[Cites 19, Cited by 0]
Bombay High Court
Kamlesh Ashok Gaidhane vs State Of Mah. Thr. Pso Ps Sakoli ... on 23 March, 2026
1 apeal642.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.642/2023
Kamlesh Ashok Gaidhane,
Aged about 28 years, Occu. Labourer,
R/o Jambhali (Sadak), Tah. Sakoli,
District Bhandara. ... Appellant
- Versus -
1. State of Maharashtra,
through Police Station Officer,
Police Station Sakoli,
District Bhandara.
2. XYZ Victim
Crime No.08/2019
Police Station Sakoli,
Bhandara. ... Respondents
-----------------
Mr. C.B. Barve, Advocate with Mr. Himanshu A. Khedikar, Advocate
for the Appellant.
Mr. Bhagwan M. Lonare, A.P.P. for the Respondent No.1/State.
Ms. Archana P. Murrey, Advocate (appointed) for the Respondent
No.2.
----------------
CORAM: NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT: 09.02.2026.
DATE OF PRONOUNCING THE JUDGMENT: 23.03.2026.
JUDGMENT
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 04.05.2023 passed by the learned Additional
2 apeal642.2023.odt
Sessions Judge, Bhandara in Special (Child Protection) Case
No.17/2019 convicting and sentencing the Appellant as follows:-
"1) The accused Kamlesh Ashok Gaidhane, R/o.
Jambhali (Sadak) Tah. Sakoli, District Bhandara, is
hereby convicted under Section 235(2) Code of Criminal
Procedure for the offences punishable under Section
363, 376(2)(n), 376(2)(i) of the Indian Penal Code and
under Section 6 of Protection of Children from Sexual
Offences Act, 2012, and hereby acquitted for the
offences punishable under Section 3(2)(v), 3(1)(w)(i)
(ii) of the Schedule Caste and Schedule Tribes
Prevention of Atrocities Act, as per section 235(1) of the
Code of Criminal Procedure.
2) The accused is sentenced to undergo rigorous
imprisonment for three years for an offence punishable
under Section 363 of Indian Penal Code and to pay fine
of Rs.1,000/-, in default of payment of fine further S.I.
for one month.
3) The accused is sentenced to undergo rigorous
imprisonment for ten (10) years for an offence
punishable under Section 6 of the Protection of Children
from Sexual Offences Act, 2012 and to pay fine of
Rs.3,000/-, in default of payment of fine further S.I. for
three months.
4) As per Section 42 of the POCSO Act no separate
punishment is given under Section 376(2)(n), 376(2)(i)
of the I.P.C.
5) The period of detention undergone by the accused
during investigation and trial shall be set off against the
term imprisonment imposed on him.
6) All the punishments shall run concurrently.
7) The amount of fine if paid by the accused shall be
paid to the victim as a compensation after appeal period
is over.
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8) The bail bonds of the accused shall stands
cancelled.
9) The seized motor-cycle MH-33/D-7898 if not
returned be returned to its registered owner and other
articles being worthless be destroyed after appeal period
is over.
10) Conviction warrant be prepared and sent to Jail
Authority.
11) ....."
2. The prosecution's case, as revealed from the Police Report, is
as under:-
a) The Informant was residing with his family comprising wife,
one son and Victim daughter. The Victim was aged 14 years and 9
months. On 07.01.2019 the Informant left his house for work.
Around 11.45 a.m. he received the phone call from the neighbourer
that, the Victim was not at home. The neighbourer was informed by
the Informant's wife about the same. The Informant returned home
in the afternoon and enquired with his wife. The Informant's wife
informed him that, in the morning Victim left the house for fetching
the water from the well and did not return. The Informant enquired
about the Victim with his relatives, however, in vain. The Informant
came to know that, the Appellant who was the resident of the same
village was not in the village. The Informant went to the Sakoli
Police Station and lodged the Report and Crime No.08/2019 came to
be registered against the Appellant for the offence punishable under
Sections 363 of the Indian Penal Code, 1860 (for short "I.P.C.").
4 apeal642.2023.odt
b) During the investigation, the Police were able to know the
whereabouts of the Appellant and the Victim. The Appellant and the
Victim were brought by the Police in the Police Station. The Victim
was referred for medical examination. The statement of the Victim
was recorded. According to the Victim, while she went to fetch the
water, the Appellant came and asked her to sit on the motorcycle.
The Victim sat on the motorcycle and went with the Appellant. The
Appellant raped the Victim at one place at Rawanwadi. Thereafter
the Appellant took the Victim to the house of his sister where they
stayed for 3 days. At said place, the Appellant raped the Victim.
Thereafter the Victim was taken by the Appellant on the room of his
friend, where he raped her. They both stayed at the place of
Appellant's friend for 4 days. The Appellant came to be arrested.
The Spot-Panchanama was conducted. The Appellant was referred
for medical examination. The clothes of the Victim and that of the
Appellant came to be seized. The statement of witnesses were
recorded. The necessary documents were collected. On completion
of investigation, the Appellant came to be chargesheeted for the
offence punishable under Sections 363, 376(2)(n), 376(3) of I.P.C.
and for the offence punishable under Sections 4 and 6 of the
Protection of Children from Sexual Offences Act, 2012 (for short
"POCSO Act") and for the offence punishable under Sections
3(2)(v), 3(2)(va) and 3(1)(w)(i)(ii) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short
"SCST Act").
c) The learned trial Court framed the Charge against the
Appellant for the offence punishable under Sections 363, 376(2)(n)
376(2)(i) of I.P.C. and for the offence punishable under Section 6 of
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the POCSO Act and for the offence punishable under Sections
3(2)(v), 3(1)(w)(i)(ii) of the SCST Act below Exh.22. The Appellant
pleaded not guilty and claimed to be tried. To prove the Charge, the
prosecution examined in all eleven (11) witnesses including the
Victim, the Informant, the Panch witnesses, the Medical Officers, the
Policemen and the Investigating Officer. The relevant documents are
brought on record in the evidence of the witnesses. After the
prosecution filed the evidence closure pursis, 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. The
Appellant examined one (1) defence witness. After hearing both the
sides and appreciating the evidence on record, 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 prosecution failed to establish that, the Victim was the 'child'.
No witness was examined to prove the date of birth. There was love
affair between the Appellant and the Victim. The Victim eloped with
the Appellant. The medical evidence shows that, rupture to the
hymen was old healed. The defence witness was in fact witness of
the prosecution and since the prosecution did not examine her, the
Appellant examined her as the defence witness. There was no
sufficient evidence to maintain the conviction and the Appeal be
allowed.
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b) It is submitted by the learned A.P.P. that, by way of birth
certificate, the prosecution proved that, the Victim was the 'child'.
The Victim's testimony was corroborated by the medical evidence.
The defence witness did not help the Appellant. There is sufficient
evidence on record to maintain the conviction and the Appeal be
dismissed.
c) It is submitted by the learned Advocate for the Victim that,
there was no love affair between the Appellant and the Victim. The
Victim was kidnapped by the Appellant. The evidence of the Victim
was corroborated by the evidence of her father and medical
evidence. The Appeal be dismissed.
4. When the Charge is for the offence under the penal provisions
of POCSO Act, it becomes necessary for the prosecution to establish
that, the Victim was a 'child' as defined under Section 2(d) of the
POCSO Act. To prove the age of the Victim, the prosecution brought
on record the copy of birth certificate below Exh.35 wherein the
Victim's date of birth was recorded as 12.3.2004. The Informant is
the father of the Victim and is examined as P.W.2. In his evidence he
deposed the date of birth of the Victim as 12.3.2004. The evidence
of P.W.9 Prahakar G. Tikkas shows that, at the relevant time he was
posted as the Deputy Superintendent of Police (D.Y.S.P), Pawni. The
investigation of the Crime was marked to him. During investigation,
he sent the letter below Exh.77 to get the birth certificate, the caste
certificate and the resident certificate of the Victim. His evidence
shows that, Exh.35 was the birth certificate of the Victim. From the
tenor of the cross-examination of the witnesses it is seen that, the
Appellant has not seriously disputed the date of birth of the Victim.
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Nothing is brought on record to create any doubt in respect of the
birth certificate of the Victim which is a public document. The said
document is collected during the course of investigation from the
concerned office of the Grampanchayat. The said birth certificate
shows that, the registration of the date of birth was done on
09.04.2004, which was within a period of one month from the birth.
With this reliable evidence on record, the prosecution proved the
date of birth of the Victim as 12.3.2004. The Crime was registered
on 08.01.2019. This evidence shows that, at the relevant time, the
Victim was aged 14 years and 10 months. Therefore, it is clear that,
at the relevant time the Victim was the 'child' i.e. below the age of
18 years.
5. It is the prosecution's case that, the Appellant kidnapped the
Victim and raped her. The Victim who is examined as P.W.1 deposed
that, the Appellant was the resident of her village. She used to talk
with the Appellant like the brother. On 07.01.2019 in the morning
she went out of her house on the well to fetch the water. The
Appellant came near the well and asked her to sit on the motorcycle
and the Appellant made her to sit on the motorcycle and took her at
one secluded place and raped her. From there the Appellant took her
to the house of his sister where they stayed for three (3) days where
the Appellant raped her. Thereafter, the Appellant took her to one
room of his friend at Mendha where he raped her four (4) times.
They stayed there for four (4) days. On 13.01.2019 around 07.00
p.m. the Appellant and she came to Lakhni Bus Stop where the
Police apprehended them and brought them to the Police Station.
Her parents were present in the Police Station. Her statement was
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recorded. She was sent for medical examination. The medical
evidence of P.W.11 Dr. Krushna M. Shende shows that, on
14.01.2019 he examined the Victim at the District General Hospital,
Bhandara and on her regular examination, no evidence of any injury
was noticed. The Victim's hymen was old ruptured.
6. The cross-examination of the Victim shows that, the Appellant
was residing 4 to 5 houses away from her house. She used to talk
with the Appellant and, therefore, the parents used to doubt and
used to ask the Victim not to talk with the Appellant. The Victim was
angry as her parents stopped her from going to school and she told
her parents that she will leave the house. This cross-examination
clearly indicates that, acquaintance of the Victim with the Appellant
was not liked by her parents and she was prevented from going to
school. Her cross-examination shows that, defence witness Ranjeeta
Mangesh Borkar was residing near her house and she was
acquainted with her. She and defence witness Ranjeeta Borkar used
to fetch the water from the same well. The Charge-sheet shows that,
said Ranjeeta Borkar was cited as witness of the prosecution.
However, prosecution did not examine her. The Appellant examined
her as the defence witness.
7. The evidence of defence witness Ranjeeta Borkar shows that,
she was the neighbour of the Victim and sometimes she and the
Victim used to fetch the water on the well and they were known to
each other. On 07.01.2019, she informed the Victim that, she was
going to her in-laws house. The Victim met her at the Sakoli State
Transport (S.T.) Bus Stand. She and the Victim boarded the bus.
9 apeal642.2023.odt
She removed ticket for the place Sadak Arjuni and Victim removed
ticket for Ramatola. She got down from the Bus at Sadak Arjuni and
Victim proceeded further in the Bus. The cross-examination of this
defence witness by the learned A.P.P. shows that, her testimony
remained unshaken. The evidence of this witness falsifies the
Victim's testimony that, on 07.01.2019 the Appellant took her on the
motor-cycle. Moreover the evidence of the Victim that, the Appellant
came on the motor-cycle near the well and took her with him is an
omission as seen from her cross-examination. This indicates that, the
Victim did not disclose the truth. The Victim being the unreliable
witness, her testimony that, the Appellant raped her on several
occasions at different places is required to be seen with doubt. This
being the position it is not possible to maintain the conviction on the
basis of the Victim's testimony. True it is that, the hymen of the
Victim was found ruptured and old healed, there is no evidence to
relate that, it was the Appellant who was responsible for the same.
There is no other evidence to support the Victim's version. The
Reports of the Chemical Analyzer in respect of articles seized during
the course of investigation are not incriminating in nature. The
suggestions are given that, there were love relations between the
Victim and the Appellant who was 21 years of age at the relevant
time. The other evidence on record takes the case of prosecution
nowhere. In this view of the matter, the conviction and sentence
based on the unreliable testimony of the Victim requires
interference. Hence, the following order:-
ORDER
i) The Appeal is allowed.
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ii) The judgment and order dated 04.05.2023 passed by the
learned Additional Sessions Judge, Bhandara in Special (Child
Protection) Case No.17/2019 convicting and sentencing the
Appellant for the offence punishable under Sections 363, 376(2)(n),
376(2)(i) of I.P.C. and under Section 6 of POCSO Act is quashed and
set aside.
iii) The Appellant is acquitted of the offence punishable under
Sections 363, 376(2)(n), 376(2)(i) of I.P.C. and under Section 6 of
POCSO Act.
iv) The Appellant is behind bars. He be released, if not required
in any other Crime.
v) The fine amount, if any, paid by the Appellant be refunded to
him.
vi) The fees of the learned Advocate appointed for the
Respondent No.2 is quantified at Rs.7,500/-. The same shall be paid
by the High Court Legal Services Authority, Nagpur.
vii) Record and proceedings be sent back to the learned trial
Court.
viii) Appeal is allowed in the above terms and disposed of.
(NEERAJ P. DHOTE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 23/03/2026 11:18:10
