Vishal Ashokrao Balbel vs State Of Mah. Thr. Pso Ps Badnera Tq. And ...
2026 Latest Caselaw 2258 Bom

Bombay High Court

Vishal Ashokrao Balbel vs State Of Mah. Thr. Pso Ps Badnera Tq. And ... on 6 March, 2026

2026:BHC-NAG:3727


                                               1                           crappeal 117.2023.odt

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

                                     CRIMINAL APPEAL NO. 117/2023

                    Vishal Ashokrao Balbel
                    Age about 29 years, Occ. Labour,
                    R/o Pardeshpura, Badneara, Amravati,
                    Tq. Dist.Amravati.                       ..     Appellant

                          Versus

                    1.    The State of Maharashtra,
                          Through Police Station Officer,
                          PS. Badnera,
                          Tq.Dist.Amravati.

                    2.    XYZ
                          Crime No.: 561/2020
                          Through Police Station Officer,
                          PS. Badnera,
                          Tq.Dist.Amravati.                  ..     Respondents
                                                       ...

                            Mr. M.N. Ali, Shahrukh Ahemad and P.L.Dhavsel, Advocates for
                            Appellant.
                            Mr. U.R.Phasate, A.P.P. for Respondent/State.
                            Ms. A.S.Mishrikotkar, Advocate (appointed) for Victim.
                                                           ...

                            CORAM :       NEERAJ P. DHOTE, J.
                            Date of reserving judgment : 03.02.2026.
                            Date of pronouncing judgment :06.03.2026.

                    JUDGMENT:

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

Criminal Procedure, 1973 (for short "Cr.P.C."), against the Judgment

and Order dated 29.08.2022 passed by the learned Additional

Sessions Judge, Amravati in Special Case No.248/2020 convicting

and sentencing the Appellant as follows:-

2 crappeal 117.2023.odt

(1) The accused Vishal Ashokrao Balbel is hereby convicted

under section 235(2) of the Code of Criminal Procedure for an

offence punishable under section 376 AB of the Indian Penal Code.

(2) The accused Vishal Ashokrao Balbel is hereby convicted under

section 235(2) of the Code of Criminal Procedure for an offence

punishable under section 363 of the IPC and he is sentenced to

suffer rigorous imprisonment for three years and to pay fine of

Rs.1000/- (Rs. One thousand only), in default of payment of fine,

accused shall suffer rigorous imprisonment for two months.

(3) The accused Vishal Ashokrao Balbel is hereby convicted under

section 235(2) of the Code of Criminal Procedure for an offence

punishable under section 4 the Protection of Children from Sexual

Offences Act, 2012 and he is sentenced to suffer rigorous

imprisonment for Ten years and to pay fine of Rs.5,000/- (Rs. Five

thousand only), in default of payment of fine, accused shall suffer

rigorous imprisonment for three months.

(4) The accused Vishal Ashokrao Balbel is hereby convicted under

section 235 (2) of the Code of Criminal Procedure for an offence

punishable under section 6 the Protection of Children from Sexual

Offences Act, 2012 and he is sentenced to suffer rigorous

imprisonment for Twenty years and to pay fine of Rs.10,000/-

3 crappeal 117.2023.odt

(Rs. Ten thousand only), in default of payment of fine, accused shall

suffer rigorous imprisonment for six months.

(5) In view of Section 42 of the POCSO Act, no separate

punishment is awarded under section 376-AB of the Indian Penal

Code.

(6) The accused is hereby acquitted under section 235(1) of the

Code of Criminal Procedure for an offence punishable under section

323 of the Indian Penal Code and under sections 3 (1) (w) (i) (ii) of

the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities)

Act, 1989.

(7) All the substantive sentences of imprisonment shall run

concurrently.

(8) Accused is entitled for set off under section 428 of the Code

of Criminal Procedure.

(9) Copy of this judgment be given to Secretary, District Legal

Services Authority, Amravati who shall put the matter before the

Committee to determine the quantum of compensation under

section 357-A of Cr.P.C. to be paid to the victim under the Victim

Compensation Scheme".

2. The Prosecution's case, as revealed from the police

report, is as under:-

4 crappeal 117.2023.odt

(a) The Informant was residing with her husband and two

daughters. The Victim was her eldest daughter, studying in the

10th Standard. The Informant was the working woman. The

Appellant was known to the Informant and her family as he was the

friend of Informant's nephew. The Appellant was also residing near

the house of Informant. The Informant belonged to the Scheduled

Caste. On 11.09.2020, the Informant left for her work in the

morning and returned in the evening. The Victim was not in the

house. The Informant went to the house of her sister-in-law (wife of

husband's brother). The Victim was present there and appeared to

be frightened. On inquiry by the Informant, the Victim told her that,

while she was returning home in between 3.30 and 4.00 p.m., the

Appellant asked her to accompany him to an agricultural field.

When the Victim refused, the Appellant forcibly took the Victim with

him to an agricultural field. The Appellant raped the Victim.

Thereafter the Appellant dropped the Victim near her house. The

incident was reported to the Camp Police Station, Badnera and

Crime bearing No.0561/2020 came to be registered against the

Appellant for the offence punishable under Sections 376(2)(j), 354,

363 and 323 of the Indian Penal Code,1860 (for short, "IPC"), for

the offence punishable under Sections 4, 6 and 8 of the Protection of 5 crappeal 117.2023.odt

Children from Sexual Offences Act, 2012 (for short, "POCSO") and

for the offence punishable under Sections 3(1)(w) and the offence

punishable under Section 3(2) (va) of the Scheduled Castes &

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "SC

ST Act").

(b) The Victim was referred for Medical Examination. The Spot

Panchanama was drawn. The Appellant came to be arrested. The

statement of the Victim was recorded. The Samples of the Victim

and that of the Appellant and the seized muddemal were referred to

the Chemical Laboratory. The statements of witnesses were

recorded. The necessary documents were collected. On completion

of investigation, the Appellant came to be Charge-sheeted. The

learned Trial Court framed the Charge against the Appellant for the

offence punishable under Sections 363, 376 AB, 323 of the IPC, for

the offence punishable under Sections 4 and 6 of the POCSO and for

the offence punishable under Sections 3(1)(w)(i) and (ii) of the SC

ST Act below Exhibit-4. The Appellant pleaded not guilty and

claimed to be tried. To prove the Charge, the Prosecution examined

the following six witnesses:-

(i) Shri Niranjan R. Chaudhari, the Panch for the Spot

Panchanama, as PW 1.

(ii) The Informant/Victim's mother, as PW 2.

6 crappeal 117.2023.odt

(iii) The Victim, as PW 3.

(iv) The sister-in-law of the Informant, as PW 4.

(v) Dr. Alka Vijay Kute, the Medical Officer, as PW 5.

(vi) Sheetal D.Hirode, A.P.I., Investigating Officer, as PW 6.

The relevant documents are brought on record in the

evidence of the above referred witnesses.

(c) After the Prosecution closed the evidence, the statement

of the Appellant came to be recorded under Section 313(1)(b) of

the Cr.P.C. The Appellant stated that, he was falsely implicated. After

hearing both the sides and appreciating the evidence available on

record, the learned Trial Court convicted and sentenced the

Appellant as above.

3. Heard the learned Advocate for the Appellant, the

learned APP for the State and the learned Advocate for the

Respondent no.2 - Victim. Scrutinized the evidence on record.

(a) It is submitted by the learned Advocate for the

Appellant that, the age of the Victim was not disputed. The

Appellant was acquitted of the offence punishable under the Section

of SC ST Act. Though the incident is claimed to have happened in

the agricultural field, there were no injuries on the person of the

Victim. The Victim gave inconsistent versions in respect of the

incident. The Medical evidence do not corroborate the evidence of 7 crappeal 117.2023.odt

the Victim. The evidence of the sister-in-law of the Informant was

unnatural, as she did not report the incident and waited for the

Informant to come. The Victim's version of kidnapping and rape

was not believable. The Chemical Analysis (C.A.) Reports do not

support the case of prosecution. The evidence was not concrete. The

suggestion of false implication due to love affair between the

Appellant and the cousin of the Victim was given. The learned Trial

Court erred in appreciating the evidence on record and the Appeal

be allowed. He relied on the Judgments in Nirmal Premkumar and

Anr. Vs. State, in Criminal Appeal No.1098 of 2024 dated 11 th

March, 2024 by the Supreme Court of India and Mohan Ambadas

Meshram Vs. State of Maharashtra, 2018 ALL MR (Cri) 4362.

(b) It is submitted by the learned APP that, the Victim was

examined by the Medical Officer on the very next day. There was no

effective cross-examination of the Medical Officer. Though the

medical opinion was not conclusive, there was suggestive opinion of

sexual act. The exact account of the incident is not expected from

the Victim. The omission in the testimony of the Victim do not lend

her in the category of unreliable witness. The testimony of the

Victim was consistent. The cross-examination could not shake the

evidence of the Victim. Nothing impeaching was brought on record

by the Appellant. The cousin sister of the Victim was not examined 8 crappeal 117.2023.odt

to show love affair with the Appellant. No fault can be found with

the impugned Judgment and Order and the Appeal be dismissed.

(c) It is submitted by the learned Advocate for the Victim

that, the heinous crime was committed by the Appellant. The Victim

was not tutored. The Informant's testimony corroborate the Victim's

testimony. The Charge was proved and the Appeal be dismissed.

4. As regards the date of birth and the age of Victim is

concerned, the Informant PW 2, who is the biological mother of the

Victim deposed the date of birth as 26/12/2011. The Birth

Certificate of the Victim was brought on record in her evidence at

Exhibit-20 to corroborate the said date of birth. From the cross-

examination, it is clear that, the said Exhibit-20, the date of birth

and the age of the Victim was not disputed. Even at the time of

argument, the date of birth and age of Victim is not disputed. Thus,

on the basis of the evidence on record, it is proved that, the Victim

was the `child', as defined under section 2(d) of the POCSO i.e.

below the age of 18, at the time of lodging report which was

subsequent to the incident.

5. As regards the Charge is concerned, the Prosecution's

case largely rest on the testimony of the Victim - PW 3. The Victim

deposed that, she was residing with her parents and younger sister.

When she had gone to the house of the sister-in-law of the 9 crappeal 117.2023.odt

Informant (Mothi-aai), the Appellant asked her to come with him on

the pretext of giving flower to her. The Victim told him that, she will

ask her mother. The Appellant pulled the Victim and took her to an

agricultural field. The Appellant made the Victim to lie down. The

Appellant removed his clothes and the clothes of the Victim. At the

time of rape, the Victim shouted/screamed. The Appellant

committed sexual intercourse with the Victim. The Appellant

discharged white liquid. Thereafter the Appellant brought the

Victim out of the field and the Victim returned home. The Victim

deposed that, she narrated the incident to her Mothi-aai and

thereafter to her mother. The Victim identified the Appellant before

the learned Trial Court. She deposed that, her statement was

recorded by the Police and the learned Magistrate.

6. The cross-examination of the Victim shows that, the

road in front of her house was the busy road. There were shops

surrounding her residence. There is one Dispensary and one School

in front of her house. During Corona period, the Dispensary was

functioning. Even the evidence of PW 2 - Informant shows that, the

road in front of their house was busy road and there are shops

surrounding their house. The evidence of PW 4 - Sister-in-law of the

Informant shows that, she was residing near the house of the

Informant. It is, therefore, clear that, the Victim was near her house 10 crappeal 117.2023.odt

when she was taken by the Appellant. The evidence of the Victim in

respect of kidnapping is completely vague. The place was the

crowded place and the Victim's testimony is completely silent as to

in what manner she was kidnapped. She only deposed that, the

Appellant pulled her and took to the agricultural field. It is strange

that, the Victim remained silent while she was kidnapped by the

Appellant. The evidence of the Victim is far from establishing the

offence of kidnapping.

7. As regards the offence of rape is concerned, the

evidence of the Victim that, the Appellant discharged white liquid

was an improvement/omission, which is proved in the evidence of

PW 6 - Investigating Officer. The evidence of the Victim that, she

was raped by the Appellant by inserting his private part in her

vagina, do not find corroboration from the testimony of PW 2 -

Informant and PW 4 - Moth-iaai of the Victim to whom she narrated

the incident. According to the mother and Mothi-aai of the Victim,

the Victim told them that, the Appellant put his tongue inside her

vagina. This shows complete inconsistency in the version of the

Victim deposed before the Trial Court and her previous versions

narrated to her mother and Mothi-aai. This is materiel inconsistency.

8. There is medical evidence in the nature of the

testimony of PW 5, who was the Medical Officer at the Government 11 crappeal 117.2023.odt

Hospital, where the Victim was taken for medical examination. The

evidence of PW 5 shows that, the history given by the Victim was

that, the Appellant lured her by offering flower, took the Victim to

the field and licked her private part. The Medical Officer found

congestion and redness at the vagina opening and according to her,

the same can be the result of putting the tongue in the vagina. The

cross-examination of PW 5 shows that, the congestion and redness

on the vagina may be possible due to infection and itching. Her

cross-examination further shows that, she cannot express exact

opinion, as the Sonography was recommended. The medical

examination papers of the Victim are brought on record at Exhibits

33, 34 and 35. Though in Column no.25 of Exhibit 34, the Hymen

is shown to be Absent ((broken) in the opinion column no.29 of

Exhibit 34, this witness mentioned that, `exact opinion cannot be

given - advised Tests for that'. The evidence of PW 5 shows that,

there was no conclusive opinion in respect of sexual assault. The

medical evidence is not conclusive. Though, the Victim deposed of

rape by the Appellant on her in the agricultural field after removing

the clothes and making her lie down on the ground, there is no iota

of evidence to show any marks or injury on the person of the Victim.

Therefore, the said version of the rape by Victim is required to be

seen with serious doubt.

12 crappeal 117.2023.odt

9. In Nirmal Premkumar & Anr.(supra), the term, `sterling

witness' is considered. The evidence of the Victim shows that, she is

not the witness of sterling quality. Her evidence in respect of

kidnapping is vague. She gave different versions in respect of the

sexual assault on her. No injury was found on her person though

she deposed of rape on her in the agricultural field by removing her

clothes. The findings recorded by the Medical Officer in respect of

redness and congestion in the vagina of the Victim, are not

conclusive of sexual assault. The C.A. Reports at Exhibits 19 and 20

in respect of the clothes of the Victim and that of the Appellant and

vaginal swabs of the Victim are not incriminating as neither blood

nor semen were found on the same. With these aspects emanating

from the evidence on record, the prosecution's case is required to be

seen with doubt.

10. The above discussed evidence on record is not sufficient

to draw the presumption under Section 29 of the POCSO Act. Even

if it is considered that, there is sufficient evidence on record in

support of the prosecution's case, the Appellant have rebutted the

presumption, as seen from the cross-examination of the Victim,

Victim's mother and sister-in-law of the Informant. The evidence of

PW 4 - Sister-in-law of the Informant shows that, the Appellant and

Anju (who is her niece) were on talking terms and Anju was the 13 crappeal 117.2023.odt

college going girl. The Appellant has put to the Victim in the cross-

examination that, the Victim was the messenger between the

Appellant and said Anju and the Victim's mother saw her giving the

message and so lodged the report against the Appellant. Suggestions

are given that, the family of the Informant was angry with the

Appellant and, therefore, false report was lodged. In the statement

under Section 313 (b) of the CrPC, it is stated by the Appellant that,

there was love affair between him and said Anju and they were to

marry, however, this false report was lodged. It is not the

requirement under the law that, the presumption is to be rebutted

by leading strict evidence. It can be rebutted on the touchstone of

preponderance of probability. The defence of the Appellant cannot

be said to be improbable. However, in the light of the above

discussion, there is no question of raising the presumption. The

evidence as discussed above, do not establish the Charge beyond

reasonable doubt. With the evidence available on record, it is not

possible to maintain the conviction and the impugned Judgment and

Order requires interference. Hence, the following Order:-

ORDER

(i) The Appeal is allowed.

(ii) The conviction and sentence recorded by the learned

Trial Court against the Appellant for the offence punishable under

14 crappeal 117.2023.odt

Sections 363 and 376 AB of the Indian Penal Code,1860 and for the

offence punishable under Sections 4 and 6 of the Protection of

Children from Sexual Offences Act, 2012 by Judgment and Order

dated 29.08.2022 in Special Case No.248/2020 is quashed and set

aside.

(iii) The Appellant is acquitted for the offence punishable

under Sections 363 and 376 AB of the Indian Penal Code and

Sections 4 and 6 of the Protection of Children from Sexual Offences

Act, 2012.

(iv) The Appellant is behind bars. He be set at liberty, if not

required in any other offence.

(v) The fine amount, if any, paid by the Appellant be

refunded to him.

(vi) The record and proceedings be sent back to the learned

Trial Court.

(vii) The fees of the appointed Advocate is quantified to

Rs.7500/- (Rs. Seven thousand five hundred only) to be paid by the

High Court Legal Services Authority, Nagpur.

(NEERAJ P. DHOTE, J.)

mukund ambulkar 15 crappeal 117.2023.odt

Signed by: Ambulkar (MLA) Designation: PS To Honourable Judge Date: 06/03/2026 11:31:18