[Cites 10, Cited by 0]
Bombay High Court
Lalu @ Sanju Bhisan Sonawane vs The State Of Maharashtra And Another on 25 March, 2026
2026:BHC-AUG:12598
CriAppeal-478-2023
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 478 OF 2023
Lalu @ Sanju Bhisan Sonawane
Age : 24 years, Occu : Agril.
R/o Shafepur, Pishor, Taluka Kannad,
District Aurangabad.
(Appellant in jail) ... Appellant
Versus
1. The State of Maharashtra,
Through : Police Inspector,
Pishor Police Station,
Taluka : Kannad, District Aurangabad.
2. XYZ ... Respondents
.....
Mr. Sopan G. Bobde, Advocate for the Appellant
Mr. N. S. Tekale, APP for Respondent No.1-State
Mr. Kiran P. Rathod, Advocate for Respondent No.2 (appointed)
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 23.03.2026
Pronounced on : 25.03.2026
JUDGMENT :
1. Convict for offence under Sections 363, 376(2)(n) of IPC and
Sections 4(2) and 6 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act), hereby takes exception to the
judgment and order passed by learned Special Judge (POCSO),
Aurangabad dated 27.04.2023 in Special Case (POCSO) No. 185 of
2020.
CriAppeal-478-2023
2. In brief, prosecution case is that, on 25.03.2020, daughter of
informant PW2 had carried lunch for him while he was working in the
field. After handing over the lunch box, she left the field to go home,
but she had not reached home and therefore, he lodged complaint
against unknown person for offence of kidnapping. On the next day,
his daughter was brought by police from house of sister of accused
and thereafter, crime was registered by Pishor Police Station bearing
No. 68 of 2020 for above offences. Investigation culminated into filing
chargesheet and trial was conducted by above said court who, after
appreciating oral and documentary evidence, convicted the appellant,
who now challenges the above judgment and order of conviction.
SUBMISSIONS
On behalf of appellant :
3. Learned counsel for the appellant would point out that, at the
threshold, prosecution had failed to prove that victim was minor. He
took this court through the evidence of complainant and more
particularly, her cross, and would point out that, she had admitted
that on 25.03.2020, she was of 18 years of age. That, her marriage
was also performed and therefore according to him, she was not
minor.
CriAppeal-478-2023
4. He further submitted that, admittedly FIR was against unknown
person. That, there was no witness seeing accused taking the girl.
Therefore, according to him, chargesheeting accused and further
holding him guilty is a mistake by prosecution.
5. He further took this court through the evidence of father and
more particularly his cross, and would point out that, father has
admitted that he has not handed over birth certificate or extract to the
police and therefore, in absence of cogent and convincing evidence
about age, it is his submission that, learned trial court ought not to
have invoked provisions of the POCSO Act.
6. On the point of sexual assault and rape, he took this court
through the evidence of doctor PW5, more particularly the answer
given while facing cross, and would submit that doctor has admitted
that she could not firmly state whether there was sexual activity and
as such, he questions the finding and conclusion of rape recorded by
learned trial court.
7. Lastly he criticized the prosecution case on the ground that
here, Investigating Officer (IO) has not been examined and according
to him, it was fatal for prosecution. He emphasized that, because of
CriAppeal-478-2023
non examination of IO, defence lost the opportunity to bring material
omissions and contradictions and as such, serious prejudice has been
caused to the accused.
For all above reasons, he urges to allow the appeal by setting
the impugned judgment of conviction.
On behalf of the State as well as the victim :
8. Learned APP for State as well as learned counsel appointed for
respondent-complainant, both would support and justify the order of
conviction, and for want of merits, prayed to dismiss the appeal.
BRIEF ACCOUNT OF EVIDENCE ON RECORD
9. It seems that, in order to establish its case, prosecution has
examined as many as five witnesses. Their role and status as well as
the sum and substance of their evidence can be summarized as
under :
10. PW1 victim, who is examined at Exhibit 21, while in witness
box, gave her age as 16 years and about she having studied up to 7 th
standard. According to her, incident took place three years back, that
CriAppeal-478-2023
was in the day of Gudi Padwa (new year as per Marathi Calender).
That, she went along with her siblings to supply lunch to her father at
field. While her siblings were playing, around 4.00 p.m. she was
about to return home, but according to her, at that time accused
present in the court, caught her, pulled her, gagged her, took her
towards Kolambi river towards a shed and in the evening, after
shutting the door, he had sexual intercourse with her three to four
times that night. In the morning he took her to his sister's place where
police reached and she was accordingly brought and she claims to
have narrated the incident to police who referred her for medical
examination.
11. PW2 father gave evidence that occurrence is of 25.03.2020.
Around 2.00 p.m., his children and victim came with his lunch. While
his other daughters were playing and he was watering the field, his
daughter left saying that she has to go home as it was festival. That
time, his daughter's age was 13 to 14 years. After half an hour when
he inquired with his wife over phone whether daughter has reached
home, it was informed that she has not reached and therefore, after
conducting search, he lodged complaint of kidnapping. That, sister of
accused informed police about arrival of his daughter and accused
and he accompanied police to bring her at village Naigaon and on
CriAppeal-478-2023
inquiry, he claims that his daughter informed that while she was
returning home from the field, accused gagged her, threatened to kill
her and took her to his field and had physical relations with her three
to four times and thereafter took her to his sister's place.
12. PW3 is the headmistress of Z.P. Primary School and according
to her, she carried entire original record maintained by the school on
the basis of which she deposed that, victim was admitted in their
school in first standard on 21.06.2012. Guardian of the victim had
entered her name in the admission record. According to this witness,
date of birth of the victim was 24.01.2005 and she placed on record
applications Exhibits 31 and 32 as well as extract Exhibit 33.
13. PW4 is the pancha to spot panchanama, i.e. spot shown by
accused at Exhibit 35.
14. PW5 is the medical expert, who deposed about obtaining
consent, conducting medical examination, noting the history where
she gave her age as 15 years and about sexual assault by accused on
the night of 25.03.2020. According to her, there were no signs of use
of force and she reserved final opinion pending FSL report, but
narrated that intercourse cannot be ruled out.
CriAppeal-478-2023
ANALYSIS AND CONCLUSION
15. Learned trial Judge has convicted appellant for offence under
Sections 363, 376(2)(n) of IPC and Sections 4(2) and 6 of POCSO
Act.
16. The fundamental grounds of challenge which are emerging
from the submissions advanced before this Court are that, firstly,
prosecution's failure to prove victim to be minor, secondly, medical
evidence not supporting offence of rape or sexual assault, thirdly, no
independent witness to corroborate testimony of victim and lastly,
failure of prosecution to examine the IO thereby causing prejudice to
the accused.
17. On above lines, evidence on record is re-appreciated and re-
analyzed. In view of the charge of POCSO along with IPC, indeed it is
mandatory and obligatory on the part of prosecution to first establish
that victim was a minor, and more particularly when there is
challenge to the very issue by defence.
18. Here, there is evidence of victim, her father and Headmistress.
On meticulous study of evidence of victim PW1 victim, it is noticed
CriAppeal-478-2023
that before the court while giving testimony, she has given her age as
16 years and she has stated that she has studied up to 7 th standard. As
pointed out by learned counsel for the appellant, she has not stated
her exact date of birth. In cross para 4, she seems to have admitted
that on 25.03.2020 she was above 18 years of age. Learned trial court
seems to have noted during recording of evidence itself that, prior to
recording above answer, court had explained the witness that in title
clause she has given her age as 16 years and as such, how she could
be more than 18 years in the year 2020, but still witness stated that
she was 18 years of age in the year 2020.
19. The next piece of evidence is father of complainant who has
also unfortunately not given date of birth of his daughter and he has
only narrated about offence of kidnapping and rape with his daughter
on 25.03.2020. He merely stated that at that time, his daughter was
13 to 14 years of age. While facing cross, he seems to have admitted
that till date he has not given birth extract to police.
20. The third witness on the point of age is PW3 who is examined
at Exhibit 30, and who in the capacity of Headmistress of Z.P. Primary
School, Shafepur, initially narrated about procedure of admission and
in para 2 testified that victim was student of their school and her
CriAppeal-478-2023
original record of admission was brought in the court. On going
through the same, she deposed that victim was admitted in their
school in 1st standard on 21.06.2012. She further deposed that the
girl's guardian had tendered admission application. On the basis of
record she deposed that date of birth of victim is 24.01.2005 and she
has placed on record attested copy of application form Exhibits 31
and 32 as well as admission register extract Exhibit 33.
21. Above witness has faced cross wherein she admitted that
students are admitted in the 1st standard after attending 6 years of
age. She admitted that application form of the victim does not bear
the signatures of parents as well as student. She admitted that, even
request application does not bear their signatures and that thumb
impression over it is not attested by anyone. She answered that, at the
time of admission, she was not the headmistress or class teacher.
22. Above is the evidence on the point of age of victim. Admittedly,
age of the victim at the time of evidence, as narrated by her, was 16
years. Neither she nor her father PW2 has narrated her date of birth.
But it is to be borne in mind that, father is illiterate and admittedly
admission in the school seems to have been taken by grandmother in
the capacity of guardian. It is also true that in cross, victim has
CriAppeal-478-2023
admitted that on 25.03.2020, she was above 18 years of age.
However, here, PW3 headmistress, who is an independent witness
and who has carried original record showing admission of the victim
in 1st standard in their school on 21.06.2012, has also reproduced the
date of birth reflected in the school admission register as 24.01.2005.
Therefore, merely because father failed to narrate the date of birth, he
being illiterate, and though victim herself admitted, that too in cross,
that she was above 18 years of age at the time of incident, the
testimony of PW3 cannot be discarded or brushed aside. Going by the
testimony of PW3, there is no reason to disbelieve the date of birth of
victim to be 24.01.2005. Going by such date of birth, and taking into
account the date of occurrence i.e. 25.03.2020, victim was around 15
years of age. Father also, in his chief has stated that his daughter at
that time was 13 to 14 years of age. Hence, there is evidence on
behalf of prosecution suggesting victim to be minor at the time of
incident. Consequently, no fault can be found in the findings and
conclusion recorded by trial court that victim was a minor and
prosecution having discharged its burden of proving the same.
23. The another ground of challenge in this appeal is that, offence
of rape or sexual assault has not been proved. Reliance is placed on
the testimony of doctor PW5.
CriAppeal-478-2023
24. Here, victim in her substantive evidence has narrated that,
around 4.00 p.m. while she was returning home, she was intercepted
by accused, who she claims to have caught her and pulled her by
pressing her mouth as a result of which, she claims that, she could not
raise hue and cry. He took her to a shed and there he allegedly had
sexual intercourse with her three to four times during night. On
visiting her cross, there is mere suggestion that no such occurrence
has taken place. Admittedly, father has hearsay information. PW5, a
medical expert who deposed at Exhibit 36, has recorded the history
wherein victim narrated about visit to her field to carry tiffin to her
father and there, according to medical expert, it was reported that
assailant met her on the way and asked her to come to other farm and
that night he asked her to remove the clothes and when she denied,
he removed her clothes and had sexual intercourse with her. Though
there is slight variance in the story of victim and that of the history
reported to the medical expert at later point of time, core of the
accusation about taking her to the shed and having sexual intercourse
multiple times has remained undisturbed. In fact, to the medical
expert it was reported that after asking her to remove clothes, victim
had denied and thereafter accused himself had disrobed her. As
regards to evidence of this witness that there were no signs of use of
fresh and there was no fresh hymenal tear, apparently examination is
CriAppeal-478-2023
done on 27.03.2020 i.e. two days after the fateful night. Therefore,
there may not be evidence of fresh tear. Even if forensic or scientific
evidence is not supporting prosecution, in cases of such nature, when
sole testimony of victim inspires confidence, there is no need for
further corroboration from any other corner and law is fairly settled
to that extent. Moreover, when the girl is proved to be a minor, even
if she is consenting party, her said consent is irrelevant. As stated
above, victim in her cross has denied that she had consumed any
medicine prior to the incident. Such suggestion itself shows that
occurrence is not seriously disputed. Rather, in the chief, she has
identified accused in the Court and she has also named him. There is
nothing suggesting false implication. For above reasons, even offence
of rape, and she being minor, provisions of Sections 4(2) and 6 of
POCSO rightly get gravitated.
25. One more ground is pressed by learned counsel before this
Court, i.e. failure of prosecution to examine the Investigating Officer.
It is submitted that, defence is deprived of opportunity to bring on
record material omissions, contradictions and variances.
26. In the light of above, in the considered opinion of this Court, it
is fairly settled position that non-examination of Investigating Officer
CriAppeal-478-2023
in criminal cases is of considerable significance and it may undermine
principle of fair trial as defence is deprived of opportunity to cross-
examine the Investigating Officer on material biases, findings or
omissions. However, it is also fairly settled position that, mere non-
examination of Investigating Officer would not be fatal to the
prosecution if there were no material contradictions in the testimony
of witnesses. Law to this extent is dealt in the cases of S. K. Rashid
and others v. State of Bihar MANU/BH/0173/1986, Bahadur Naik v.
State of Bihar (2000) 9 SCC 153, Ambika Prasad and another v. State
(Delhi Administration) AIR 2000 SC 718, Arvind Sing v. State of
Bihar (2001) 6 SCC 407, Lahu Kamlakar Patil v. State of Maharashtra
(2013) 6 SCC 417 and the recent case of Munnalal v. State of Uttar
Pradesh 2023 LiveLaw (SC) 60; (2023) SCC OnLine SC 80.
Though it is open for defence to set up a plea of prejudice, it is
further expected of defence to demonstrate what were the prejudices
caused and more particularly, what were the material omissions and
contradictions which were to be brought on record by cross-
examining the Investigating Officer. Here, there is not a single
contradiction or omission in the cross of any of the prosecution
witnesses to which attention of this Court is invited and therefore,
mere submissions that prejudice has been caused to the defence,
CriAppeal-478-2023
holds no substance. On the contrary, having gone through the
evidence of victim, the same inspires confidence. Resultantly, there
being no merits in the appeal, following order is passed :
ORDER
I. The appeal is dismissed.
II. Fees of the learned counsel appointed to represent respondent
no.2 be paid by the High Court Legal Services Sub-Committee,
Aurangabad, as per rules.
[ABHAY S. WAGHWASE, J.]
vre
