[Cites 25, Cited by 0]
Bombay High Court
Digambar S/O. Maroti Hagwane vs State Of Mah. Thr. Pso, Sevagram Wardha ... on 25 March, 2026
2026:BHC-NAG:4742
1 apeal688.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.688/2023
Digambar S/o Maroti Hagwane,
Aged 40 years, Occu. Labour,
R/o Village Sevagram Wardha,
Tahsil and District Wardha. ... Appellant
- Versus -
1. State of Maharashtra,
through P.S.O. Sevagram,
Wardha.
2. XYZ the Victim in Crime No.345/2020
registered with P.S.O., Sevagram,
Wardha, District Wardha. ... Respondents
-----------------
Mr. Mahesh Vasant Rai, Advocate for the Appellant.
Mr. Bhagwan M. Lonare, A.P.P. for the Respondent No.1/State.
Mrs. Varsha A. Warade, Advocate (appointed) for the Respondent
No.2.
----------------
CORAM: NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT: 13.02.2026.
DATE OF PRONOUNCING THE JUDGMENT: 25.03.2026.
JUDGMENT
This is Appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 (for short "Cr.P.C.") against the judgment and order
dated 19.01.2023 passed by the Special Judge (POCSO Act), Wardha
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in Special (POCSO) Case No.163/2020 convicting and sentencing
the Appellant as follows:-
"1. Accused Digambar Maroti Hagwane is convicted
for offences punishable under section 363, 366(A),
376(AB), 506 of the Indian Penal Code and section 6,
10 of Protection of Children from Sexual Offences Act
vide section 235(2) of Code of Criminal Procedure.
2. Accused is sentenced to suffer rigorous
imprisonment for 2 years (Two years) and to pay fine
of Rs.2,000/- (Rs. Two Thousand only) for offence
punishable under section 363 of I.P.C. In default of
payment of fine he is sentenced to suffer simple
imprisonment for two months.
3. Accused is sentenced to suffer rigorous
imprisonment for 3 years (Three years) and to pay fine
of Rs.3,000/- (Rs. Three Thousand only) for offence
punishable under section 366(A) of I.P.C. In default of
payment of fine he is sentenced to suffer simple
imprisonment for three months.
4. Accused is sentenced to suffer rigorous
imprisonment for 20 years (Twenty years) and to pay
fine of Rs.15,000/- (Rs. Fifteen Thousand only) for
offence u/s/5(m) p/u/s6 of POCSO Act. In default of
payment of fine he is sentenced to suffer simple
imprisonment for two years. In view of provisions of
sec.42 of POCSO Act, no separate punishment is given
for offence p/u/sec.376AB of I.P.C.
5. Accused is sentenced to suffer rigorous
imprisonment for 7 years (Seven years) and pay fine of
Rs.5,000/- (Rs. Five Thousand only) for offence p/u/s.
10 of POCSO Act. In default of payment of fine he is
sentenced to suffer simple imprisonment for six
months.
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6. Accused is sentenced to suffer rigorous
imprisonment for 1 year (One year) for offence
punishable under section 506 of I.P.C.
7. All substantive sentences to run concurrently.
8. Accused is in jail since 30-08-2020 till today.
Therefore, period of detention undergone by accused
during investigation, inquiry or trial be set off against
sentence of imprisonment imposed on him as per
Section 428 of Code of Criminal Procedure.
9. Out of fine amount, amount of Rs.15,000/-
(Rs. Fifteen Thousand only) be paid to victim as a
compensation under section 357(1) of Code of
Criminal Procedure and in addition to that the District
Legal Service Authority may decide the quantum of
compensation to be awarded to the victim, under the
victim compensation scheme, set out in section 357(A)
of the Code of Criminal Procedure, 1973 and Rule-7 of
Protection of Children from Sexual Offences Rules.
10. The seized muddemal i.e. clothes of the victim
i.e. T-shirt, pant and panty, clothes of accused i.e. vest,
shirt, pant, underwear, dupatta being worthless be
destroyed as per rules after appeal period is over and in
case of filing appeal as per directions of Hon'ble
Appellate Court.
11. Judgment dictated and declared in open court.
12. Copy of Judgment be given to accused free of
costs."
2. The prosecution's case, as revealed from the Police Report, is
as under:-
a) The Informant was residing on the given address with her
family comprising husband, two daughters and mother-in-law. The
Victim was her elder daughter aged 10 years in August 2020. On
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30.08.2020 when she returned home in the evening, the Victim
informed her that, she was raped by the Appellant in the agricultural
field. The Informant saw the private part of the Victim and found
redness and swelling. She informed her husband. She along with
her husband and Victim went to the Police Station and lodged the
Report against the Appellant and Crime bearing No.345/2020 came
to be registered with the Sevagram Police Station for the offence
punishable under Sections 363, 366-A, 376-AB and 506 of the
Indian Penal Code, 1860 (for short "I.P.C.) and for the offence
punishable under Sections 6, 8, 10 and 12 of the Protection of
Children from Sexual Offences Act, 2012 (for short "POCSO Act").
b) The Victim was sent for medical examination. The statement
of the Victim was recorded. The Appellant came to be arrested. The
Spot-Panchanama was prepared. The clothes of the Victim and that
of the Appellant came to be seized. The Appellant was sent for
medical examination. The statement of witnesses were recorded. On
completion of investigation, the Appellant came to be chargesheeted.
c) The learned trial Court framed the Charge against the
Appellant for the offence punishable under Sections 363, 366-A,
376-AB and 506 of I.P.C. and for the offence punishable under
Sections 4, 6 and 10 of the POCSO Act below Exh.5. The Appellant
pleaded not guilty and claimed to be tried. To prove the Charge, the
prosecution examined the Spot-Panch Ku. Suvidha A. Besekar as
P.W.1, the Victim's mother who lodged the Report as P.W.2, the Victim
as P.W.3, the Police Constable Sagar R. Sangole who carried the
clothes of the accused to the Laboratory as P.W.4, Dr. Manisha A.
Nasare who examined the Victim as P.W.5, Dr. Maniklal S. Raut who
examined the Appellant as P.W.6, Ajaykumar H. Lote, the Registrar of
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Birth and Death in the office of Grampanchayat Warud as P.W.7 and
Priti K. Ade, the Investigating Officer as P.W.8. The relevant
documents were brought on record in the evidence of these
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 is falsely
implicated. 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, learned A.P.P.
for the State and the learned Advocate for the Respondent No.2.
Scrutinized the evidence on record.
a) It is submitted by the learned Advocate for the Appellant that,
the Victim's testimony is contrary to the Report lodged by her
mother. There is no evidence of penetration. No injury was found
on the person of the Victim. There is no final opinion by the Medical
Officer in respect of the sexual assault on the Victim. The evidence
of Panch witness shows that, the clothes were brought from the
Hospital and sealed in the Police Station and, therefore, possibility of
tampering cannot be ruled out. The spot which was next to the
house of the Informant was shown by the Informant, though she was
not an eye-witness to the incident. The Victim was not the witness
of sterling quality. The conviction and sentence be set aside and the
Appeal be allowed.
b) It is submitted by the learned A.P.P. that, the statement of the
Victim under Section 164 of the Cr.P.C. was material. The
prosecution established the Charge by examining the witnesses. No
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interference was called for in the impugned judgment and order and
the Appeal be dismissed.
c) The learned Advocate for the Respondent No.2/Victim
adopted the submissions made by the learned A.P.P. and requested to
dismiss the Appeal.
4. As regards the age of the Victim, the prosecution examined
Ajaykumar H. Lote P.W.7 who was the Registrar in the office of
Warud Grampanchayat. His evidence shows that, pursuant to the
letter from the Police Station, the birth certificate of the Victim was
issued which was at Exh.61. The entries in the birth certificate were
taken from the original birth report of the year 2011. The birth
report was received from Kasturaba Hospital, Sevagram in which the
gender of the child, date of birth, name of the parents and place of
birth were mentioned. As per the birth report, the date of birth of
the Victim was 31.12.2010 and the date of registration was
17.01.2011 vide registration No.285. His evidence shows that, he
came with the original record. Except denial there is nothing in his
cross-examination to create any dent in his evidence. This evidence
shows that, the birth certificate of the Victim brought on record was
based on the original record maintained by the Grampanchayat. The
evidence of Priti K Ade P.W.8 Investigating Officer shows that, during
investigation, she gave the letter below Exh.60 to the
Grampanchayat for getting the birth certificate of the Victim and
Exh.61 was the birth certificate received and it was filed with the
Charge-sheet. The evidence of P.W.2 mother of Victim shows that, the
Victim was born on 31.12.2010. The said date of birth
correspondence to the date of birth mentioned in the birth
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certificate. Though cross-examined on the aspect of date of birth and
age of the Victim, nothing has come to discard the evidence brought
on record by the prosecution to prove that, the Victim was a 'child' at
the relevant time as defined under Section 2(d) of the POCSO Act.
5. It is the prosecution's case that, on the relevant date the
Appellant kidnapped the child and committed penetrative sexual
assault on the Victim in the agricultural field near the Victim's house.
Though P.W.2 mother of the Victim deposed of the penetrative sexual
assault on the Victim by the Appellant, she is not an eye-witness to
the incident. She lodged the Report and set the criminal law in
motion. However, it is strange that, she showed the spot of incident
to the Police, though she was not an eye-witness. Her evidence
shows that, after the Victim narrated the incident to her, she found
redness and swelling on the private part of the Victim. The evidence
of this witness P.W.2 mother of the Victim finds no corroboration by
the evidence of the Victim and the medical evidence.
6. What is seen from the evidence of P.W.2 mother of the Victim
and P.W.3 Victim is that, the Appellant was known to them. The
Appellant was cultivating the adjacent land of the Informant. They
were on visiting terms. The Victim's evidence shows that, on the date
of incident while she was riding the bicycle in the afternoon in the
courtyard of her house, the Appellant came and asked her to come
with her. She did not go. The Appellant tied dupatta on her mouth
and forcibly took her below the tree which was on the boundary of
the agricultural field. The Appellant removed her clothes and
touched his private part to her private part. The Appellant removed
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dupatta from her mouth and asked her to go home. The Appellant
threatened her not to disclose the incident to her mother. Though
her father was in the house she did not disclose the incident to him
feeling that, he would get angry. In the evening her mother came
home and she narrated the incident to her mother and the Report
was lodged. Her evidence shows that, she was sent for medical
examination, her statement was recorded and Articles 'A2', 'A3' and
'A4' were her clothes.
7. The evidence of P.W.5 Manisha A. Nasare shows that, on
31.08.2020 the Victim was brought to the General Hospital, Wardha
for examination. After obtaining the consent of the Victim's mother,
she examined the Victim and found no evidence of injury over the
body. The hymen injury was absent. There were not stains or tears
on the clothes. The clothes of the Victim were seized and sealed and
handed over to the Lady Police Constable Pratiksha, who is not
examined by the prosecution. After medical examination of the
Victim, she opined that, sexual assault/intercourse cannot be ruled
out. The final opinion was kept pending till FSL Reports. It has
come in her cross-examination that, as she did not receive the FSL
Reports of the Victim, final opinion was not given in writing.
However, she deposed that, on the basis of these Reports which
admittedly are not incriminating, the medical examination report
not showing hymen injury, her opinion was that, the sexual assault
cannot be ruled out. The medical evidence is not conclusive. What is
clear from the evidence of this Medical Officer is that, no injury of
any nature was found on the person of the Victim. It is strange that,
though history to this Medical Officer was given that, the Victim was
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made to lie down on the ground after removing her clothes, the
Appellant touched his genitals on the genitals of the Victim, no
injury was found on the back of the Victim, though the spot was the
agricultural field. It is clear that, the medical evidence do not take
the prosecution's case any further.
8. There cannot be any dispute that, the Victim's evidence can
form the basis to record the conviction, provided the same is found
truthful and reliable. As per the Victim and her mother/Informant,
the incident took place in the afternoon in the broad day light in the
agricultural field. The evidence of the Victim's mother shows that,
her husband provided the house to the Appellant which was situated
in the land which was cultivated by the Informant's husband and it
was near their landed property. As per the evidence of P.W. 1 Panch
witness the spot of incident was boundary of the two lands out of
which one land was of the Informant. It is clear from the Spot-
Panchanama below Exh.14 proved in the evidence of P.W.1 Spot
Panch, the spot of incident was near the house of the Informant.
Even the evidence of P.W.2 Informant shows that, their house in the
agricultural land is at Sevagram. The evidence of P.W.2 shows that,
at the time of incident her husband, her mother-in-law and both the
daughters were present in the house. It is confirmed in the
cross-examination of the Victim that, on the day of incident her
father, grand-mother and younger daughter were in the house. This
being the evidence on record, it is highly improbable that, the
Appellant would tie dupatta on the mouth of the Victim and forcibly
take her on the boundary of the agricultural field. It has come in the
cross-examination of the Victim that, she did not raise alarm. The
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spot of incident was not shown by the Victim, it was shown by the
Informant. The evidence of the Victim, therefore, appears
improbable.
9. What the evidence of P.W.2 mother of the Victim shows that,
the Victim narrated that, the Appellant forcibly took her to the
boundary of the agricultural field, removed her clothes, inserted his
private part into her private part due to which blood started oozing
from her private part and the Appellant asked her to go home.
However, said version of the Informant is contrary to the evidence of
the Victim. Even the evidence of Medical Officer do not show that,
history was of penetration. The evidence of P.W.2 mother shows
that, there was no injury on the person of the Victim on the day of
incident and there were blood stains on the undergarment of the
Victim and it was given to the Police. The evidence of P.W.1 Panch
witness shows that, on 31.08.2020 he was called to the Police
Station where the Police staff brought the clothes of the Victim from
the Hospital which were seized in his presence. Likewise, the
clothes of the Appellant were brought by the Police staff from the
Hospital and seized in the Police Station. With this evidence, blood
which was found on Exh.4 underwear of the Appellant and knicker
of the Victim as per C.A. Report below Exh.20 do not rule out the
possibility of tampering with the said Articles. Even if the tampering
aspect is kept aside, result of analysis of blood group is inclusive.
10. The evidence of P.W.6, Dr. Maniklal S. Raut shows that, the
Appellant was medically examined by him on 30.08.2020. The
evidence nowhere shows any injury on the Appellant. The other
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evidence is that of the carrier of the muddemal to the Laboratory
and the Investigating Officer. As discussed above, the prosecution's
evidence is not free from doubt. The Victim's evidence do not
inspire confidence and appears improbable. Version of the Victim
deposed in her evidence is inconsistent to the version narrated to her
mother. The medical evidence completely rules out the penetrative
sexual assault on the Victim. Undisputedly, the substantive evidence
of the Victim nowhere shows the case of penetrative sexual assault.
The evidence available on record do not inspire confidence and is
shrouded with improbabilities. On the basis of the evidence
available on record, it is not possible to maintain the conviction
recorded by the learned trial Court against the Appellant. Failure of
the prosecution to establish the foundational facts of the case in
support of the Charge, there is no question of raising presumption
under Section 29 of the POCSO Act. The Appellant is, thus, entitled
for acquittal. Hence, the following order:-
ORDER
i) The Appeal is allowed.
ii) The conviction of the Appellant for the offence punishable
under Sections 363, 366A, 376-AB and 506 of I.P.C. and for the
offence punishable under Sections 6 and 10 of the POCSO Act is
quashed and set aside.
iii) The Appellant is acquitted for the offence punishable under
Sections 363, 366A, 376-AB and 506 of I.P.C. and for the offence
punishable under Sections 6 and 10 of the POCSO Act.
iv) The Appellant is behind bars. He be released, if not required
in any other offence.
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v) The fine amount, if any, be paid by the Appellant, be refunded
to him.
vi) Muddemal Articles be dealt with as per the operative order of
the impugned judgment.
vii) The fees of the learned Advocate appointed for Respondent
No.2 is quantified at Rs.7,500/-. Same be paid accordingly by the
High Court Legal Services Authority.
viii) Record and proceedings be sent back to the learned trial
Court.
(NEERAJ P. DHOTE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 25/03/2026 13:09:59
