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Bombay High Court

Bhanudas Ganpati Natkar vs The State Of Maharashtra And Another on 5 May, 2026

2026:BHC-AUG:20016


                                                    {1}            CR APPEAL 220 OF 2026 F


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                   CRIMINAL APPEAL NO. 220 OF 2026

                 .     Bhanudas Ganpati Natkar
                       Age: 57 years, Occu.: Labour,
                       R/o. : Aasangaon, Tq.Partur,
                       District Jalna. (At present in Jail)   ..Appellant
                                Versus
                 1.    The State of Maharashtra
                       Through Police Inspector,
                       Police Station Ashti, Tq.Partur,
                       District Jalna.

                 2.    X.Y.Z.                                 ..Respondents
                                                  .....
                 Advocate for Appellant : Mr. Sunil P. Koli
                 APP for Respondent no.1 : Mr.V.M.Jaware
                 Advocate for Respondent no.2 : Ms.Neha Udawant h/f.
                                                  Mr.S.J. Salunke
                                                 .....
                                     CORAM : ABHAY S. WAGHWASE, J.

                                         RESERVED ON   : 29 APRIL, 2026
                                         PRONOUNCED ON : 05 MAY, 2026
                 JUDGMENT :

1. Convict (original accused no.2) for offence under Sections

376(3), 506 (Part-I) of the Indian Penal Code (IPC) and under

Sections 4 and 12 of the Protection of Children from Sexual Offences

Act (POCSO Act), hereby challenges judgment and order dated

16-10-2024 passed by learned Special Judge, Jalna in Special Case

No.210 of 2023.

                                   {2}              CR APPEAL 220 OF 2026 F


                 CASE OF PROSECUTION IN BRIEF

2. In short, case of prosecution is that, victim, daughter of

informant, aged 13 years, who was studying in 8 th Standard, was

taken initially by accused no.2 to house of accused no.1 where after

closing the door, accused no.1 had sexual intercourse with her.

After some time on the same day, accused no.2 i.e. present

appellant also visited house of the victim and he, by issuing threats,

forced victim to come to water filter room and there, after disrobing

her, he too had sexual intercourse with victim.

At around 05:00 p.m., victim reported her father on phone,

who reached home and thereafter, he took victim to Police Station

and law was set into motion resulting into registration of crime

bearing No.220 of 2023 for offence under Sections 376, 376(1),

376DA, 354 of the IPC and under Sections 4, 6, 8 and 12 of the

POCSO Act.

PW7 Bhagwat Kadam, PSI, who was entrusted with

investigation, carried out the same and on completion of

investigation, chargesheeted both accused, who were tried vide

Special Case No.210 of 2023, during which prosecution has adduced

evidence of in all seven witnesses, which was duly appreciated and

analyzed by the learned trial Court alongwith documentary evidence {3} CR APPEAL 220 OF 2026 F

and by judgment and order dated 16-10-2024, both accused came to

be convicted for charges under Sections 376(3) and 506 (Part-I) of

the IPC and under Sections 4 and 12 of the POCSO Act.

Feeling aggrieved by this judgment and order of conviction,

appellant/original accused no.2 has preferred instant appeal on

various grounds raised in appeal memo.

SUBMISSIONS

On behalf of appellant :

3. Learned counsel for appellant/original accused no.2 would

submit that there is false implication. According to him, there is no

convincing evidence on the point of age of victim. He also questions

the veracity of testimony of victim by pointing out that, there was no

convincing evidence about victim been taken to water filter room and

then ravished. He submitted that, allegations are of gagging, taking

and dragging the victim to the spot, but the article used for gagging

is not recovered and moreover, there are no injuries on the person of

victim in spite of claiming to be dragged.

4. Learned counsel took this Court through testimony of PW1

informant father and would submit that, he has mere hearsay {4} CR APPEAL 220 OF 2026 F

information. That, there was political rivalry in the village and in

such backdrop, he falsely implicated the accused. It is further

submitted that, there is no convincing independent evidence on the

point of occurrence and moreover, there is no supportive or

corroborative medical evidence. On this count, he took this Court

through evidence of PW6 Dr.Vaishali Pandit, Medical Officer at

exh.53 and more particularly, answer given in cross-examination that

'no final opinion has been rendered'. Thus, according to him, there is

no convincing, conclusive proof of sexual assault.

5. He next submitted that, statement of victim before the Court is

contrary to her statement under Section 164 of the Code of Criminal

Procedure and therefore, she cannot be said to be a witness of

sterling quality. According to him, when foundational facts of the

case are not proved, it was not open for learned trial Court to invoke

presumption under Section 29 of the POCSO Act. Therefore, by

seeking reliance on the following judgments, he prays for

interference at the hands of this Court by allowing the appeal.

(a) Judgment of Hon'ble Apex Court in the case of Mohan Ambadas Meshram v. State of Maharashtra, through Police Station, Chandrapur, 2018 SCC OnLine Bom 1436.

(b) Judgment of Hon'ble Apex Court in the case of Kali Ram v.

{5} CR APPEAL 220 OF 2026 F

State of Himachal Pradesh, (1973) 2 SCC 808.

(c) Judgment of this Court in case of Gautam Chandrakant Khairnar v. State of Maharashtra, (2022) ALLMR(Cri) 2585.

(d) Judgment of this Court in case of Balu v. State of Maharashtra, (2023) 2 BomCR (Cri.) 835.

On behalf of Respondent no.1/State and Respondent no.2/Victim :

6. In contrast, learned APP for respondent no.1 as well as

learned counsel for respondent no.2/victim both supported the

judgment of conviction. They pointed out that, there is conclusive

proof about victim to be a 'minor' as her birth certificate is on record.

Secondly, as regards to occurrence is concerned, they both submit

that testimony of prosecutrix itself is inspiring confidence and the

same was relied by the learned trial Court.

7. It is further pointed out that, there are witnesses, who had

seen victim and accused no.2 proceedings to and returning from spot

of incidence and as such, it is their submission that there is

corroboration to the evidence of victim.

8. It is pointed out that, here, there was examination of victim by

Medical Officer and merely because no final opinion has been

rendered, it is their submission that sole testimony of victim can {6} CR APPEAL 220 OF 2026 F

safely be relied here and that was correctly done by learned trial

Court by accepting case of prosecution. For all above reasons, for

want of merits, it is prayed that appeal be dismissed.

BRIEF ACCOUNT OF EVIDENCE IN TRIAL COURT

9. PW1 who is father of victim, at exh.47 gave evidence that,

victim, his eldest daughter is 13 years of age and studying in 8 th

Standard. That, on 23-07-2023, while he was at Parbhani, he

received a phone call from his victim daughter asking his

whereabouts and suggesting to come home soon. Accordingly, he

reached home at 6:00 p.m. and there his wife told him the incident

that both accused had wrong relations with victim and then he took

victim to Police Station and lodged complaint, which he identified as

exh.P-1 and his statement under Section 164 is at exh.P-2.

While under cross-examination omissions are brought in his

complaint to the extent that victim was alone at home while second

daughter was playing outside; about victim to be crying when he

came; that, he telephoned his wife and asked about her whereabouts;

that, wife told him about the incident that both accused had wrong

relations with the victim; that, when he asked victim, she did not tell {7} CR APPEAL 220 OF 2026 F

him anything as she was scared of him.

In further cross-examination, he denied his daughter having

cell phone; Gram Panchayat elections were held few days prior to the

incident and he admitted that, he had started construction of his

house at the time of incident. Rest is all denial except that Panchayat

Samiti had taken bore well and denied that there was quarrel with

son of accused no.2 on such count.

10. PW2 victim deposed at exh.48 about she studying in 8 th

Standard. That, incident took place on 23-07-2023 while she to be

alone at home and her mother and grandmother had gone to field,

while her sister was playing outside the house. According to her, at

around 04:00 p.m. accused persons came, accused no.2 gagged her

mouth, tied her legs and dragged her to a nearby house. That, they

had taken her to a room, which was to the rear side of house. That,

accused no.2 latched the door from outside and kept waiting outside

while accused no.1 got undressed her and he penetrated his

urinating organ in her urinating organ. That, somebody peeped from

window and as the door from backside was open, she ran. She stated

that, accused also gave her Rs.200/- but she refused. That, he

threatened her of consequences, if she does not accept the money {8} CR APPEAL 220 OF 2026 F

and further threatened to not to disclose incident to parents or else

he would kill her. That, when she went into front room, she saw a

gap to the door and so she managed to push the door and came out

of the house.

11. It has further come in her testimony that, when she went

home, accused no.2 came and told her that he has seen everything

and if she does not go to the water filter, he would inform everything

to her father and so she went with the pot to the water filter. That,

there, accused no.2 asked her to take water from inside the water

filter shed and when she went inside, he latched the door, came near

her, removed her clothes of which she gave description and that,

accused also removed his pant and inserted his urinating organ in her

urinating organ. She also deposed that granddaughter of accused

Kharat also came there, but she was driven away. That, after the

incident, she wore the clothes and went out of the water filter shed

and came back to the house. After reaching home, she went to

neighbour's house, and took neighbour's cell phone and called her

father who came home and took her to the Police Station.

While under cross-examination at the hands of accused no.2,

she answered that in statement before the Court, she has stated that {9} CR APPEAL 220 OF 2026 F

her mother and grandmother had gone to field and father had been

to Parbhani. She is unable to state whether land of Samarth Ramdas

Swami Trust to be adjoining to their land and she denied that there

was any quarrel between her father and accused no.2 but she

admitted that accused no.1 is from her brotherhood. In paragraph

18, she admitted that accused no.2 live in slum area, she knew him

by face, the water filter to be having tin shade and it to be near the

school and cards been given to swipe and get water. She admitted

there to be temples near the shed. In paragraph 19, she flatly denied

that she told Police whatever was taught by his father. She identified

accused no.2 before the court.

12. PW3 neighbour of informant deposed that on 23-07-2023,

victim had come to their house to use cellphone to make call to her

father and she heard victim telling her father to come immediately

and she to be in frightened condition. Witness deposed that victim

told her that Balu Tailor had taken her to his room, removed her

clothes, and touched his urinating organ to her urinating organ, she

also told that Bhanu had told her that he had seen what Balu had

done with her and he wanted to do the same and they both are from

her village.

{10} CR APPEAL 220 OF 2026 F

Nothing adverse is brought in her cross-examination by learned

counsel for accused no.2 except that in her entire statement, name of

Bhanudas in not written.

13. PW4 who is resident of same vicinity deposed that, while this

witness was proceeding towards the wire fencing near the water

filter shed for drying clothes on the fencing wire, this witness saw

victim coming out of the shed of the water filter and also saw

Bhanudas coming out of the shed and this witness asking him

whether there was no water to the tap outside the shed and he

replying it to be not working. This witness stated about not noticing

anything.

In cross-examination witness admitted about using spectacles

for reading but was not wearing it when witness saw victim.

14. PW5 Solanke is pancha to spot panchanama exh.P-1/P-5 and

pancha to panchanama of seizure of clothes of accused persons as

well as victim.

15. PW6 Dr.Vaishali Pandit is the Medical Officer, who deposed that

on 24-07-2023 while on duty, she examined victim, who was brought {11} CR APPEAL 220 OF 2026 F

by her mother and noting history that both accused attempted

forcible sexual intercourse by giving verbal threats. That, she did not

find any injury marks on the body. She noticed that her hymen

opening to be small and therefore, could not take vaginal swab. She

deposed about suggesting X-Ray for ossification test.

While under cross-examination she admitted that she had not

mentioned findings in clause no.22 and not given final opinion till

date.

16. PW7 Bhagwat Kadam is the Investigating Officer, who testified

about steps taken by him during investigation till filing chargeshseet.

ANALYSIS

17. Here, though two accused were chargesheeted on above

charge, only accused no.2 Bhanudas has preferred instant appeal as

he is held guilty for offence under Sections 376(3) and 506 (Part-I)

of the IPC and under Sections 4 and 12 of the POCSO Act.

18. Prosecution case precisely is that, accused no.2 initially had

gagged mouth and dragged victim to house of accused no.1 and in

the room to the rear-side of house, accused no.1 had penetrative {12} CR APPEAL 220 OF 2026 F

sexual intercourse with her. While act at the instance of accused no.1

was in progress, it is the case of prosecution that, accused no.2/

present appellant Bhanudas initially kept watch outside the door, but

later on peeped through the window and after the victim went home,

in the afternoon, he visited her house and informed her about what

he saw and further threatened her to allow him to do the same and

summoned her to the water filter shed and there, after undressing

her, he penetrated his male organ in her female organ.

19. In the backdrop of above prosecution story, obviously evidence

of victim being crucial needs to be appreciated.

20. Though there is no serious challenge to the minority of the

victim, it is bounden duty of prosecution as well as Court to ascertain

whether victim is proved to be a 'minor' below 18 years of age.

PW1 Father of victim at exh.47 gave age of his daughter as 14

years and she to be studying in 8th standard. PW2 Victim in her

evidence at exh.48 also deposed about studying in 8 th Standard.

Here, there is birth certificate of victim gathered by PW7

Investigating Officer and it is at exh.68. Apparently, such certificate

is issued by Gram Panchayat and is in the format prescribed by the {13} CR APPEAL 220 OF 2026 F

Health Department, Government of Maharashtra. In said certificate,

date of birth of victim is noted as 26-04-2010. Consequently, though

from father and victim, learned APP has not elicited date of birth, in

the light of availability of exh.68, there is no hesitation in holding

that on the date of incident, victim was a 'minor'.

21. Having put issue of minority to rest, it is to be further seen

whether offence under Sections 376, 506 (Part-I) and under Sections

4 and 12 of the POCSO Act is at all made out against present

appellant.

On this issue, one has to again fall back on the testimony of

PW2 victim and her testimony is already reproduced in aforesaid

paragraph nos.8 and 9.

22. Now, here, appeal being only by accused no.2 Bhanudas, only

testimony related to him is required to be re-appreciated.

Thereupon, it is emerging that, as regards to present appellant is

concerned, role attributed to him is that, he initially gagged victim

and dragged her to the house of accused no.1 and while accused no.1

was in the house i.e. in the rear room and committing sexual assault

on victim, this accused no.2 has allegedly closed the door, latched it

and kept watch and he also seems to have peeped through the {14} CR APPEAL 220 OF 2026 F

window and when victim went home, she speaks of accused no.2

coming to her house and initially telling her about seeing what

accused no.1 did to her and threatened her to come to the water

filter shed and when she came with the vessel, she deposed that, he

closed the door of shed, pulled down the pant worn by victim and

allegedly inserted his urinating organ in her urinating organ. Her

such testimony has remained intact in spite of facing lengthy cross-

examination. She has even given description of clothes on her person

at such time. Infact, there is no serious challenge to the above

testimony in the cross-examination.

23. Here, there is testimony of PW3 immediate neighbour lending

support to the testimony of victim as this witness had occasion to

lend her phone to victim to enable her to call her father. PW1 father

has also deposed about receiving a phone call from victim while he

was at Parbhani. This witness has also stated about hearing from

victim about accused no.1 taking victim to his room, removing her

pant, nicker and touching her urinating organ by his urinating organ

and about accused no.2 also doing the same with her. In the

considered opinion of this court, victim, shortly after the incident,

had approached this witness and after narrating her the incident, she {15} CR APPEAL 220 OF 2026 F

also called up her father. Considering the same, doctrine of res

gestae can be invoked as she has learnt about the events immediately

after it was over. Victim had made statement which is

contemporaneous with the events and as such the same can definitely

be taken aid of.

24. As regards to objection and ground raised in this appeal that

there is no final medical opinion, law is fairly settled that when

testimony of victim inspires confidence, there is no need for

corroboration from medical expert, which is mere expert's opinion.

Moreover, PW6 Medical Officer had stated about victim being

brought for examination and noting the history. The Hon'ble Apex

Court in the case of Dola @ Dolagobinda Pradhan and Another v.

State of Odisha, (2018) 18 SCC 695, has enumerated and

summarized the principles as to when sole testimony of prosecutrix

can be relied for convicting accused. In paragraph 6, the Hon'ble

Apex Court has observed as "It is well-settled that version of

prosecutrix is believed, basic truth in her evidence is ascertainable

and if it is found to be credible and consistent, the same would form

the basis of conviction. Corroboration is not a sine qua non for

conviction in rape case. The evidence of victim of sexual assault {16} CR APPEAL 220 OF 2026 F

stands on par with the evidence of an injured witness and is entitled

to great weight, absence of corroboration notwithstanding. If the

evidence of the victim does not suffer from any basic infirmity and

the "probabilities factor" does not render it unworthy of credence, as

a general rule, there is no reason to insist for corroboration."

Law to such extent is reiterated in numerous judgment

including Judgment of Hon'ble Apex Court in the case of State of

Himachal Pradesh v. Manga Singh (2019) 16 SCC 759 and the

relevant paragraph for ready reference is borrowed and quoted

hereunder :

"10. The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law, but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.

11. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basis infirmity and the "probabilities factor" does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the {17} CR APPEAL 220 OF 2026 F

conviction, if it inspires the confidence of the court."

25. Learned counsel for appellant has placed reliance on judgment

of the Hon'ble Apex Court in the case of Mohan Ambadas Meshram

(supra) on the point of difficulty in accepting the case of prosecution

when foundational facts are not proved. On the same point, reliance

is placed on the decision of this Court in the case Balu (supra) as

well as judgment of this Court in the case of Gautam Chandrakant

Khairnar (supra). Though learned counsel would submit that, here,

prosecution failed to establish foundational facts, on Court query, he

failed to demonstrate how foundational facts are not proved. On the

contrary, there is sufficient support to the evidence of victim by the

testimony of PW3 immediate neighbour, who was party to

conversation between victim and her father on telephone owned by