incident, the victim girl aged 16 years (PW-1), her parents and brother 'K'
used to reside in their house situated in their Malla (agricultural field), at
village 'S'. Her grand-mother and brother 'SB' used to reside in their old
house in the village. On 18/03/2016, there was a marriage of her brother 'SB'.
Therefore, they had been to their old house. On 20/03/2016, her parents had
gone to village Girnare, to drop her sister-in-law, and brother 'K' had gone to
the agricultural field. At about 12.00 noon, when she was proceeding by a
foot-way carrying tiffin for brother 'K', the A-3 met her near the agricultural
field of Shinde Baba and he told her to sit alongwith him under a Mango tree.
But she refused him and went ahead. At some distance, the A-1 met her and
lifting her took to the nearby bushes of Karvandi tree (conkerberry). The A-1
then pushed her on the ground; removed her pants with inner garment and
committed forcible sexual intercourse with her. During the intercourse, A-2
to A-4 came there and threatened her as, she should also allow them
intercourse with her, otherwise, they would disclose to her parents about the
sexual intercourse between A-1 and her. PW-1 replied them that they should
not inform, she herself would tell about it once she reached back home.
However, the three accused turned a deaf ear to her. A-2 and A-3 then
committed forcible sexual intercourse with her. A-4 also came near her but
she pushed him. Therefore, A-4 threatened her that if he saw her alone in the
way, he will also do (rape her) like how they did. Then, A-4 went away. PW-1
then went to the agricultural field. Since her parents were not at home, she
did not disclose the incident to anybody. On 21/03/2016, her parents
returned to the house situated at their agricultural land/Malla. At about 9.00
pm, PW-1 was weeping. Therefore, her parents enquired with her. At that
time, she told the incident to her parents. Therefore, on 22/03/2016, at about
9.00 am, PW-1 alongwith her parents went to the house of A-3, but he abused
and drove them out of the house.
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5. On the same day, at about 10.00 am, PW-1 along with her parents went
to the Dindori Police Station and filed an oral Report (Exh.22) therein PW-1
narrated the aforestated incident. The police registered the Report at F.I.R.
bearing C.R. No.45 of 2016 and referred the PW-1 for medical examination.
Investigating Officer Khanderao Ranjve, PSI (PW-6) recorded the statement
of witnesses from time to time, arrested the accused persons, recorded the
Spot Panchnama, seized the clothes of PW-1 and the clothes of the accused,
referred the accused for their medical examination and taking their body
samples. Further, PW-6 sent the seized clothes and the samples to the FSL
for chemical analysis. He obtained the statement of PW-1 recorded under
Section 164 of Cr.P.C. and collected the proof of her age. On completion of
investigation charge-sheet came be submitted on 21/06/2016.
6. To prove the charge, the prosecution examined 6 witnesses which
include the spot panch Sanjaykumar Chavan (PW-2), Medical Officer Dr.
Ujjwala Tejale (PW-3), the School Head Master Bapu Chavan (PW-4) and
Police Carrier Ghanashyam Harale (PW-5). Their evidence is supported with
several documents including the reports of CA and DNA.
Here it must be noted that, by letter dated 29/09/2016 (Exh.64) issued
to the FSL at Kalina, PW-6 had called for the DNA reports. As stated in that
letter, as per Order dated 20/09/2016, passed by the trial Court, the DNA
samples of the accused were taken at Nashik Civil Hospital on 20/09/2016,
and were forwarded to the FSL on 21/09/2016 by PW-6 with his letter
bearing No.2943/2016. However, the letter thereby referring the Appellants
to obtain their DNA samples and the relevant DNA forms are not produced
on record. Similarly, the police who carried and deposited the DNA samples
with the FLS, has not been examined.
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7. After closure of the prosecution evidence, the trial Court recorded the
statements of the accused as provided in Section 313 of the Cr.P.C. wherein
they denied all the incriminating circumstances. The defence of the accused
was of denial and false implication.
It was specific defence of A-1 that the parents of the victim were willing
to perform her marriage with A-1 but his parents had declined for the same.
Therefore, her parents had a grudge against A-1 and her parents and the
brother insisted her to file the complaint against A-1. The defence of A-2 and
A-3 was that, at the time of the incident they had gone to the agricultural field
of Mr. Gorakh Mhaisdhune at village Mangsure. On 22/03/2016, quarrel had
occurred between father of the victim and A-3; and that, there was a previous
dispute between the father of the victim and the A-2 and A-3 on account of
agriculture land. Therefore, PW-1 filed a false complaint on the say of her
father. The defence of A-4 was that there was previous dispute between the
father of the victim and the father of the A-4, therefore, A-4 has been falsely
implicated in this case.
8. On evaluating the evidence in the light of the arguments advanced at
bar, the learned Judge of the trial Court relied upon the prosecution story
and held the accused persons guilty of the offence of Section 376D IPC and
Section 4 POCSO Act. Hence, convicted and sentenced them as noted above.
9. To appreciate the submissions made by the learned Counsel appearing
for the Appellants and the learned APP appearing for the Respondent-State,
it is necessary to revisit the evidence presented by the prosecution.
10. On the point of the age, PW-4 testified that PW-1 was admitted in the
school on 16/06/2006. As per the school record, PW-1's date of birth is
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07/10/1999. Said date was recorded on the basis of an oral information given
by the mother of PW-1. To substantiate this assertion, PW-4 has referred the
copies of the school admission form dated 16/06/2006 (Exh.48) and extract
of general register (Exh.49), which is a public record because it was a Zila
Parishad School, i.e., public school. These documents were prepared by an
employee of the school during the discharge of her/his public duty. The
admission form states that PW-1 was admitted in the school on 16/06/2006
at Sr. No.480, and her date of birth is 07/10/1999. The admission form bears
the thumb impression of the father of PW-1. Thus, it supported the testimony
of PW-4.
11. A plain reading of Rule 12 (3) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 in the light of the decision in the case of
Jarnail Singh vs. State of Haryana1, makes its abundantly clear that under
Sub Rule (3) of Rule 12 the age of a child is ascertained by adopting the first
available basis, out of a number of options postulated in the said Rule. From
the options available under Rule 12(3), an option in the preceding clause will
have over riding effect over an option in subsequent clause. Under Rule 12(3),
date of birth recorded in matriculation (or equivalent) certificate of the
concerned child, is the first option. In the absence of such certificate, Rule 12
(3) envisages consideration of the date of birth recorded in the first attended
school (other than a play school) and it is only in the absence of such
certificate, the age can be proved by producing the birth certificate issued by
a Corporation, or Municipal Authority or a Panchayat and in the absence of
the above, by medical opinion". As held in the case of Lakhi Ram Takbi v.
State of Sikkim2, documents made before a legal dispute arose, i.e., 'ante
litem motam' can be safely relied upon when such documents are admissible
under Section 35 of the Indian Evidence Act, 1872.
1 (2013) 7 SCC 263
2 [2019, All MR (Cri.) Journal 337]
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12. On considering the evidence of PW-1 and PW-4 coupled with the
admission form and the extract of general register, the learned Judge of the
trial Court held that although, birth certificate of PW-1 was not produced in
the evidence, PW-1 has deposed her age as 16 years and 5 months. This
evidence remained undisputed in her cross-examination. Said evidence was
supported with the evidence of PW-4 and the documentary evidence. There is
nothing on record to falsify the said oral and the documentary evidence.
Therefore, and in the light of the decision in Jarnail Singh (supra), the trial
Court held that PW-1 was aged 16 years and 5 months at the time of the
incident. MS Karnik, the learned Counsel for the Appellants has not pointed
out any material showing that the finding of the trial Court that PW-1 was a
child aged 16 years (less that 18 years) is patently wrong or erroneous.
Therefore, I am in agreement with the finding of the trial Court that PW-1
was the child.
13. Now, turning to the evidence on the point of rape. In this regard, PW-1
has deposed that at the time of incident, she was residing with her parents
and brother 'K'. Her another brother 'SB' was residing with her grandmother
in the same village. On 20/03/2016, her parents had gone to village Girnare
and her brother 'K' was in the agricultural field. At about 12 noon, she was
proceeding by a footpath to her agricultural field carrying tiffin for her
brother. On the way, A-3 met her near Shipu Ohol and asked her to sit
alongwith him under the Mango tree. She declined him and proceeded ahead.
PW-1 deposed that thereafter, A-1 met her and lifted her to the bushes of
Karvandi tree. A-1 then pushed her on the ground, removed her clothes and
subjected her to forcible sexual intercourse. PW-1 deposed that, at that time,
A-2 to A-4 came there and demanded her for sex as "आम्हाला पण संभोग करू दे"
and threatened her that otherwise they would disclose about the sexual
intercourse between her and A-1 to her parents. She told the three that they
should not disclose about it; she herself will disclose everything. Yet, A-2 to
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A-4 did not listen her. She deposed that A-2 and A-3 then subjected her to
sexual assault one by one. She deposed that thereafter she went home, but, as
her parents were not at home, she did not disclose the incident to anybody.
PW-1 deposed that her parents returned home on 21/03/2016, at 4.00
pm. She disclosed about the incident to her parents at 9.00 pm. She deposed
that on 22/03/2016, at about 9.00 am, she alongwith her parents went to A-3
and her parents enquired with A-3. However, A-3 got annoyed, so, he abused
and drove them out of his house. She deposed that then they went to the
police station and she filed her Report (Exh.22) which the police reduced into
writing as per her narration. PW-1 identified the Report and testified that, its
contents are correct and true. She has identified to all the four accused.
PW-1 has deposed that at the time of the incident, she had red bangles
in hand. She had shown the spot of incident to the police. The police had
collected the plastic bangle pieces from the spot. She had handed over her
clothes to the police, which she had worn at the time of incident. PW-1 has
identified the bangle pieces (Art-A) and her clothes i.e., Top (Art.B), Salwar
(Art.C) and Knicker (Art.D).
14. In the cross-examination, PW-1 admitted that she did not disclose the
incident to her brother "K" as he was younger to her. The mobile phone
mentioned in the Report was of her brother 'SB'. Her brother had a motor-
cycle. There was a police out-post at village Umrale. The distance between
Umrale and village 'S' was about 15 minutes by vehicle. The distance between
village 'S' to village Dindori was half an hour by vehicle.
PW-1 has admitted that A1 was related to her. It was a distant relation.
However, nothing was asked to explain that relationship. She has admitted
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that she had a house in the village and also a house in the agricultural field.
Her agricultural land was situated at about 3 to 4 kms. from her house. The
agricultural land of A-1 was adjacent to her agricultural land.
PW-1 has admitted that she had started from her house at about 11.00
am approximately, by informing her family members. Her agricultural field
was at half an hour distance from her house. She has admitted that there
were three routes to proceed towards her agricultural field. Two routes were
from Mr Shinde's agricultural field and one was a Tar road. She had
proceeded from her village from the agricultural field of Mr Shinde. She has
denied that said road was used by many people. She has admitted that there
was a Mango tree at a distance of 1 ½ kms from the village. There was a place
by name Shepu Ohol at a distance of 500 mtrs. from that Mango tree. There
was an agricultural field of Mr.Shinde and Shinde Vasti at a distance of half
km from Shepu Ohol. She has admitted that the houses of A-2 and A-3 were
situated beyond the bank of Shepu Ohol.
She has admitted that there were big thorny bushes of Karvandi at 2 to
3 places on the said road. She has admitted that there were houses at the
distance of 15 to 20 ft. from the said Karvandi bushes. She has admitted that
she had shouted for help. She had not disclosed about the incident to
anybody after reaching home. She had disclosed about the incident to her
parents on 21.03.2016, at about 4.00 pm. She has denied that A-1 had not
lifted her.
PW-1 has admitted that her clothes were seized by the police before she
was referred to the Civil Hospital, Nashik. She has denied that said clothes
were not on her person at the time of the incident. She has denied that she
deposed false that she had produced her clothes before the police. She has
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denied that she had suffered a menstrual period prior to the incident. She has
admitted that the menstruation had occurred on 22/03/2016. She has denied
that she has deposed false that she had shown the spot to the police; that, her
bangle pieces were found at the spot; that, her parents were willing to
perform her marriage with A-1; that, the parents of A-1 had declined for the
marriage; that, on that account her parents had developed a grudge against
A-1, and therefore, her brother and father forced her to file false Report
against A-1.
15. PW-2 Sanjaykumar Chavan deposed that PW-1 had shown the spot of
the incident which was situated on Sonegaon Nalegaon kachha road, near the
stream namely Shepu cha Ohol. The grass at the spot was scattered. Some
pieces of broken bangle were found at the spot. The police collected the
bangle pieces, packed in a paper and sealed the packet with the label bearing
signature of panchas. Accordingly, the police recorded the Spot Panchnama
(Exh.36) which he has identified including his signature. He has deposed that
thereafter they returned to the police station. On the same day, at about 5.00
pm, the police seized the clothes of the victim which were produced by her
mother. The police seized, packed and sealed the clothes with the label
(Exh.39) bearing signatures of the panchas. PW-2 has identified the pieces of
the bangles and the clothes of PW-1.
PW-2 has deposed that on 23/03/2016, at about 6.00 pm, the accused
were present in the police station. They produced the clothes which were on
their person, by changing with other clothes. The police had packed those
clothes in separate paper, sealed it with labels and recorded the seizure
panchnama (Exh.40). He has identified the clothes of A-1, A-2 and A-3 (Art.E
to Art.P respectively) and the lables (Exh.41).
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15.1 In the cross-examination, PW-2 has admitted that they had proceeded
by Nalwegaon Kochargaon tar road. They stopped the vehicle after travelling
one to one and half kms. from the tar road. The place of incident was at a
distance of 50 to 100 mtrs. where they had stopped. There were 3 to 4 houses
near the place where the vehicle was halted. There was one house of Sunil
Shinde. The alleged spot of incident was situated in the stream itself. There
were 7 to 8 Karvandi bushes on the spot of the incident. The rest of the cross-
examination of PW-2 is nothing but denial of his evidence in the examination
chief and the seizure of clothes etc.
16. PW3 - Dr Tejale testified that on 22/03/2016, PW-1 was referred to
Civil Hospital, Nashik for medical examination alongwith the letter (Exh.44).
Initially, PW-1 was examined by the CMO, and then, she examined her. PW-3
deposed that, on external examination of PW-1, the labia majora was having
swelling and oedema. Her hymen was torn. She was having the second day of
menstruation cycle and she was bleeding. She collected the blood and other
samples of PW-1. She reserved her opinion pending the samples reports.
Accordingly, she had issued the medical certificate (Exh.45).
17. PW5 - Ghanashyam Harale deposed that as directed by API Ranjve, he
had carried the seized muddemal articles to the FSL, Nashik in a sealed
condition. In the cross-examination, PW5 has admitted that the muddemal
articles were in the custody of the muddemal clerk but he did not receive it
from the said clerk. He does not know where the samples were lying and its
condition prior to the same were handed over to him.
18. PW6 - PSI Khanderao Ranjve, Investigating Officer deposed that he
arrested the A-1 on 22/03/2016 and A-2 to A-4 on 23/03/2016 under Arrest
Panchnamas (Exh.58 to 61 respectively). He then issued the letter (Exh.56)
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and referred the accused persons to Rural Hospital, Dindori for their medical
examination and taking samples of their blood, semen, pubic heirs, nails etc.
On the same day, he alongwith panchas had visited the spot of the incident,
situated at village Kochargaon. He had inspected the spot. The pieces of
broken bangles of the victim were found on the spot. He seized the same and
recorded Spot Panchnama (Exh.36). He then seized the clothes of PW-1 and
recorded the Panchnama. (Exh.38). Thereafter he seized the clothes of the
accused persons in the presence of the panchas, packed it and sealed with the
labels (Exh.41) bearing his and panchas' signatures. Accordingly, he had
recorded the Seizure Panchnama (Exh.40). He deposited the said muddemal
articles with the muddemal clerk under the receipt (Exh.54). On 25/03/2016,
he had issued the letter (Exh.55) and referred the accused for their medical
examination as they were in police custody. He obtained the age proof of PW-
1 and her statement recorded under Section 164 Cr.P.C. He had issued the
letter (Exh.62) and forwarded the muddemal articles for C.A. PW-6 deposed
that, before completion of the investigation, he had referred the PW-1 and the
accused persons to obtain their DNA samples. He deposed that investigation
revealed that the accused had committed the gang rape. Accordingly, he
submitted the charge-sheet. Thereafter, he had forwarded the DNA samples
for analysis alongwith his letter. In this regard, he has referred his letter
(Exh.64) written to the FSL thereby calling for the DNA Reports and the
muddemal. He has identified the clothes of the victim, the pieces of broken
bangle and the clothes of the accused persons.
In the cross-examination, PW-6 deposed that there is no mention in
the FIR about breaking of the bangles. He did not seize the remaining pieces
of the bangle. He has denied that there was residential locality (residential
houses) near the alleged spot of the incident. He did not record the
statements of the persons, who were residing near the spot of incident. No
witness came forward to state that he had seen the PW-1 while proceeding
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from the said road. The accused were in his custody prior to recording of the
Spot Panchnama. He has admitted that there is no mention of the road by
which PW-1 had proceeded towards the spot of the incident. He has admitted
that the house of Sunil Shinde was not on the road near the alleged spot of
the incident. He has voluntarily stated that said house was behind the spot of
the incident. There was a house of Shinde baba on the road by which they had
proceeded towards the spot of incident. The distance between that house of
Shinde baba and the spot of incident was about 50 ft. He has denied that the
house of Shinde Baba was visible from the spot of the incident. He has
admitted that there was delay in sending the clothes of the victim to the CA.
He has not recorded the statement of independent witnesses. He had
obtained the DNA kit for collecting the DNA samples, however, he has not
produced the letter correspondence about the same. He has denied that he
has carried out a false investigation and accordingly, submitted a false
charge-sheet.
19. Assailing the aforesaid judgment and order of conviction and sentence
passed by the trial Court, Ms Karnik the learned appointed counsel for the
Appellants submitted that, in her Report (Exh.22), PW-1 has not informed
that, at the time of the incident, she had red bangles of plastic on her wrist;
the bangles were broken and its pieces had fallen on the spot. It was not the
case that, when PW-1 was allegedly lifted by A-1, she had offered any
resistance or had shouted. In the cross-examination, PW-1 has admitted that
there were residential houses at a distance of 15-20 feet from the
spot/Karvandi bushes. She has deposed that she had shouted for help when
A-1 had lifted her, however, no one came there out of the nearby residential
houses. Despite PW-1 was taken to thorny-bushy area and forcibly raped on
a rough ground by three persons, she did not sustain any injury on her body.
There is considerable delay in informing the incident to her parents and filing
of the Report by her and said delay is not explained by the prosecution.
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Ms Karnik urged that there is unpardonable delay in seizure of the
clothes of A-1 and his co-accused. No evidence is adduced about the safe
custody of the said clothes after its alleged seizure. There is unnatural delay
in sending the muddemal articles including the seized clothes to the FSL for
CA, which is not explained by the prosecution. Ms Karnik critisized the DNA
report pointing that, the letter (Exh.64) states that, as per the Trial Court
Order dated 20/09/2016, the DNA samples of the accused persons were
taken at Nashik Civil Hospital on 20/09/2016, and forwarded to the FSL on
21/09/2016 by PW-6 with his letter bearing No.2943/2016. However, that
letter and the letter thereby referring the Appellants for taking their DNA
samples and the relevant DNA forms are not produced on record. Similarly,
the police who had carried and deposited the DNA samples with the FSL, was
not examined. Therefore, Ms Karnik urged that, for want of proper chain, the
CA and the DNA reports are not safe to rely upon.
In the backdrop, according to Ms Karnik, there is a reasonable doubt
about the truthfulness of the prosecution case and the Appellants are entitled
for acquittal giving benefit of said doubt.
20. Mrs Shinde, the learned APP, on the other hand, has submitted that
the testimony of PW-1 is supported with her Report and the medical evidence
of PW-3 coupled with the medical papers produced in the evidence. As per
the report of the DNA, there were semen stains on the seized clothes of PW-1
and the accused. The DNA of the semen found on the clothes of PW-1
matched with the DNA of the accused. Thus, the DNA report has provided an
additional support to the version of PW-1. The accused have not explained
the stains of semen on their clothes. There is no substance in the version of
the defence that PW-1 has filed a false Report at the instance of her father on
account of his dispute with the accused side. The accused have not explained
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as to why the witnesses including PW-1 have deposed against them. As such,
the trial Court accepted the prosecution case and convicted the accused.
Therefore, the Appeals are meritless.
Ms Chavan and Mr Warunjikar, the learned appointed counsel have
adopted the submissions made by the learned APP. They submitted that the
evidence of PW-1 alone is sufficient to bring home the guilt of the accused.
Because her evidence, corroborated by other witnesses and the documentary
evidence clearly shows that after the sexual assault on her by the A-1, she was
threatened by the rest accused. She then was forcibly raped by A-2 and A-3.
However, A-1 and A-4 did not object them nor helped the PW-1. Therefore,
the trial Court held the accused guilty of the gang rape. As such, the
impugned Judgment and Order is lawful and, therefore, it need not be upset.
21. I have considered these submissions and sctutinized the prosecution
evidence keeping in mind the established principle of criminal jurisprudence
that the sole testimony of the prosecutrix, if found to be credible and
trustworthy, is sufficient to sustain a conviction for the offence of rape.
22. On careful consideration of the evidence, I find that, the testimony of
PW-1, that the A-1 to A-3 had committed sexual intercourse with her is very
consistent with her Report and the medical evidence. Nothing has been
elicited in the cross-examination to dilute her said claim. There is nothing in
the evidence showing that PW-1 and her father had any enmity with the
accused persons to falsely implicate them in this serious offence. On the
contrary, considering that PW-1's brother had been married merely 2-3 days
prior to the incident, it is inconceivable that PW-1 and her father would have
indulged in concocting a false story of the rape against all the accused and, on
that basis, lodged a false report.
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23. It is important to note that, the testimony of PW-1 that just before
filing of the Report she alongwith her father had visited the house of A-3 to
question him about the incident, is not put to any challenge. Till 22/03/2016,
PW-1 and her father had no reason to go to A-3's house and question him
about the incident. That apart, in the cross-examination of PW-1, it has come
that on 22/03/2016 her father had assaulted to A-3. This fact supported the
testimony of PW-1 that, she and her father had visited the house of A-3, as
there was no reason for PW-1's father to suddenly assault the A-3. Thus, the
post-incident conduct of PW-1 and her father appears to be entirely natural,
and such conduct inspires confidence in the version put forth by PW-1.
24. Now turning to the medical evidence. Cumulatively, the evidence of
PW-6, PW-1 and PW-3 indicates that, after registration of the FIR, PW-6 had
issued the letter (Ehx.44) and referred PW-1 to Nashik Civil Hospital, for her
medical. PW3-Dr Tejale had examined the PW-1, and found that, her labia
majora was having swelling and oedema. This was the condition even after
two days of the incident. In addition, PW-3 noticed that the hymen was torn.
This evidence of PW-3 was founded on the medical report (Exh.45) issued by
her. The aforesaid evidence of PW-6, PW-2 and PW-3 and the documents
they referred did not receive sufficient challenge in their cross-examination.
Thus, said evidence has proved that, due to the rape by A-1 to A-3, the labia
majora had suffered swelling and oedema so also the hymen was torn. Said
fact has corroborated the story of the sexual intercourse. No doubt, at the
time of the medical examination, PW-1 was undergoing the menstruation.
However, it was not the defence that the menstruation was the cause of the
swelling of the labia majora and the oedema. As such, the medical evidence of
PW-3 cannot be brushed aside and held as insufficient.
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24.1 Ms Karnik submitted that PW-3 had reserved her opinion as to the
rape. Therefore, her evidence is of no avail in this case. However, in the cross-
examination, PW-3 has specifically denied that there was no sign of the
sexual assault on PW-1. That apart, the absence of the opinion of PW-3 as to
the rape is not sufficient to reject the assertion of PW-1 that she was
subjected to sexual intercourse by the three. In this regard, it is useful to refer
the decision in case of Ganga Singh Vs. State of M.P.3, wherein it has been
held that,
"Even though there was no medical evidence to
corroborate the testimony of the prosecutrix, such
corroboration is not necessary where the evidence of
the prosecutrix was otherwise consistent and stood
corroborated by other circumstances and the FIR".
25. Admittedly, there is delay in filing the Report (Exh.22). However, it is
trite that mere delay itself is not sufficient to disbelieve the victim's version in
such cases of rape. Looking at the fact that three persons had committed the
sexual intercourse with the victim, who was just aged 16 years, it was natural
that she must be disturbed, needed courage to disclose about the incident to
her family, being worried for the family reputation in the small village,
because the new daughter-in-law was welcomed in the family just 2-3 days
before the alleged incident.
While dealing with similar question as to delay in lodging an F.I.R. of
the incident of a gang rape, in the case of Mohammed Ashfaq Dawood Shaikh
Vs. The State of Maharashtra 4, in paragraph 79, this Court observed that, "...
the law on the aspect of delay in lodging the F.I.R in such cases is no more res
integra and by a catena of decisions, it has been held that if delay has been
3 (2013) 7 SCC 278
4 2022 All MR (Cri) 402
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properly explained, then there should not be any reason to suspect any
embellishment or afterthought. ...The Hon'ble Supreme Court in the case of
Amar Singh Vs. Balwinder Singh and others5, held thus;
"Mere delay by itself is not enough to reject
prosecution case unless there are clear indications of
fabrication. Delay by itself is not a circumstance to
doubt the prosecution case. At the most, it will call
upon the Court to subject the evidence to a closer
scrutiny. However, unless there are indications of
fabrication, the court cannot reject the prosecution
version as given in the FIR and later substantiated by
the evidence merely on the ground of delay. These are
all matters of appreciation and much depends on the
facts and circumstances of each case and for this a
host of circumstances like the condition of the
informant, the nature of offence, the circumstances in
which the incident has taken place etc. have to be
taken into consideration". In the words of the Apex
Court, "There is no mathematical formula by which an
inference can be drawn either way, merely on account
of delay in lodging the FIR".
25.1 In the case in hand, PW-1 has categorically stated that, after the
incident when she had returned home, only her younger brother "K" was
there. Her parents came home on the next day. And 4 hours thereafter,
she had disclosed about the incident to her parents, but it was a night
time. This was followed by the natural conduct of the father and the
daughter in visiting the house of A-3 to question him about the incident,
as it was A-3 who had initially met PW-1 and sought her company.
26. The learned APP Mrs Shinde submitted that on the strength of the
testimonies of PW-2, PW-6, and Seizure Panchnamas, the prosecution has
5 (2003) 2 SCC 518
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proved that the clothes of PW-1 and the clothes of the accused persons were
seized. Further, Mrs Shinde submitted that, as requested by PW-6 in his
letter (Exh.56), the accused persons were medically examined at the Rural
Hospital, Dindori and the samples of their blood, semen etc were taken.
Pointing the relevant testimonies of PW-5, PW-6 and the muddemal
forwarding letter (Exh.62), Mrs Shinde urged that said evidence has proved
that all the clothes and the samples were deposited with the FSL in a sealed
condition. Then, as deposed by PW-6 and stated in his letter (Exh.64) issued
to the FSL thereby calling for the DNA report, the blood and the DNA
samples of the accused were deposited with the FSL, the same were analysed
and finally, the CA and the DNA Reports were issued.
The report of the DNA indicates that, the DNA of the semen stain
found on the seized top (Art-B) of PW-1 tallied with the DNA of A-1 and the
DNA of the semen stain found on the underwear (Art.-G) of A-1.The DNA of
the semen stain found on the knicker (Art-D) of PW-1 tallied with the DNA of
the blood sample of A-3 and the DNA of the semen stain found on the
underwear (Art.-P) of A-3. Similarly, the DNA of the semen stain found on
the seized pant (Art-I) of A-2 tallied with the DNA of his blood. In the
backdrop, the Ms Shinde urged that the CA and the DNA reports have
provided an additional corroboration to the testimony of PW-1.
27. Nevertheless, the CA and the DNA reports are not dependable or safe
to place an implicit reliance upon the same. In this regard, first, it is
important to note that, according to PW-1 she herself had produced her
clothes before PW-6 but PW-2 has deposed that PW-1's mother had produced
the said clothes. Secondly, the alleged clothes of the victim were seized on the
next day of filing the Report (Exh.22). However, said delay is not explained.
Thirdly, which is most important circumstance, as recorded in the medical
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report (Exh.45) issued by PW-3, the clothes of PW-1 were changed and
washed after the incident. As such, there was a very remote possibility of the
presence of the semen stains on the top and the knicker of PW-1. However,
for the best reason known to her, PW-3 has not deposed the fact of changing
and washing of the clothes by PW-1. Therefore, an adverse inference is
permissible that since the clothes were changed and washed, there were no
semen stains, and that, since said fact was favouring the defence but not the
prosecution case, therefore, the prosecution has suppressed the fact of
changing and washing of the clothes by PW-1.
27.1 This takes to the seizure of the clothes of the accused persons and the
evidence as to chemical analysis. The Arrest Form of the A-1 mentions that he
was arrested on 22/03/2016, at 22.57 hours. However, his clothes were not
immediately seized by PW-6. The A-2 to A-4 were arrested on 23/03/2016, at
13.24 hours. Thereafter, PW-6 went to record the Spot Panchnama, he then
seized the clothes of PW-1 and lastly, he seized the clothes of the accused
persons after their medical examination was over. Admittedly, the incident
had occurred on 20/03/2016. Looking at the Spot Panchnama, the spot was
not a very clean place. As such, the possibility of the clothes of the accused
persons getting dirty cannot be ruled out and so the washing of said clothes
post the incident. However, it is surprising that the same clothes were
retained by the accused on their persons. This is highly improbable. There is
significant delay in sending the seized clothes to the FSL for the CA.
27.2 In the backdrop, the prosecution's claim that the semen stains were
found on the top and knicker of PW-1 as well as the said clothes of A-1 to A-3,
is very doubtful. Therefore, the DNA report cannot be relied.
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To support this conclusion, reference may be made to the decision in
Prakash Nishad @ Kewat Zinak Nishad vs. The State of Maharashtra 6, cited
by Ms Karnik. Therein no witness had deposed the fact of medical
examination of the appellant, as is stipulated under Section 53-A of the
Cr.P.C. Who took the samples of the body parts of the appellant, if at all, was
a mystery. The samples of the blood and semen of the appellant were sent for
forensic analysis but there was nothing on record to establish as to who took
such samples, on what date, on how many occasions and why were they not
sent all at once. It was noticed that none of the police officials had testified to
the formalities of keeping the samples safe and secured. There was only one
document on record, indicating the appellant was medically examined. But
even that document did not reveal sample of the body part being drawn. In
any event, the doctor who had conducted such examination, has not stepped
into the witness box to testify the correctness of the contents thereof. The
first alleged blood sample of the appellant collected on 14/6/2010 was sent
for the analysis with the communication dated 16/6/2010. The second
alleged blood sample of the appellant taken on 20/7/2010 was sent the very
same day. However, the delay in sending the sample was not explained.
Therefore, it was held that the possibility of contamination and the
concomitant prospect of diminish in value cannot be reasonably ruled out. In
this situation, the Apex Court declined to hold the DNA Report to be
dependable.
In Anil vs. State of Maharashtra7, the Hon'ble Supreme Court observed
that DNA profiles have had a tremendous impact on criminal investigations.
DNA profile is valid and reliable, but the same depends on quality control
and procedures in the laboratory. That quality control and procedures
outside the laboratory matter equally as much in ensuring that the best
6 [2023] 8 S.C.R. 152
7 (2014) 4 SCC 69
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results can be derived from the samples collected. There are quite a few cases
in which DNA evidence, despite being there, has to be rejected for the reason
that the manner, in which the samples were handled during and after
collection by the concerned doctor, in transit to the lab, inside the lab and the
results drawn therefrom, are not in accordance with the best possible
practices which would focus on ensuring that throughout this process the
samples remain in pristine, hygienic and biologically suitable conditions.
In Kattavellai @ Devakar vs. State of Tamilnadu8, reference was made
to the decision in Prakash Nishad (Supra), which was a case concerning the
rape and murder of a 6-year-old child. Based on the disclosure statement
made by the Appellant therein, the police found certain garments as also
traces of semen of the Appellant on the vaginal smear of the minor victim,
based on which he was sought to be convicted. However, the DNA evidence
had to be rejected by the Apex Court on the grounds of delay in sending the
samples to the FSL, which was unexplained. It was observed that because of
the delay, the concomitant prospect of contamination could not be ruled out.
Thus, the need for expediency in sending samples to the concerned
laboratories was emphasised.
28. Nevertheless, in the case in hand, the prosecution story cannot be
disbelieved because, in such cases, the DNA reports are useful for the
purpose of corroboration. It is not the law that in the absence of the DNA
evidence or unreliable DNA evidence or on account of the mistakes in the
investigation on the part of investigating police, such cases of rape should be
disbelieved, although, the testimony of the prosecutrix in the case is of
sterling quality and strengthen with other piece of corroborative evidence
thereby proving the charge against the accused. It is now fairly well settled
8 2025 SCC OnLine 1439
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that the prosecutrix is not an accomplice and that if the evidence of the
prosecutrix inspires confidence it can be acted upon without corroboration.
To substantiate this conclusion it is apt to refer the decision in Raju @
Umakant vs. The state of Madhya Pradesh9. Therein, the Hon'ble Supreme
Court has observed and held that :
"18. ... a woman or a girl subjected to sexual assault is
not an accomplice but a victim of another person's lust
and it will be improper and undesirable to test her
evidence with suspicion. All that the law mandates is
that the Court should be alive to and conscious of the
fact that it is dealing with the evidence of a person who
is interested in the outcome of charge levelled by her
and if after keeping that aspect in mind if the Court is
thereafter satisfied that the evidence is trustworthy,
there is nothing that can stop the Court from acting on
the sole testimony of the prosecutrix. ..."
(Emphasis supplied)
29. In the wake of above, I hold that it has been proved beyond a
reasonable doubt that on the relevant date, at time and place A-1 had
committed sexual intercourse with the victim; that, thereafter, A-2 to A-4
came there and they had demanded her to let them sex with her; and then the
A-2 and A-3 then committed sexual intercourse with her.
30. Now, the most crucial question to be determined is, whether all the
accused persons were guilty of the offence of 'gang rape' punishable under
Section 376D IPC Said Section 376 reads :
9 2025 INSC 615
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376D. Gang rape.-Where a woman is raped by one or more
persons constituting a group or acting in furtherance of a
common intention, each of those persons shall be deemed to
have committed the offence of rape and shall be punished with
rigorous imprisonment for a term which shall not be less than
twenty years, but which may extend to life which shall mean
imprisonment for the remainder of that person's natural life,
and with fine:
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.
31. From the language used in Section 376D, it can be seen that, the joint
penal liability would arise for this offence only when the evidence adduced by
the prosecution indicate that one or more persons constituted a group or had
acted in concert and in such an event, if rape had been committed by even
one, all the accused will be guilty irrespective of the fact that the victim had
been raped by one or more of them.
32. In the case in hand, there is no direct evidence to show and establish
that, before the incident, the four accused had come together and constituted
the group to commit rape on PW-1. Two or more persons can be said to have
constituted a group when they interact and share common goals or interest.
Such an interaction can manifest in various forms, such as collaboration
mutual influence, or a sense of belonging.
32.1 Earlier Section 376 (2) (g) IPC is similar to the amended Section 376D
IPC. In Ashok Kumar vs. State of Haryana10, while dealing with Section 376
10 (2003) 2 SCC 143
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(2) (g) IPC, in paragraph 8, the Hon'ble Supreme Court has observed and
held that,
"8. ..., this provision embodies a principle of joint liability and
the essence of that liability is the existence of common intention;
that common intention presupposes prior concert which may be
determined from the conduct of offenders revealed during the
course of action and it could arise and be formed suddenly, but,
there must be meeting of minds. It is not enough to have the same
intention independently of each of the offenders. In such cases,
there must be criminal sharing marking out a certain measure of
jointness in the commission of offence." (Emphasis supplied)
In Priya Patel vs State Of M.P. & Anr. 11, the Apex Court has observed
that, "Common intention" denotes action in concert and necessarily
postulates a pre-arranged plan, a prior meeting of minds and an element of
participation in action. The acts may be different and vary in character, but
must be actuated by the same common intention, which is different from
same intention or similar intention. The sine qua non for bringing in
application of Section 34 IPC that the act must be done in furtherance of the
common intention to do a criminal act. The expression "in furtherance of
their common intention" as appearing in the Explanation to Section 376 (2)
relates to intention to commit rape." (Emphasis supplied)
33. In the case in hand, to determine as to whether the accused persons
were guilty of Section 376D of IPC or not, the sequence of the events leading
to the incident is important. Sequentially, first, the A-3 approached the PW-1
and said her to sit along with him under the Mango tree. Next, the PW-1
immediately refused that demand by the A-3 and walked ahead some
distance. The A-1 then came across her, lifted her to the spot and committed
forcible sexual intercourse with her and at that juncture, A-2 to A-4 came
11 AIR 2006 SC 2639
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there. The Report (Exh.22) also mentions that during the intercourse by A-1,
the A-2 to A-4 had arrived at the spot and demanded PW-1 for sexual
intercourse with her, threatening that, otherwise, they would expose her and
A-1 to her parents. PW-1 tried to avoid them saying that they should not
disclose about it; she herself will disclose everything. Yet, A-2 to A-4 did not
listen her and A-2 and A-3 then subjected her to sexual assault one by one.
34. Nevertheless, the aforesaid facts are not sufficient to hold that A-1 was
guilty of the offence of the gang rape on account of he had sexual intercourse
with PW-1. Because, PW-1 has not informed the time gap between when A-3
had approached her and when A-1 had lifted her. There is no iota of evidence
showing that prior to the said act by A-1, all the four accused had constituted
the group or they had shared their mind and acted in concert to commit the
rape, i.e., firstly, by A-1 and then by A2 and A-3.
34.1 Secondly, it is necessary to note that, although PW-1 was lifted by the
A-1 and taken to the spot through the thorny bushes of Karvandi tree
(conkerberry), neither she has deposed the manner of lifting her nor did she
offer any resistance to her lifting. Surprisingly, she did not sustain any injury
due to the thorny bushes, during disrobing her and during the incident of
rape by A-1. This fact is evident from the medical evidence. No doubt, the
pieces of broken bangles indicative of the resistance by her, however, in her
Report (Exh.22) neither she has stated about the fact of bangles on her wrists
nor its breaking when the A-1 had allegedly lifted her. In the cross-
examination, PW-1 has deposed that she had shouted when she was lifted.
However, her Report is silent about such shouting. That apart, her shout did
not attract anyone from the residential houses which were at the distance of
15-20 feet as per her own admissions.
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34.2 Thirdly, as stated by PW-1 in her Report, she was residing in the house
situated in her Malla, in "S" Shivar and the A-3 used to reside near her
agricultural land. As such, they must be knowing each other. The A-3 was
elder-most amongst all the four accused. However, when the A-2 to A-4 came
at the spot, PW-1 did not complain to A-3 against the A-1 nor demanded him
for help. Thereafter, when A-2 to A-4 demanded for sexual intercourse with
her by threatening her as above, instead of objecting their demand for sex
and the threat, what PW-1 said the three accused was that, they should not
inform her parents about the act of A-1; she herself will disclose everything.
In the cross-examination of PW-1, it has come that the houses of A-2 and A-3
were situated beyond the bank of Shepu Ohol, which was a place nearby the
spot of the incident, as discernible from the Spot Panchnama. As indicated in
the Spot Panchnama, the house of A-4 was near the spot of the incident.
34.3 Additionally, what cannot go unnoticed is that, PW-1's brother "K" was
in the field. However, she did not inform the incident to her brothers 'K' and
'SB'. PW-1 has admitted that she had informed the incident to her parents on
21/03/2016 at 04.00 pm when they had returned home. Here it is important
to note that, when PW-1 informed about the incident to her parents, they
were expected to first go to the house of the A-1 and question him as he was
resident of the same village "S". It appears that village "S" was close to
Kochargaon Shivar, where the A-2 to A-4 used to reside. However,PW-1 and
her parents went to the house of A-3 that too on the next day.
34.4 In view of the above facts and circumstances, it appears that, PW-1
willingly went to the spot alongwith A-1 and then the two were involved in
consensual sex. However, the A-2, A-3 and A-4 spotted them as they were
residing very close to the spot. Therefore, A-2 to A-4 went there to take
advantage of the situation and demanded PW-1 for sex, by threatening her
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that, otherwise, they will inform about her and A-1's said act to her parents.
Undoubtedly, this must have been a highly embarrassing and awkward
situation for both PW-1 and A-1, they being just 16 and 19 years old. Since
A-2 to A-4 were residing in the nearby village, therefore, they must have been
acquainted with the PW-1's family and they were likely to inform her parents
about her sexual intercourse with A-1. Therefore, it is safe to presume that
PW-1 and A-1 both must have been scared, helpless and the A-1 alone could
not resist the A-2 to A-4 due to that difficult situation. And to salvage the
situation, PW-1 told the A-2 to A-4 that they should not inform her parents
about the act of A-1; she herself will disclose everything to them. This defence
was not taken by A-1. However, since it was made out, therefore, its benefit
must be given to the A-1, because, the presumption of innocence is always in
favour of the accused.
34.5 In view of aforesaid discussion I am of the considered view that the A-1
was not guilty of the offence of gang rape under section 376D IPC only for the
reason that of he had committed the sexual intercourse with PW-1.
34.6 Be that as it may. The A-1 was certainly guilty of the offence of rape as
defined in Section 375, Sixthly, punishable under Section 376 (1) IPC and of
'Penetrative sexual assault' as defined in Section 3 and punishable under
Section 4 (1) POCSO Act because, on the day of the incident PW-1 was the
child below 18 years of age. Therefore, her consent for the sexual intercourse
with A-1 was immaterial.
34.7 Looking at the conduct of A-2 to A-4 of first demanding for sex to PW-1
by threatening her as above and the following act of sexual assault committed
with her by A-2 and A3, the conclusion is inevitable that the A-2 and A-3
were guilty of the offence of Section 376D. Similarly, the conduct of A-4 in
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joining the demand for the sex and not helping her in embarrassing and
painful situation when A-2 and A-3 committed sexual intercourse without
her consent, the A-4 has definitely abetted and contributed to the act of the
sexual assault on PW-1 by the A-2 and A-3. Therefore, A-4 was also equally
guilty of the offence of Section 376D IPC. In short, said gang rape was
committed by A-2 and A-3 in furtherance of the common intention of the A-2
to A-4 as they all had mentally and physically come together with that object.
34.8 In this background, as provided in Section 30 POCSO Act, it shall be
presumed that A-1 had the mental state to have sexual intercourse with PW-1
and the A-2 to A-4 had the mental state to commit the gang rape on PW-1.
Absolutely, there is no substance in the defence taken by A-1 to A-4, thus,
they had miserably failed to rebut this presumption.
35. The upshot of the above discussion is that the learned trial Court has
properly appreciated the evidence of the prosecution and rightly held that, at
the relevant time and place of the incident, PW-1 was proved to be a child
below 18 years of age and it was proved that A-1 had committed the sexual
intercourse with PW-1. Further it has rightly held that the prosecution has
proved that during the said act, A-2 to A-4 came there and demanded PW-1
for sexual intercourse by threatening her to expose her and A-1 to her
parents. PW-1 tried to avoid them, but, the A-2 and A-3 committed the gang
rape on her.
However, on a holistic assessment of the prosecution evidence, the
finding and conclusion recorded by the trial Court that the A-1 was also part
of the act of gang rape committed by the A-2 to A-4 and therefore, he was
also guilty of the offence of Section 376D IPC, is not supported with
materielin the evidence on record. Yet, on account of having had the
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consensual sexual intercourse with PW-1 who was then aged 16 years, the A-1
was only liable for the offence of Section 376 (1) IPC as well as Section 4
POCSO Act.
36. In so far as the impugned sentence is concerned, the A-2 to A-4 have
been sentenced to suffer the minimum sentence of imprisonment provided
for the offence of Section 376D which is proper.
36.1 Section 42 POCSO Act has been prescribed for "Alternate punishment"
and it then provided that, "Where an act or omission constitutes an offence
punishable under this Act and also under sections 166A, 354A, 354B, 354C,
354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the
Indian Penal Code (45 of 1860), then, notwithstanding anything contained in
any law for the time being in force, the offender found guilty of such offence
shall be liable to punishment only under this Act or under the Indian Penal
Code as provides for punishment which is greater in degree."
The sentence (before amendment) then provided for the offence of
Section 376 (1) IPC was "rigorous imprisonment for a term which shall not be
less than seven years, but which may extend to imprisonment for life, and
shall also be liable to fine". The sentence (before amendment) then provided
for the offence of Section 4 (1) POCSO Act was "imprisonment for a term
which shall not be less than seven years, but which may extend to
imprisonment for life, and shall also be liable to fine". Thus, only distinction
is the word "rigorous" stated in Section 376 (1) IPC. Therefore, considering
the fact and circumstances of the case and looking at the object of the
provisions of Section 42 POCSO Act, it was appropriate to sentence the A-1
only under Section 376 (1) IPC to suffer the minimum punishment provided
thereunder.
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37. In view of my aforesaid findings and conclusions, I hold that the
impugned Judgment and Order of conviction and sentence is suffering from
the aforenoted infirmity and therefore needs an interference to modify the
same, accordingly.
38. As a corollary, the Appeals filed by A-2 to A-4 fail and therefore liable
to be dismissed and the Appeal filed by A-1 deserves to be partly allowed,
accordingly. Hence, I pass the following Order :
38.1 Criminal Appeal No.276 of 2017 and No.142 of 2017 are dismissed and
Criminal Appeal No.343 of 2022 is allowed in part.
38.2 The impugned conviction and sentence under Section 376D IPC and
the conviction under Section 4 POCSO Act recorded against the A-2 Popat
Kisan Rahire, A-3 Ramdas Kacharu Lilake and A-4 Shrawan Kashinath Lilake
is hereby upheld.
The A-4 Shrawan Kashinath Lilake is on bail. His bail bonds stand
surrendered. The A-4 shall surrender before the trial Court on or before
02/02/2026, to undergo the remaining sentence.
38.3 The impugned conviction and sentence under Section 376D IPC
recorded against the A-1 Shri Balu Sukhdeo Tongare is quashed and set aside.
The A-1 Balu Sukhdeo Tongare is acquitted of the said charge. However, the
conviction of the A-1 under Section 4 POCSO Act is upheld.
Instead, the A-1 Shri Balu Sukhdeo Tongare is hereby convicted under
Section 376 (1) IPC and he is sentenced to suffer rigorous imprisonment for a
period seven years and to pay fine of Rs.5,000/- and in default of payment of
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fine, the A-1 shall suffer further R.I. for 1 years. The A-1 shall be entitled for
set off under Section 428 Cr.P.C. In view of Section 42 POCSO Act, no
separate sentence is imposed on A-1 for said offence under Section 4 POCSO.
The A-1 Shri Balu Sukhdeo Tongare is in jail. He has already
undergone the substantive sentence imposed on him. Hence, A-1 shall be
released forthwith if not required to be detained in any other crime/case.
(SHYAM C. CHANDAK, J.)
20th January 2026
