[Cites 20, Cited by 0]

Bombay High Court

Shri. Sachin Manohar Dongre vs The State Of Maharashtra Thr Pso Ps ... on 22 January, 2026

2026:BHC-NAG:1027


                                                      1                                cr.appeal.327.23-J.odt


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH : NAGPUR


                                    CRIMINAL APPEAL NO. 327 OF 2023



                    Ramji s/o. Raju Pungati,
                    Aged - 28 years, Occ.: Cultivator,
                    R/o. Laheri, Tq. Bhamragad,
                    District - Gadchiroli.                                       ... APPELLANT

                              ...VERSUS...
               1. The State of Maharashtra,
                  Through Police Station Officer,
                  Police Station, Armori, Tq. Armori,
                  District - Gadchiroli.

               2. XYZ (Victim)
                  through its Complainant,
                  Crime No.05/2018, Registered with
                  Police Station, Armori, Tq. Armori,
                  District - Gadchiroli.                                         ...RESPONDENTS
              ------------------------------------------------------------------------------------------------
              Ms. Kirti Deshpande, Advocate (Appointed) for Appellant.
              Mr. U. R. Phasate, A.P.P. for Respondent/State.
              Ms. C. S. Bhute, Advocate (Appointed) for Respondent No.2.
              -----------------------------------------------------------------------------------------------

              CORAM : NEERAJ P. DHOTE, J.
              JUDGMENT RESERVED ON : 12.01.2026.
              JUDGMENT PRONOUNCED ON : 22.01.2026


              JUDGMENT :

1. This Appeal under Section 374(2) of the Code of Criminal

Procedure, 1973 (for short, 'Cr.P.C.') is directed against the Judgment

and Order dated 04.02.2021 passed by the learned Judge, Special

Court, Gadchiroli in Special POCSO Case No.49/2018 convicting the 2 cr.appeal.327.23-J.odt

Appellant as follows :

"1] Accused Ramji s/o. Raju Pungati is hereby convicted of the offence punishable under Section 376(2)(f) of the Indian Penal Code in view of provision of Section 235(2) of Criminal Procedure Code and he is hereby sentenced to suffer rigorous imprisonment for 15 years and to pay a fine of Rs.10,000/- (Rs. Ten thousand only), in default to suffer simple imprisonment of 3 months.

2] Accused is further hereby convicted of the offences punishable under Section 4, 6, 8 and 10 of Protection of Children from Sexual Offences Act, 2012, however, no separate sentence has been imposed on accused, inasmuch as sentence relating to same type of incriminating act has already been passed while punishing accused for the offence punishable under Section 376(2)(f) of Indian Penal Code.

3] Accused is in jail since 24.10.2018 till today. Therefore, he is entitled to get the benefit of set off under Section 428 of Criminal Procedure Code relating to such period."

2. The prosecution's case as reveals from the police report is

as under :

The first informant was residing at village Laheri, Taluka

Bhamragad, District Gadchiroli with her family comprising the child

aged 5 years (henceforth called as "Victim"). The wife of the

Appellant and the Informant are the real sister. The Appellant though

3 cr.appeal.327.23-J.odt

was the resident of village Murangal, he was residing in the village

Laheri. On 15.10.2018, around 2.00 p.m. the Informant dropped the

Victim at the house of the Appellant before going to forest for

collecting fire wood. The Informant returned home at 4.00 p.m. and

went to the house of the Appellant to get the Victim with her. She

brought the Victim at home. The Victim complained of pain in her

private part. The Informant ignored the same and thought that it

might be due to itching. The pain did not subside. On 19.10.2018,

again the Victim complained of pain in her private part. The

Informant checked the private part of the Victim and found swelling

and redness on the same. She inquired with the Victim about the

same and the Victim informed her that, the Accused/Appellant

inserted his private part into her private part by taking her on the

bed. The informant went to the house of the Appellant to question

him. The Appellant kept quiet. Eventually, on 20.10.2018, the

Informant lodged the report against the Appellant with the concerned

Police Station and crime bearing No.5/2018 came to be registered for

the offences punishable under Sections 376(2)(m) and 376(2)(i) of

the Indian Penal Code, 1860 (for short, "IPC") and for the offences

punishable under Section 4, 8 and 10 of the Protection of Children

from Sexual Offences Act (for short, "POCSO Act").

4 cr.appeal.327.23-J.odt

3. During the investigation, the Victim was referred for

medical examination. Spot Panchanama was drawn. The statement

of the Victim came to be recorded. The clothes of the Victim came to

be seized. The Appellant came to be arrested. The Appellant was sent

for medical examination. The clothes of the Appellant came to be

seized from his house pursuant to Section 27 of the Indian Evidence

Act, 1872. The statement of witnesses were recorded. On completion

of the investigation, the Appellant came to be charge -sheeted.

4. On committal, the learned Trial Court framed the Charge

against the Appellant for the offences punishable under Sections

376(2)(f) and 376(2)(i) of the IPC and for the offences punishable

under Sections 4, 8 and 10 of the POCSO Act below Exhibit - 4. The

Appellant pleaded not guilty and came to be tried. To prove the

charge, the prosecution has examined seven (7) witnesses. The

mother of the Victim, who lodged the report is examined as P.W.-1.

Vatsala Antuji Tambde, the Panch for the spot and seizure of the

clothes of the Victim is examined as P.W.-2. Ankesh K. Atlami, the

residents of the village Laheri is examined as P.W.-3.

Vaishali Prabhakar Konmuttiwar, in whose presence the clothes of the

Appellant and the blanket were seized from his house is examined as

P.W.-4. The Medical Officer Minakshi T. Jambhulkar, who examined

the Victim is examined as P.W.-5. Ms. Karuna K. Chaugule, Women 5 cr.appeal.327.23-J.odt

P.S.I., who took the report, registered the crime and conducted some

part of investigation and submitted the chrege-sheet is examined as

P.W.-6. Mr. Shashikant J. Londhe, Police Officer, who conducted

some part of the investigation is examined as P.W.-7. The relevant

documents such as the First Information Report, Panchnamas,

Medical Examination Report of the Victim, the relevant

communications, the report from Chemical Analyzer etc. are brought

on record in the evidence of the aforesaid witnesses.

5. After the prosecution filed the evidence closure pursis, the

learned Trial Court recorded the statement of the Appellant under

Section 313(1)(b) of the Cr.P.C.. The Appellant stated that, he was

falsely implicated due to the dispute in respect of the landed property.

On appreciating the evidence on record, the learned Trial Court

passed the impugned Judgment and Award convicting and sentencing

the Appellant as above.

6. Heard the learned Advocate for the Appellant, the learned

A.P.P. for the State and the learned Advocate for the respondent

No.2- Victim. Scrutinized the evidence on record.

7. It is submitted by the learned Advocate for the Appellant

that, the Victim was not examined by the prosecution and, therefore,

the learned Trial Court has erred in convicting the Appellant. On this

aspect, it is submitted by the learned A.P.P. that, in view of the other

evidence on record, non-examination of the Victim will not be fatal 6 cr.appeal.327.23-J.odt

for the prosecution. In support of his submission, he cited the

Judgment in State of Maharashtra Vs. Bandu Alias Daulat [(2018) 11

SCC 163, wherein the Victim being deaf and dumb and mentally

challenged to some extent was 14 years of age and the Victim and the

Accused therein seen together on the date of incident and rape was

confirmed by the medical evidence. There was eye witness, who saw

the Victim with the Accused therein on the date of offence. The

another case on this point relied by the learned A.P.P. is Mukish Vs.

State [2022 SCC Online Del 1762], wherein the Victim, who was 4

years old was not examined and it was observed that, being of such

tender age, the Victim was not in a position to give any statement and

it was found that the learned Trial Court was justified in holding that,

the non-examination of the Victim did not prove fatal for the

prosecution in view of the scientific evidence available on record. The

observation therein shows that the semen were detected on the

blanket which belonged to the Accused therein.

8. Coming to the case at hand, admittedly, the Victim is not

examined by the prosecution. There is no dispute in respect of the

age of the Victim. The date of birth of the Victim is deposed by her

biological mother as 09.03.2014. There is no challenge to the said

date of birth. However, no reason is brought on record by the

prosecution for not examining the Victim before the learned Trial 7 cr.appeal.327.23-J.odt

Court though her statement was recorded during the course of the

investigation. It is, therefore, clear that, in the case at hand, there is

no evidence of the Victim.

9. It is submitted by the learned Advocate for the Appellant

that, though, according to the prosecution, the incident took place on

15.10.2018, report was lodged after the period of 5 days i.e. on

20.10.2018 and there is no explanation about the delayed report and,

therefore, the possibility of false implication cannot be ruled out. On

this, it is submitted by the learned A.P.P. that, the Informant was a

rustic lady residing in the village and, therefore, the delay would not

be material. In support of his submission, he cited the Judgment in

State of H.P. Vs. Gian Chand [(2001) 6 SCC 71], wherein the

sequence of evidence seen after the crime provided satisfactory

explanation for the delay. It is observed that, " delay in lodging the

First Information Report cannot be used as ritualistic formula for

doubting prosecution case and discarding the same. Delay has effect

of putting Court on its guard, to search if any explanation has been

offered for delay, and if offered, whether or not it is satisfactory. If

prosecution fails to satisfactorily explain delay and there is a

possibility of embellishment in prosecution version on account of such

delay, delay would be fatal to the prosecution case."

10. In the case at hand admittedly, the report is lodged after 5

days. The evidence of the Informant, who is examined as P.W.-1, 8 cr.appeal.327.23-J.odt

shows that, she ignored the pain of the Victim and did not take it

serious, until third day the pain of Victim did not subside.

Undisputedly, there is no explanation for the delay. However,

considering that, the Informant was the rustic lady, residing in the

remote place in the village comprising of tribals, the said delay would

not prove fatal for the prosecution.

11. It is submitted by the learned Advocate for the Appellant

that, the evidence on record do not prove the Charge and the learned

Trial Court did not evaluate the evidence in right perspective. On the

other hand, it is submitted by the learned A.P.P. and the learned

Advocate for the Respondent No.2 that, the evidence of Victim's

mother and Medical Evidence established the Charge. The learned

Trial Court has rightly appreciated the evidence on record and no

interference was called.

12. Since the Victim is not examined by the prosecution, the

prosecution case largely rest on the testimony of the Victim's mother,

who is examined as P.W.-1. Her evidence shows that, the incident

occurred on 15.10.2018. She knew the Appellant. He was the

husband of her sister. On that day, she had been to the forest for

bringing the fire-wood with one Saraswati and the Victim and they all

returned home by 12.00 noon. Thereafter, in between 1.00 p.m. to

1.30 p.m. she again went out with Saraswati and Shanti to bring the

fire-wood and at that time, she kept the Victim in the house of the 9 cr.appeal.327.23-J.odt

Appellant. She returned home at 4.00 p.m. and went to the house of

the Appellant to take the Victim. When she saw the Victim, she was

found to be pale. This part of her testimony that, the Victim was

found pale, was the omission. When she asked the Victim, whether

she slept, she did not speak anything and they both came home. The

Victim told her that, there was pain in her private part and she was

weeping till midnight, thereafter, the Victim went to sleep. Her

evidence further shows that, she ignored the pain and on the next day

went to forest. On 19.10.2018, while she was cooking, the Victim

again complained of the pain in her private part. She examined the

private part of the Victim and found swelling and on asking the

Victim about the same, the Victim told her that, the Appellant

inserted his private part in her private part. In her evidence she

further deposed that, she had gone to the house of the Appellant to

question him, however, the Appellant did not speak anything. She

informed the incident to other villagers. On the next date, she lodged

the report against the Appellant with the concerned Police Station

and the crime came to be registered against the Appellant.

13. The cross-examination of the P.W.-1 shows that, the

Appellant was the resident of Murangal, which was different village.

However, admission is brought in the cross-examination of this

witness that, the Appellant was residing at Laheri i.e. the village of 10 cr.appeal.327.23-J.odt

the Victim, with his maternal uncle. The Appellant was residing there

with his family members jointly. His maternal uncle and aunt were

alive and they are residing in the same house. It has further come in

her evidence that, the maternal uncle and aunt of the Appellant were

old aged person and they used to reside at home. Further, it is come

in her cross-examination that, the Appellant was cultivating the

agricultural land.

14. The evidence of P.W.-1 do not show that, the Victim was

given in the custody of the Appellant. Her evidence shows that, she

kept the Victim in the house of the Appellant. As seen above, it is

clear that, the Appellant was not residing alone in the house and he

was residing with his family and maternal uncle and aunt. It is also

not the case of this P.W.-1 that, when she dropped the Victim at the

house where the Appellant was residing, the Appellant was present.

From the evidence of P.W.-1, it is not established that, the Victim was

in the custody of the Appellant on the day of incident or at

any time.

15. Further, the evidence of P.W.-3 - Ankesh K. Atlami, who

was the residents of the same village shows that, his evidence was

hearsay in nature in respect of the incident. In his cross-examination,

it has come that, the Accused/Appellant was having two sons, wife

and they are residing together. This again substantially proves that, 11 cr.appeal.327.23-J.odt

the house where the Victim was dropped, was occupied by other

persons i.e. the family members and the maternal uncle and aunt of

the Appellant.

16. The evidence of P.W.-1 shows that, the Victim was referred

for medical examination. The prosecution examined the Medical

Officer Minakshi T. Jambhulkar as P.W.-5, who examined the Victim

on 21.10.2018. Her evidence shows that, at the relevant time she

was the Medical Officer at Gadchiroli. She examined the Victim and

found no external injury on the person of the Victim. On internal

examination, she found her hymen was ruptured and mucosal tags

observed all around. She found pinkish hue at inner aspect of labia

majora region. She found that, uterus was developing in size and

anteverted, fornice free, no adnexal marks were found. It was the

finding of per receptal. Her evidence further shows that, the Victim

and her mother narrated history that, the Appellant " tried" to insert

his private part into her private part. She opined that, sexual assault

on the Victim was committed. The medical examination papers of the

Victim are brought on record in the evidence of this witness below

Exhibit-31, which also corroborate her testimony that, the history was

of attempt. This evidence shows that, the testimony of the P.W.-1 in

respect of the insertion of private part by the Appellant in the private

part of the Victim does not find support or corroboration by the 12 cr.appeal.327.23-J.odt

history given to the Medical Officer at the time of medical

examination of the Victim. This is the vital inconsistency in the

prosecution case. The evidence of the Medical Officer do not show as

to what was the age of hymenal rupture and that of pinkish hue.

That would have been material and relevant. From this medical

evidence on record, it is clear that, it does not corroborate or support

the case of the prosecution.

17. The other evidence is in the nature of seizure of clothes

and blanket at the instance of the Appellant during the course of the

investigation after his arrest. For this, the prosecution examined

P.W.-2 - Watsala Antuji Tambde. Her evidence shows that, she was a

teacher in Zilla Parishad School and on 21.10.2018, acted as the

Panch for the Spot Panchanama below Exhibit-21. The spot was

shown by the Victim's mother P.W.-1. She deposed that, the clothes of

the Victim were seized below Panchanama at Exhibit-22. There is

evidence of P.W.-4 - Vaishali P. Konmuttiwar, who acted as the Panch

for discovery and seizure of the blanket and the clothes of the

Appellant under Section 27 of the Evidence Act, 1872 on 21.10.2018.

According to her, said articles were seized from the house at the

instance of the Appellant. Said seizure of the clothes of the Appellant

and the blanket will not be relevant as the report of Chemical Analysis

is not incriminating in nature. Further, the seizure of the Victim's 13 cr.appeal.327.23-J.odt

clothes are also not incriminating in nature. The relevant C.A. Report

in that respect is below Exhibit-53. The relevant portion from the said

C.A. Report is reproduced below :

"Description of articles contained in Parcel/s.

1. Frock wrapped in paper labelled - Ex. C.

2. Salwar (leggings) wrapped in paper labelled - Ex. Cl.

3. Blanket wrapped in paper labelled- Ex. D.

4. Half T-shirt wrapped in paper labelled - Ex. D1.

5. Bermuda wrapped in paper labelled- Ex. D2.

6. Hair in a polythene put in a packet labelled - Ex. E.

Results of Analysis

- Exhibit (3) has one blood stain of about 1 cm in diameter in the middle portion.

- No blood is detected on exhibits (1), (2), (4), (5) and (6).

- No semen is detected on exhibits (1), (2), (3), (4), (5) and (6).

-     Blood detected on exhibit (3) is human.
-     Blood group of blood detected on exhibit (3) can not be
      determined as the results are inconclusive."

18. In view of the above evidence on record, the seizure of the

clothes of the Victim and that of the Appellant takes the case of the

prosecution nowhere as nothing incriminating was found on that.

19. Other evidence is that of the policeman, who deposed of

the recording of the First Information Report and carrying out the

investigation. The above discussed evidence on record do not prove

the charge against the Appellant. At the cost of repetition, the

prosecution evidence nowhere shows that, the Victim was given in the

custody of the Appellant, the history to the Medical Officer was that

of attempt to rape and thus inconsistent, no injuries were found on

14 cr.appeal.327.23-J.odt

the person of the Victim, no age of hymenal rupture and pinkish hue

was given by the Medical Officer and no semen were found on the

clothes and the C.A. Report in respect of the clothes are not

incriminating in nature. Under such circumstances, the presumption

under Section 29 of the POCSO Act will not come into play or no

presumption can be raised. There can be no dispute on the ratio of

the decision in State of M.P. Vs. Dayal Sahu [(2005) 8 SCC 122],

wherein it is observed that, the doubt should be of a reasonable

nature and the findings of the guilt should not be reversed on the

basis of irrelevant circumstances or mere technicalities. In view of

above discussed evidence on record, this Judgment will not be of

assistance to the prosecution. In the case at hand, the prosecution

failed to prove their case, so as to give rise to the presumption under

the POCSO Act. Considering the evidence available on record, the

conviction recorded by the learned Trial Court is unsustainable.

Hence, the following order :

ORDER

i] The Appeal is allowed.

ii] The conviction and sentence recorded by the learned

Trial Court against the Appellant in the impugned

Judgment and Order is hereby quashed and set aside.

15 cr.appeal.327.23-J.odt

iii] The Appellant is acquitted for the offences punishable

under Sections 376(2)(f), 376(2)(i) of the Indian

Penal Code, 1860 and for the offences punishable

under Sections 4, 8 and 10 of the POCSO Act.

iv] The Appellant is behind bars. He be set at liberty

forthwith, if not required in any other offence.

v] Fine amount, if any, paid by the Appellant be refunded

to him.

vi] Muddemal articles be dealt with as per the Operative

Order of the impugned Judgment.

vii] Record and proceedings be sent back to the learned