Vivek Khushal Rangari vs State Of Mah.T Hr. Pso Ballarshah ...
2026 Latest Caselaw 2487 Bom

Bombay High Court

Vivek Khushal Rangari vs State Of Mah.T Hr. Pso Ballarshah ... on 11 March, 2026

2026:BHC-NAG:4048


                                                        1                               cr.appeal.22.24-J.odt


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


                                     CRIMINAL APPEAL NO. 22 OF 2024



                    Vivek Khushal Rangari,
                    Aged : 34 yrs., Occu. : Electrician,
                    R/o. Ballarshah, Tah. Ballarpur,
                    Distt. Chandrapur.                                             ... APPELLANT

                              ...VERSUS...
               1. State of Maharashtra,
                  Through P. S. O., Ballarshah, Tah. Ballarpur.
                  District - Chandrapur.
               2. XYZ Mother of the Victim in
                  Crime No.778/2018 dated 15.07.2018,
                  registered with P.S.O. Ballarsha,
                  Tah. Ballarsha, District Chandrapur.                             ...RESPONDENTS

              ------------------------------------------------------------------------------------------------
              Mr. M. V. Rai, Advocate for Appellant.
              Mr. U. R. Phasate, A.P.P. for Respondent/State.
              Ms. Shreya H. Bhagat, Advocate (Appointed) for Respondent No.2.
              -----------------------------------------------------------------------------------------------
              CORAM : NEERAJ P. DHOTE, J.
              JUDGMENT RESERVED ON : 06.02.2026.
              JUDGMENT PRONOUNCED ON : 11.03.2026


              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 26.08.2021 passed by the learned Additional

Sessions Judge, Chandrapur in Special (POCSO) Case No.69/2018

convicting and sentencing the Appellant as follows :

2 cr.appeal.22.24-J.odt

"1) The accused Vivek Khushal Rangari, Aged 34 years, Occu. Electrician, R/o Ballarshah, Tah Ballarpur, Distt. Chandrapur is hereby convicted for the offence punishable under Section 367 of the Indian Penal Code and he shall undergo Rigorous Imprisonment for three years and shall pay a fine of Rs.2000/- (Two Thousand) in default, R.I. for one month.

2) The accused Vivek Khushal Rangari is also hereby convicted for the offence punishable under Section 6 of the Protection of Children From Sexual Offences Act, 2012 and he shall undergo Rigorous Imprisonment for Ten years and shall pay a fine of Rs.3000/- (Three thousand) in default, R.I. for 3 months.

3) Both the sentences shall run concurrently.

4) Fine amount be given to the victim resident of Buddha Nagar Ward, Ballarpur, Tah. Ballarpur, Distt. Chandrapur.

5) Set off be given to the accused as per Section 428 of Criminal Procedure Code, from the date of his arrest i.e. 15/07/2018.

6] Seized property, if any, being worthless be destroyed after appeal period is over.

7] Copy of the judgment be given free of cost to the accused."

2. The case of the prosecution's as revealed from the police

report is as under :

a] The Informant was residing with her husband and two

3 cr.appeal.22.24-J.odt

minor sons. The Victim son was 9 years old. The Informant and her

husband are labourer. The Victim was studying in 4th standard. The

Appellant was residing in the same locality. After the school hours,

the Victim used to go out for playing. On 15.07.2018, being the

holiday, the Victim went to play in the morning at 7.00 a.m. at

Vishwashanti Square and returned home at 11.00 a.m. with his two

friends. Immediately thereafter, the Victim and his friends went to

play. In the afternoon, the informant went in the search of the Victim,

however, he was not found. The Informant again went in the search

of the Victim. The Victim was playing with his friends. The Informant

asked the Victim to come home for lunch. In the evening again, the

Victim went to play at 4.00 p.m. and returned home at 7.00 p.m.. At

that time, the Victim appeared annoyed. When the informant asked

the Victim to study, the Victim told the informant that, the Appellant

committed unnatural intercourse with him in the public toilet. The

Informant told the incident to her husband. The Informant, her

husband and the Victim went to Ballarshah Police Station and lodged

the report. A Crime No.778/2018 came to be registered against the

Appellant for the offences punishable under Sections 367, 377 of the

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

punishable under Sections 4 and 6 of the Protection of Children from

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

4 cr.appeal.22.24-J.odt

b] The police sent the Victim for medical examination. The

statement of the Victim was recorded. The Appellant came to be

arrested. The Appellant was sent for Medical Examination. The

blood samples of the Victim and that of the Appellant came to be

drawn. The Spot Panchanama was prepared. The clothes of the

Appellant and the Victim came to be seized. The statement of the

Victim has been recorded. The seized muddemal was sent for

examination to the Chemical Laboratory. The necessary documents

were collected. On completion of the investigation, the Appellant

came to be chargesheeted.

c] The learned Trial Court framed the Charge against the

Appellant for the offence punishable under Sections 377, 367 of the

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

POCSO Act below Exhibit-11. The Appellant pleaded not guilty and

claimed to be tried. To prove the Charge, the prosecution examined in

all Nine (9) witnesses, who are the Informant (PW-1), the panch

witness (PW-2), the Victim (PW-3), the father of Victim (PW-4), the

Medical Officer (PW-5), the friends of the Victim (PW-6, PW-7 and

PW-8) and the Investigating Officer (PW-9). In the evidence of the

witnesses, the relevant documents are brought on record. 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 5 cr.appeal.22.24-J.odt

stated that, he was falsely implicated. Appreciating the evidence on

record and after hearing both the sides, the learned Trial Court

passed the impugned Judgment and Order.

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

A.P.P. for the State and the learned Advocate for the 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. There are material

contradictions in the testimony of the Victim and the Informant. The

evidence in respect of day of incident is contradictory. The report

taken on the statement of the witness is not brought on record. The

Informant nowhere deposed of the incident dated 9th July. The

medical evidence do not corroborate the testimony of the Victim. No

blood stains are shown on the clothes of the Victim and that of the

Appellant in the Seizure Panchanamas. The C.A. reports are

inconclusive and hence, the possibility of tampering cannot be ruled

out. One of the friends of the Victim did not support. The presence

of the another friend of the Victim is not shown by the Victim. The

omissions in the evidence of the Victim and the Informant are proved

through Police Officer, who recorded the statement. The place of

incident was the public toilet and no such act would be done by any

one at such place. The prosecution failed to prove the Charge.

Hence, the conviction and sentence be set aside and the Appeal be 6 cr.appeal.22.24-J.odt

allowed.

b] It is submitted by the learned A.P.P. that, the conviction is

for unnatural offence. The two eye witnesses were playing with the

Victim prior to the incident. There are minor discrepancies in the

testimony of the Victim and the same are not fatal. The friend of the

Victim confirms the incident as deposed by the Victim. Nothing has

come in the cross-examination of the witnesses so as to discredit their

testimony. The discrepancy in respect of day of incident is not fatal

for the prosecution. The report was lodged on the day of incident.

Though medical evidence is not supportive, it would not be fatal for

the prosecution. The witnesses withstood the cross-examination. The

foundational facts are proved by the prosecution. There is no doubt in

respect of the evidence on record. The Appeal be dismissed.

c] The learned Advocate for the Victim submitted that, she

adopts the submissions made by the learned A.P.P.

4. When the charge is for the offence punishable under the

Section of POCSO Act, it becomes necessary for the prosecution to

prove that, the Victim was a child as defined under Section 2(d) of

the POCSO Act. In the case at hand, according to the prosecution, at

the time of incident, the Victim was a child aged 9 years. As it is clear

from the cross-examination of the witnesses, the age of Victim is not

disputed. The Birth Certificate at Exhibit-27 showing the date of birth 7 cr.appeal.22.24-J.odt

of the Victim as 24.09.2008, is admitted by the Appellant. Even

during the submissions, the learned Advocate for the Appellant

submitted that, there was no dispute in respect of the age of the

Victim. In this view of the matter and on the basis of the evidence on

record, the prosecution proved that, the Victim was the child at the

time of lodging report and the incident prior to day.

5. It is the prosecution's case that, the Appellant kidnapped

the Victim and committed unnatural offence with the Victim at public

toilet near the place where the Victim was playing with his friends. As

it can be seen from the cross-examination of the Victim (PW-3), the

Informant (PW-1) and the father of the Victim (PW-4) that, the

Appellant was known to them. It has come in the cross-examination

that, the relative of the Informant was residing nearby and Appellant

performed the plumbing work in the house of the said relative. It is

the defence of the Appellant that, as is clear from the cross-

examination that, the relative of the Victim owed Rs.5,000/- to the

Appellant for the plumbing work. It is also the defence that, the

Appellant performed the work of repairing fan in the house of the

Victim and charged Rs.500/- for the same and the said money was

not paid by the Victim's father to him. It is the defence that, to avoid

giving the said payments, the false case was lodged against the

Appellant.

8 cr.appeal.22.24-J.odt

6. The Victim deposed that, on 09.07.2019, while he was

playing with his friends named Chetan, Harsh, Moksh and Raj in the

ground, the Appellant came there and took him inside the public

toilet. The Appellant removed the Victim's pant and also his pant and

committed unnatural intercourse with him. When the Victim shouted,

the Appellant let him free. It is further deposed by the Victim that,

again on 15.07.2019, while he was playing in the ground, in the

afternoon at 1.00 p.m., the Appellant took him to the public toilet and

committed unnatural intercourse with him. While he shouted at the

time of second incident, his friends came there and the Appellant left.

The Victim deposed that, he informed his mother about the act

committed by the Appellant on him. It has come in the cross-

examination of the Victim that, the said toilet was the public toilet

constructed by local body where the residents of Santoshi Mata Ward

and Buddha Nagar Ward used to come to answer the natures call.

The evidence of Victim's mother shows that, the Victim informed her

about the incident dated 15.07.2018. Her evidence do not show that,

the Victim informed her about the incident dated 09.07.2018.

According to the Victim, the day of incident was Monday and not

Sunday. According to the Victim's mother, the day of incident was

Sunday. This shows inconsistency in the evidence of the Victim and

mother in respect of the incident. The evidence of the Victim's 9 cr.appeal.22.24-J.odt

mother that the Victim appeared to be annoyed when he came home

was an omission proved through PW-9, Police Officer, who recorded

her statement. Though the Victim's mother deposed that, she lodged

the report and the crime was registered on her report, it has come in

the Victim's cross-examination that, he went to the police with his

father and he gave the information of the incident to the police and

his father signed on the report. However, undisputedly, the said

report is not on record. The adverse inference can be drawn from this

evidence that, the said report was not favourable to the prosecution.

7. The evidence of Medical Officer (PW-5) shows that, he

was posted at the Rural Hospital, Ballarpur in July 2018. On

16.07.2018, the Victim was brought for medical examination. He

found no sign of any injury or abrasion on the Victim. He took the

cotton swab of anal region and blood sample of the Victim. His

evidence further shows that, the Appellant was brought for medical

examination. On examination, he found no sign of injury or abrasion

on penis. There were few abrasion over chest and abdomen. The

medical reports of the Victim and that of the Appellant are brought on

record in his evidence at Exhibits 47 and 51. The cross-examination

of this Medical Officer shows that, injuries on the penis and the anus

are possible due to unnatural sex with a boy aged between 10 and 13

years, by the person aged between 28 and 30 years. His cross-

10 cr.appeal.22.24-J.odt

examination shows that, whether unnatural sex was committed with

the Victim, it depends on the circumstances. This medical evidence on

record clearly shows that, there were no injuries on the anus of the

Victim and the penis of the Appellant. Considering the nature of the

accusation, the abrasions over the chest and abdomen are

inconsequential.

8. PW-6, the friend of the Victim did not support the case of

the prosecution. PW-7, the friend of the Victim though deposed that,

while they were playing near the public toilet, the Appellant came

there and took the Victim with him and they heard the sound from

the direction of the public toilet and when they went towards the

public toilet, they noticed that, the Appellant and the Victim coming

out of the public toilet and they both left, the evidence of the Victim

do not show the presence of this PW-7 as the friend with whom he

was playing. In the evidence of PW-8, he deposed that, on

09.07.2018, while they were playing, the Appellant came and took

the Victim with him toward the public toilet. They heard the cry of

the Victim and when they went towards the public toilet, the Victim

and the Appellant left to their respective houses. On 15.07.2018, the

similar incident took place. The cross-examination of this witness

shows that, he deposed as per the directions of the police. Even

accepting the evidence of this witness, he is not the witness to the act 11 cr.appeal.22.24-J.odt

of unnatural intercourse and further his witness would at the most

create a suspicion and nothing more.

9. The another aspect is that, the report of the Chemical

Analyzer at Exhibit-6 in respect of the clothes of the Victim and the

clothes of the Appellant, though show two (2) blood stains on the

jeans pant of the Victim and blood stains on the full pant and full

T-shirt of the Appellant, the blood group was not determined as the

result was inconclusive. It is surprising that, though Exhibits - 29

and 38, the Seizure Memos of the clothes of the Victim and the

Appellant respectively do not speak of any blood stains on the clothes,

how the blood stains were found on the above referred clothes. This

glaring discrepancy finds favour with the submission made by the

learned Advocate for the Appellant that, the possibility of tampering

with the articles cannot be ruled out. Be that as it may. In any case,

the C.A. report do not take case of prosecution any further.

10. The above discussion shows that, the prosecution failed to

establish the charge beyond reasonable doubt. There are vital

inconsistencies in the testimony of the Victim and that of his mother.

No injuries were found on the Victim and on the Appellant. The place

of incident, being the public toilet, it is highly improbable that, such

act would be committed by the Appellant on the Victim and that too

during the day time. The report taken by the police as stated by the

Victim under the signature of the Victim's father, is not brought on 12 cr.appeal.22.24-J.odt

record by the prosecution. With the evidence available on record, the

prosecution case is required to be seen with doubt. With these

aspects of the matter, no presumption under Section 29 of the POCSO

can be raised against the Appellant. Thus, it is not possible to

maintain the conviction recorded by the learned Trial Court. Hence,

the following order :

ORDER

i] The Appeal is allowed.

ii] The conviction and sentence recorded by the learned Trial Court against the Appellant by the impugned Judgment and Order dated 26.08.2021 in Special (POCSO) Case No.69/2018, is hereby quashed and set aside.

iii] The Appellant is acquitted for the offence punishable under Sections 367 of the Indian Penal Code, 1860 and for the offence punishable under Section 6 of the POCSO Act.

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

viii] Fees of the appointed Advocate for the Respondent No.2 is quantified to Rs.7,500/- to be paid by the High Court Legal Services Sub-Committee, Nagpur.

(NEERAJ P. DHOTE, J.) Signed by:RGurnule Mrs. R.M. MANDADE Designation: PA To Honourable Judge Date: 11/03/2026 11:17:06