[Cites 15, Cited by 0]
Bombay High Court
Ganesh Sanjay Kampalikar vs The State Of Maharashtra And Anr. on 23 January, 2026
2026:BHC-AS:3607 35-CRI.APPEAL-1201-22.DOC
Shivgan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1201 OF 2022
Ganesh Sanjay Kampalikar
Age 22 years Occ: Education
R/at- Behind Natraj Colony,
Goa Galli, Daund, Tal: Daund, District-Pune
(Presently detained at Yerwada Central Prison) ...Appellant
Versus
1. The State of Maharashtra
(At the instance of Daund Police Station in
connection of C.R.No.182 of 2021)
2. XYZ
Age: 40 years, Occupation-Labor ...Respondents
Ms. Anjali Patil, with Tohid Shaikh and Onkar Gurav, for the
Appellant.
Mr. A.S.Gawai, APP for the Respondent-State.
Mr. Ratnesh Dubey (Appointed), for the Respondent No.2.
CORAM: R. M. JOSHI, J.
RESERVED ON: 19th JANUARY, 2026.
PRONOUNCED ON: 23rd JANUARY, 2026.
JUDGMENT :
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1. The Appellant-Convict takes exception to the Judgment
and Order dated 17th November 2022 passed in Special Case
No.88 of 2021 whereby the Appellant came to be convicted
for the offences punishable under Section 6, Section 9 read
with Section 10 and Section 11 read with Section 12 of the
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Protection of Children From Sexual Offences Act, 2012
('POCSO Act').
2. The First Informant is the father of the Victim, minor
girl. As per the report lodged by him on 6th April 2021 with
the Daund Police Station, Pune Rural at about 1.00 p.m. when
he came home, he found the daughter (Victim) trembling and
crying. On query, she told to the Informant that the Appellant
caught hold of her neck near Tamarind tree and threatened
her. She further claims that the Appellant removed her clothes
and his own clothes too and inserted his private part into her
mouth. One old lady came there and asked Appellant as to
what he is doing, thereon Appellant ran away. On the same
day, Victim identified Appellant, who was standing in front of
his house, to be the perpetrator of the Crime. On the basis of
said Report, crime came to be registered vide FIR No. 0182 of
2021 with Daund Police Station.
3. During the investigation, statement of Victim was
recorded under Sections 161 as well as 164 of the Code of
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Criminal Procedure, 1973 ('Cr.P.C.'). Victim was sent for
medical examination. Medical papers were included in the
record of investigation. Statements of witnesses were
recorded. On conclusion of investigation, charge-sheet came
be filed against the Appellant before the Competent Court.
4. Trial Court framed charge against the Appellant vide
Ex.17. Appellant denied the charge and sought trial.
Prosecution examined following 7 witnesses:
Witness Name of Witness Relevancy Exh.
No. Nos.
the Spot
Panchanama
age of the Victim
P.W.5 Dr. Rupali Rajesh Pakhare Medical Officer 47
P.W.7 Sunil Shamrao Londhe Investigating 61
Officer
5. Prosecution also led documentary evidence such as
Documents Exh.
Nos.
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Statement U/s. 164 of the Cr.P.C. of informant 30
before Ld. JMFC, Daund.
Statement U/s. 164 of the Cr.P.C. of Victim before 32
Ld. JMFC, Daund.
Letter to record statement of Victim and 67/68
Informant
6. The incriminating circumstances were put to the
Appellant under Section 313 of the Cr.P.C. Trial Court found
the evidence led by the Prosecution to be sufficient to prove
guilt of the Appellant and hence, recorded the Judgment of
conviction.
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7. Learned counsel for the Appellant submits that the
prosecution ought to have proved the guilt of the Appellant
beyond reasonable doubt. At the outset, it is her contention
that the Prosecution has failed to prove that the Victim is a
child under the POCSO Act and hence, the prosecution
against the Appellant for the offences therein, is not tenable.
It is her submission that the evidence of witnesses of the
prosecution is not reliable for the reason that there are
material inconsistencies in the evidence of the Victim as well
as the Informant. According to her, in the statement made
before the Magistrate under Section 164 of the Cr.P.C., the
Victim as well as the Informant gave altogether different
version about the occurrence of the incident. She further
argued that the evidence of the Victim does not get support
from independent witness so also medical evidence. Thus, it is
submitted that no conviction can be maintained on the basis
of unreliable and doubtful evidence led by the prosecution.
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8. Learned APP and learned counsel for the Respondent
No.2 supported the impugned Judgment and Order of
conviction. It is their submission that the prosecution has
proved the age of the Victim on the basis of oral as well as
documentary evidence on the record. In this regard, reference
is made to the testimony of the Informant (P.W.1), Victim
(P.W.2) and Sandip Maruti Mande (P.W.4) It is their
contention that the defense has not challenged the said
evidence and therefore, it is rightly held by the Trial Court
that the Victim is minor. It is their further submission that the
testimony of the Victim with regard to the history given to the
Medical Officer gets support from evidence of Dr. Pakhare
(P.W.5). It is further argued that considering the age of the
Victim, there are bound to occur certain inconsistencies in her
version and all inconsistencies do not become ground for
discarding her evidence.
9. In case of sexual assault on a woman, if the quality of
evidence of the Victim is of sterling in nature and is free from
doubt, the same can become sole basis for conviction of the
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Appellant without seeking further corroboration. The Hon'ble
Supreme Court in the case of Nirmal Prem Kumar and anr.
Versus State represent by Inspector of Police , Criminal Appeal
No.1098 of 2024, has observed in paragraphs 11 to 15 as
under:-
"11. Law is well settled that generally speaking, oral
testimony may be classified into three categories,
viz.: (i) wholly reliable; (ii) wholly unreliable; (iii)
neither wholly reliable nor wholly unreliable. The
first two category of cases may not pose serious
difficulty for the Court in arriving at its
conclusion(s). However, in the third category of
cases, the Court has to be circumspect and look for
corroboration of any material particulars by reliable
testimony, direct or circumstantial, as a requirement
of the rule of prudence.
12. In Ganesan v. State4, this Court held that the sole
testimony of the victim, if found reliable and
trustworthy, requires no corroboration and may be
sufficient to invite conviction of the accused.
13. This Court was tasked to adjudicate a matter
involving gang rape allegations under section 376(2)
(g), I.P.C in Rai Sandeep v. State (NCT of Delhi) 5.
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The Court found totally conflicting versions of the
prosecutrix, from what was stated in the complaint
and what was deposed before Court, resulting in
material inconsistencies. Reversing the conviction
and holding that the prosecutrix cannot beheld to be
a 'sterling witness', the Court opined as under:
"22. In our considered opinion, the 'sterling witness'
should be of a very high quality and calibre whose
version should, therefore, be unassailable. The court
considering the version of such witness should be in a
position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant
would be the consistency of the statement right from
the starting point till the end, namely, at the time
when the witness makes the initial statement and
ultimately before the court. It should be natural and
consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the
version of such a witness. The witness should be in a
position to withstand the cross-examination of any
length and howsoever strenuous it may be and under
no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as
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well as the sequence of it. Such a version should have
co-relation with each and every one of other
supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the
scientific evidence and the expert opinion. The said
version should consistently match with the version of
every other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should not be any
missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him. Only
if the version of such a witness qualifies the above test
as well as all other such similar tests to be applied, can
it be held that such a witness can be called as a
'sterling witness' whose version can be accepted by the
court without any corroboration and based on which
the guilty can be punished. To be more precise, the
version of the said witness on the core spectrum of the
crime should remain intact while all other attendant
materials, namely, oral, documentary and material
objects should match the said version in material
particulars in order to enable the court trying the
offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of
the charge alleged."
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14. In Krishan Kumar Malik v. State of Haryana, this Court
laid down that although the victim's solitary evidence in
matters related to sexual offences is generally deemed
sufficient to hold an accused guilty, the conviction cannot
be sustained if the prosecutrix's testimony is found
unreliable and insufficient due to identified flaws and
lacunae. It was held thus:
"31. No doubt, it is true that to hold an accused guilty
for commission of an offence of rape, the solitary
evidence of the prosecutrix is sufficient provided the
same inspires confidence and appears to be absolutely
trustworthy, unblemished and should be of sterling
quality. But, in the case in hand, the evidence of the
prosecutrix, showing several lacunae, which have
already been projected hereinabove, would go to show
that her evidence does not fall in that category and
cannot be relied upon to hold the appellant guilty of
the said offences.
32. Indeed there are several significant variations in
material facts in her Section 164 statement, Section
161 statement (CrPC), FIR and deposition in court.
Thus, it was necessary to get her evidence
corroborated independently, which they could have
done either by examination of Ritu, her sister or Bimla
Devi, who were present in the house at the time of her
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alleged abduction. The record shows that Bimla Devi
though cited as a witness was not examined and later
given up by the public prosecutor on the ground that
she has been won over by the appellant."
15. What flows from the aforesaid decisions is that in cases
where witnesses are neither wholly reliable nor wholly
unreliable, the Court should strive to find out the true
genesis of the incident. The Court can rely on the victim as
a "sterling witness" without further corroboration, but the
quality and credibility must be exceptionally high. The
statement of the prosecutrix ought to be consistent from
the beginning to the end (minor inconsistencies excepted),
from the initial statement to the oral testimony, without
creating any doubt qua the prosecution's case. While a
victim's testimony is usually enough for sexual offence
cases, an unreliable or insufficient account from the
prosecutrix, marked by identified flaws and gaps, could
make it difficult for a conviction to be recorded."
Keeping in mind, the afore-stated observation, the
evidence led in the present case needs to be assessed.
10. In a trial for the offences under the POCSO Act, at the
first instance, the prosecution is required to prove that the
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Victim is the child under Section 2(d) of the POCSO Act, i.e.,
below age of 18 years. The First Informant as well as the
Victim specifically stated about the date of birth of the Victim
28th July 2012. This evidence gets further support from the
testimony of Sandip Mande (P.W.4), who is the head master in
the school in which the Victim is studying. He placed on
record general register of the school indicating date of birth of
the Victim to be 28th July 2012. In the cross-examination of
the Informant as well as the Victim, no specific challenge is
made to the correctness of her date of birth. Thus, the
prosecution has succeeded in proving the Victim to be child
for application of provisions of POCSO Act to the present case.
11. Prosecution examined P.W.1, i.e., the father of the
Victim. According to him, on 6th April 2021 when he came
back home in the noon, he found his daughter crying and
trembling. She told him about the incident by saying that the
Appellant caught hold of her hands near Tamarind tree and
throttled her and thereafter, removed her clothes and his own
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35-CRI.APPEAL-1201-22.DOC
clothes and inserted his private part into her mouth. She
further told him that one old lady came to the spot and
therefore, Appellant ran away. He also states about the Victim
identifying the Appellant on the same day. He confirmed
lodging of the report to the Police, FIR (Exh. 28). Similar is
the evidence of the Victim, who states before the Trial Court
that while she was plucking tamarinds from the tree, the
Appellant came to the spot and asked for tamarind. He
thereafter pulled her in the room and pressed her face so also
caught hold of her neck. She was threatened not to raise
shouts or else, she would be killed. It is thereafter, Appellant
disrobed her and laid on her person and put his private part in
to her mouth. She also states about a old lady coming to the
spot.
12. During the cross-examination of the Victim as well as
her father, their attention came to be drawn to the statement
recorded under Section 164 of the Cr.P.C. In the said
statement, both of them have stated about Appellant putting
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35-CRI.APPEAL-1201-22.DOC
his mouth into her mouth. Both these witnesses have denied
of making such statement before the Magistrate. This
statement is not recorded by Police, who might have interest
in the success of case but Judicial Magistrate First Class would
have no such interest. There is no reason to believe that
Magistrate recorded statement incorrectly. Unless, the
Prosecution proved incorrectness of such statement, it cannot
be so held. The Defense therefore, was able to bring material
inconsistency in the evidence of the Victim as well as the
Informant about the actual occurrence of the incident.
13. Apart from this, when the Victim claims that her face
was pressed so also, the Appellant caught hold of her neck,
which her father states about she being throttled, there is
absolutely no medical evidence to support occurrence of any
such evidence. It is pertinent to note that the Victim girl was
examined by the Medical Officer on the same day of the
occurrence of the incident.
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14. It would be relevant to take note of evidence of Dr.
Pakhare (P.W.5). She claims that oral swab of the Victim was
taken on the day of her medical examination. She also admits
that in case of oral penetration, DNA of the Assailant could be
found in the examination of oral swab. She accepts in the
cross-examination that her opinion with regard to unnatural
sexual offence cannot be proved without laboratory report
and that she cannot opine about the same in its absence. C.A.
Report (Exh.56) placed on record indicates that there was no
male DNA detected on oral swab of the Victim.
15. Not only that there are inconsistencies in the statements
of the Victim and the Informant with regard to actual
occurrence of the incident and that the medical evidence does
not support the version of the Victim. The only eye witness
present at the spot, has not supported the case of the
prosecution. P.W.6 turned hostile. Though it is sought to be
argued on behalf of the learned APP that she was threatened,
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even if it is so, as a matter of fact, she does not lend support
to the case of the prosecution.
16. Having regard to the nature and quality of evidence led
by the prosecution and considering the material
inconsistencies in the testimony of the Victim and the
Informant, it would be unsafe to confirm the order of
conviction of the Appellant solely on basis of testimony of
Victim and also in view of the fact that their statements during
investigation and before the Trial Court, give different version
of happening of alleged incident. This Court therefore, would
be required to look for corroborative evidence, which is absent
in this case. Thus, it cannot be said that the prosecution has
succeeded to prove the guilt of the Appellant beyond
reasonable doubt. As a result of above discussion, conviction
recorded against the Appellant cannot be sustained. Hence,
the following order:-
ORDER
(i) Appeal stands allowed.
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(ii) The Appellant stands acquitted in connection with
Crime No. 0182 of 2021 dated 6th April 2021 registered
with Daund Police Station, Pune Rural for the offences
punishable under Section 376 (2)(i) of the Indian Penal
Code, 1860 and under Sections 4, 6, 8, 10 read with
Section 12 of the Protection of Children From Sexual
Offences Act, 2012.
(iii) Fine amount, if paid, be refunded to the Appellant.
(iv) The Appellant be set at liberty forthwith, if not required
in any other case.
(v) The bail bonds of the Appellant stands cancelled.
(vi) Record and proceedings be returned to the learned Trial
Court.
17. The Appeal stands disposed of accordingly.
(R. M. JOSHI, J.)
{
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH SHIVGAN
SHIVGAN Date:
2026.01.23
18:48:29
+0530
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23 January, 2026.
