[Cites 19, Cited by 0]
Bombay High Court
Ramesh S/O. Raghunath Yetare (C-10970) vs The State Of Mah. Thr. Pso, Ps Lakhandur, ... on 23 January, 2026
2026:BHC-NAG:1121
1 apeal587.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.587/2023
Ramesh S/o Raghunath Yetare,
Convicted Offender (C-10970),
age 30 Yrs., Occu. Labour,
R/o Virli (Bz.), Tahsil Lakhandur,
District Bhandara. ... Appellant
- Versus -
1. The State of Maharashtra,
through Police Station Officer,
Police Station, Lakhandur,
Tahsil Lakhandur, District Bhandara.
2. XYZ (in FIR/Crime No.192/2017)
(VICTIM)
through Complainant
Through Police Station Officer,
Police Station Lakhandur,
Tahsil Lakhandur, District Bhandara. ... Respondents
-----------------
Mr. R.D. Hajare, Advocate for the Appellant.
Ms. Sneha Dhote, A.P.P. for Respondent No.1/State.
Mr. Sandeep Marathe, Advocate (appointed) for Respondent No.2.
----------------
CORAM: NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT: 16.01.2026.
DATE OF PRONOUNCING THE JUDGMENT: 23.01.2026.
JUDGMENT
This is Appeal under Section 374(2) of the Code of Criminal
Procedure (for short "Cr.P.C.") whereby the Appellant has challenged
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his conviction and sentence recorded by the learned Special Judge
(POCSO), Bhandara in Special Criminal Case No.41/2017. The
relevant part of the operative order of said judgment reads as
under:-
"1) Accused Ramesh S/o Raghunath Yetare is hereby
convicted under Section 235(2) of the Code of Criminal
Procedure, 1973 of the offence punishable under Section
376AB read with Section 511 of the Indian Penal Code,
1860 and sentenced to suffer Rigorous Imprisonment for
ten years with fine of Rs.5,000/- (Rs. Five Thousand), in
default of payment of fine, he shall undergo rigorous
imprisonment for two months.
2) Accused Ramesh S/o Raghunath Yetare is hereby
convicted under Section 235(2) of the Code of Criminal
Procedure, 1973 of the offence punishable under Section
452 of the Indian Penal Code, 1860 and sentenced to
suffer Rigorous Imprisonment for five years with fine of
Rs.1,000/- (Rs. One Thousand), in default of payment of
fine, he shall undergo rigorous imprisonment for one
month.
3) Both the sentences shall run concurrently.
4) The fine amount, if deposited by the accused shall
be paid to the prosecutrix towards compensation after one
year of this order or as per the order in appeal, if any,
preferred by any of the parties.
5) Accused Ramesh S/o Raghunath Yetare is
acquitted under Section 235(1) of the Code of Criminal
Procedure, 1973 of the offence punishable under Section 8
of the Protection of Children from Sexual Offences Act,
2012 and under Section 3(2)(v) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
6) Set off be given to the accused for the period of
detention undergone by him under Section 428 of the
Code of Criminal Procedure, 1973."
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2. The prosecution's case, as revealed from the police report, is as
under:-
a) The Informant was residing with her daughters. The Victim is
her daughter. The Victim was 11 years old at the time of the incident
dated 03.09.2017. On that day, the Informant went to the
agricultural field for work. The Victim was alone in her house. At
about 1.30 p.m. the Informant received the call from the neighbour
Dilip Shingade that the Appellant outraged the modesty of the
Victim. The Informant came to home and enquired with the Victim.
The Victim narrated that, the Appellant entered their house and
when she came in the front room, the Appellant lifted her, took her
in the inside room and made her to lie on the cot and he sat on her
person and by one hand gagged her mouth and by the other hand
pressed her chest. The Victim resisted and scratched the Appellant's
neck and face and caught his hair and pushed him by leg. The
Appellant fled away. The Informant and the Victim went to the
Lakhandur Police Station and lodged the report. Crime bearing
No.192/2017 came to be registered against the Appellant for the
offence punishable under Sections 376, 511, 354-A and 451 of the
Indian Penal Code (for short "I.P.C.), for the offence punishable
under Sections 8 and 10 of the Protection of Children from Sexual
Offences Act (for short "POCSO Act") and for the offence punishable
under Sections 3(1)(w)(i), 3(2)(v-a) and 3(2)(5) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short
"SCST Act").
b) The Victim was referred for medical examination. The
statement of the Victim was recorded. The spot-panchanama was
drawn. The Appellant was arrested. The Appellant was referred for
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medical examination. The samples of the Victim and that of the
Appellant were collected. The statement of the witnesses were
recorded. The relevant Articles came to be seized. The samples were
referred to the Chemical Analyst. On completion of the investigation,
the Appellant came to be chargesheeted for the above referred
offences.
c) On committal, the learned trial Court framed the Charge
against the Appellant for the offences punishable under Sections
452, 376 read with 511 of the I.P.C., for the offence punishable
under Section 8 of the POCSO Act and for the offence punishable
under Sections 3(1)(w)(i) of the SCST Act below Exh.21. The
Appellant pleaded not guilty and claimed to be tried. To prove the
Charge, the prosecution examined in all 8 witnesses.
d) The mother of the Victim, who lodged the report, is examined
as P.W.1, the Victim is examined as P.W.2, the witness Dilip K.
Shingade is examined as P.W.3, the Panch Gajanan S. Sakharkar for
the spot-panchanama, samples of the Appellant and seizure of the
electric bills and tax receipts of the house of the Victim, is examined
as P.W.4, Dr. Kamlesh S. Pillewan, who examined the Appellant, is
examined as P.W.5, Dr. Sunil K. Rangari, who examined the Victim, is
examined as P.W.6, Prabhakar G. Tikkas, the Investigating Officer, is
examined as P.W.7 and Tirthadas G. Nimbekar, the Policeman who
registered the crime is examined as P.W.8.
e) All the relevant documents including F.I.R., panchanamas,
medical certificates, C.A. Reports etc. are brought on record through
the evidence of the above referred witnesses. After the prosecution
closed its evidence, the statement of the Appellant came to be
recorded under Section 313(1)(b) of the Cr.P.C. The Appellant stated
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that he was falsely implicated. On appreciating the evidence on
record, the learned trial Court convicted and sentenced the
Appellant as above.
3. 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 available on record.
a) It is submitted by the learned Advocate for the Appellant that,
the Informant is not an eye witness and there are material omissions
in her testimony. The age of the victim was not disputed. The
testimony of the Victim shows material omissions. The prosecution
could not prove that the injury or scratch on the person of the
Appellant was by nail. The C.A. Reports are not incriminating in
nature. The prosecution's case was doubtful. The learned trial
Court erred in convicting and sentencing the Appellant and the
Appeal be dismissed.
b) It is submitted by the learned A.P.P. that, the testimony of the
Victim has proved the Charge. The defence of false implication due
to dispute with the family of the Appellant was not probable. The
spot of the incident and the seizure is proved. The injuries on the
person of the Victim and on the person of the Appellant are proved
which corroborates the prosecution's case. The witnesses remained
stick up. The Charge was proved and the Appeal be dismissed.
c) It is submitted by the learned Advocate for the Respondent
No.2/Victim that there is no reason to discard the testimony of the
Victim. The Victim's testimony was consistent. The learned trial
Court has rightly appreciated the evidence on record and the Appeal
be dismissed.
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4. As seen above from the operative order, the Appellant has
been acquitted of the Charge punishable under the provisions of the
POCSO Act and SCST Act. Admittedly, the Victim's mother is not an
eye witness to the incident. She set the criminal law in motion. The
prosecution's case largely rests on the testimony of the Victim who is
examined as P.W.2. Her testimony shows that, on 03.09.2017 when
she was present in her house and her mother had gone to work in
the field at 9 a.m. She was having meals at 1 p.m. The Appellant
entered her house. The Appellant asked her as to what vegetable was
cooked. She saw that, the Appellant was lying on the cot in the front
room. After finishing the meal, she came out and was taking out
money from her compass. The Appellant came near her, lifted her
and took her inside the room. She tried to shout, however, he gagged
her mouth by his hand. The Appellant took her on the bed in the
inside room and made her to lie. The appellant sat on her person.
By one hand he tried to close her mouth and by other hand he
pressed her breast and moved his hand on her body. Even though
she resisted, the Appellant moved his hand on her breast. She pulled
his hair and scratched his face and neck and kicked him and
shouted. The Appellant got up and left the Victim's house.
5. The Victim deposed further that, she came out of the house
weeping. She was about to go to the house of Dilip Shingade who
was the relative. Said Dilip met her on the way. She narrated the
incident to him. He took her to his home and provided water. Said
Dilip informed the Victim's mother on the phone. The Victim's
mother came home and learnt about the incident from the Victim.
The report was lodged with the Police Station and the crime came to
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be registered against the Appellant. Her statement was recorded by
the Police.
6. The Victim was subjected to cross-examination. Certain
omissions are brought on record in her cross-examination. Close
scrutiny of her testimony shows that, some of the aspects that, the
accused was pressing her breast, she shouted, she met Dilip
Shingade on the way, she narrated the incident to him, were the
omissions, however, her testimony as regards entering of the
Appellant in her house in the afternoon, lifting her and making her
to lie on bed and sitting on her person was consistent with her
previous statement. Therefore, said omissions do not create any dent
in the testimony of the Victim. She denied the suggestion of false
report. There is no dispute in respect of the identity of the Appellant.
Victim's testimony shows that, the Appellant was the resident of the
same village and his house was behind her house. She denied the
suggestion that, the report was lodged at the instance of her mother.
Nothing has come in the cross-examination so as to discard the
testimony of the Victim.
7. There is evidence of the Victim's mother who lodged the
report. Her testimony is consistent with the report. Though certain
omissions are brought on record in her testimony, they do not create
any dent in the case of the prosecution. Her testimony shows that,
the report was immediately lodged on the day of incident. Nothing
has come in the cross-examination so as to discard her testimony.
Her testimony corroborates the testimony of the Victim.
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8. There is medical evidence on record to show that, the Victim
and the Appellant were medically examined. The evidence of P.W.6
Dr. Sunil K. Rangari shows that, on examination of the Victim on
03.09.2017 i.e. the day of incident, he found one abrasion on the left
side of her chest which was like nail scratch and the age of injury
was within 24 hours. He opined that, the nail marks would have
been caused during the struggle. His cross-examination shows that,
there were two to three linear abrasions at particular distance and,
therefore, he opined them as nail abrasions. His testimony is
corroborated by the medical certificate. His further evidence shows
that, on the same day i.e. on 03.09.2017 the Appellant was brought
by the Police for medical examination. He noticed abrasion on right
side of the Appellant's neck and he opined that, said abrasion may be
due to nail within 24 hours. The medical certificate for the same is
brought on record in his evidence. In cross-examination nothing has
come on record so as to create any dent in his testimony. The
evidence of this witness, Medical Officer, who was posted at
Lakhandur at the relevant time shows that, he examined the Victim
and the Appellant on the day of incident and noticed the injuries on
their person which were possible by nails.
9. The evidence of P.W.5, Dr. Kamlesh S. Pillewan, shows that, on
04.09.20217 when he was the Medical Officer at Lakhandur at Rural
Hospital, the Police brought the Appellant for medical examination.
On medical examination of the Appellant he noticed " crescentric
abrasion over right upper side of neck, size 8 X 0.5 cm, age 24 to 36
Hrs. old." He deposed that, such abrasions are caused specifically
by nails. He deposed that, he wrongly mentioned that, the injury
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was possible by hard and blunt object. In the cross-examination it is
further made cleat that, due to his perception that, the nail was the
hard and blunt object, it came to be written in the injury certificate
of the Appellant that, the injury was caused by hard and blunt
object. The evidence of this Medical Officer is corroborated by the
medical certificate. Nothing has come on record so as to discard his
testimony. Through the above evidence, the prosecution
conclusively proved the injuries on the person of the Appellant.
10. The above discussed evidence on record gives the required
assurance that, on the day of incident the Appellant entered the
house of the Victim and did the acts which she deposed in her
testimony. The evidence of the Victim nowhere shows that, the
Appellant removed his or her clothes or even tried to do so. It is
not the evidence of the Victim that, the Appellant closed the door,
undressed himself and did such act which would show his intention
to rape her. The Victim's evidence do not show that, the Appellant
did such act so as to conclusively establish that, he attempted to
commit rape. Accepting the Victim's testimony as it is, the act done
by the Appellant with her would fall short of attempt to commit
rape. To attract the offence of attempt to commit rape, certain more
acts on the part of the Appellant would be required. The proved act,
as deposed by the Victim, would attract the offence of outraging her
modesty punishable under Section 354 of the I.P.C.
11. Further evidence on record is that of the Witness No.3 Dilip K.
Shingade, who saw the Victim after the incident, the evidence of the
panch witness and that of the Police Officers. The same needs no
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consideration as the prosecution case entirely rests on the above
discussed evidence of the Victim, the Informant and the medical
evidence. In the light of the above discussion, the conviction for the
offence punishable under Section 376AB read with Section 511 of
the I.P.C. is modified to Section 354 of the I.P.C. The conviction for
the offence punishable under Section 452 of the I.P.C. is maintained.
Hence the following order:-
ORDER
i) The Appeal is partly allowed.
ii) The conviction for the offence punishable under Section
376AB read with Section 511 of the I.P.C. is modified to the offence
punishable under Section 354 of the I.P.C. and the Appellant is
sentenced to suffer rigorous imprisonment for 5 years with fine of
Rs.5,000/-, in default to pay fine, to undergo rigorous imprisonment
for 2 months.
iii) The conviction and the sentence for the offence punishable
under Section 452 of the I.P.C. is maintained.
iv) The other operative order of the impugned judgment shall
remain intact.
v) The fees of the learned Advocate appointed for Respondent
No.2 is quantified at Rs.10,000/-. Same be paid accordingly by the
High Court Legal Services Authority.
(NEERAJ P. DHOTE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 23/01/2026 13:40:32
