[Cites 30, Cited by 0]
Bombay High Court
Markand Haribhau Ukre vs The State Of Mah. Thr. Pso Ps Pauni ... on 6 May, 2026
2026:BHC-NAG:6987-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 261 OF 2023
Markand Haribhau Ukre,
Aged 55 years, Occ. - Labour,
R/o Khairi (Diwan), Post - Asagaon,
Tahsil - Pauni, District Bhandara. .... APPELLANT
VERSUS
1) The State of Maharashtra,
through Police Station Officer,
Police Station, Pauni, Tahsil - Pauni &
District Bhandara.
2) X.Y.Z. (Victim), Crime No. 65/2019,
PSO, PS Pauni, District Bhandara. .... RESPONDENTS
____________________________________________________________________
Mr. Shyam R. Jaiswal, Counsel (appointed) for the petitioner,
Mr. M.J. Khan, Addl.P.P. for respondent No. 1,
Ms. Ayushi Dangre, Counsel (appointed) for respondent No. 2.
____________________________________________________________________
CORAM : URMILA JOSHI-PHALKE & NIVEDITA P. MEHTA, JJ.
DATE OF RESERVING THE JUDGMENT : 29-04-2026
DATE OF PRONOUNCING THE JUDGMENT : 06-05-2026
JUDGMENT :
(PER : NIVEDITA P. MEHTA, J.)
The present appeal is directed against the Judgment and Order
of conviction dated 14.11.2022, passed by the learned Sessions Judge,
Bhandara, in Special Case (POCSO) No. 34 of 2019, whereby the appellant,
Markand Haribhau Ukre, was convicted for offences punishable under
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Sections 376AB and 376(2)(j)(n) of the Indian Penal Code, 1860 (hereinafter
referred to as the 'IPC') as also under Section 6 of the Protection of Children
from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act'),
and was sentenced to suffer Rigorous Imprisonment for Life, meaning
imprisonment for the remainder of his natural life, along with a fine of Rs.
25,000/- under each count, and in default to suffer Simple Imprisonment for
two years. It is directed that both sentences shall run concurrently.
2. The prosecution case, in brief, is summarised as follows:
2.1 The appellant, Markand Haribhau Ukre, is a resident of village
Khairi (Diwan), Tahsil Pauni, District Bhandara. The two victim girls,
PW1(born 29.07.2010) and PW2 (born 24.04.2013) also reside in the same
village. Their parents (PW3 and her husband) are daily wage agricultural
labourers who would leave home early in the morning and return only in the
evening.
2.2 According to the prosecution, during the period from
01.03.2019 to 10.03.2019, the appellant repeatedly sexually assaulted both
victim girls at multiple locations; the Vitthal Rukhmini Mandir in the village,
an agricultural field belonging to one Mahadeo Tighare, and inside the
victims' own house. The appellant would entice the girls by offering them
money (Rs. 1/- at a time), take them on his bicycle to secluded places, and
commit the acts of penetrative sexual assault. He also threatened the girls by
saying, in regional language, that he would kill them if they disclosed the
incidents to anyone.
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2.3 On 09.03.2019, the neighbour PW4, Mamta Bandu
Wadibhasme noticed PW2 running behind the bicycle of the appellant as he
proceeded towards the Mandir and grew suspicious. When she casually
questioned, PW2 disclosed that the appellant was paying her money, taking
her to the temple and field, and committing sexual intercourse with her. PW4,
troubled by this disclosure, informed her friend PW5-Arti Suresh Sonkusre
alias Nimje, a teacher at the Zilla Parishad Primary School, Khairi Diwan.
PW5 suggested informing the girls' mother, but PW4 advised first verifying
the account from the children themselves.
2.4 On 11.03.2019, PW5 called both victim girls to her residence
and, after putting them at ease, separately questioned them. PW2 narrated
that the appellant would take her to the field, remove his and her pants, and
perform sexual intercourse. PW1 similarly disclosed that the appellant was
committing the same acts with her inside the Mandir. Thereafter, PW4 and
PW5 together visited the house of PW3, where, in their presence, PW3
questioned her daughters, who repeated the same disclosures. PW1
additionally stated that even the previous day (10.03.2019), at approximately
12:30 p.m., while her father was asleep inside the house and she was in the
front room watching television, the appellant had committed the same act
with her on the sofa in the front room. She stated that despite her raising
shouts, her father could not hear her. This version finds corroboration from
PW4, who has stated that she saw the appellant sitting inside the house while
the father was sleeping on the floor. It has also come on record through PW3,
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and is consistently stated by PW4, PW5 and PW8, that the father of the victim
girls is mentally slow and of diminished intellectual capacity. Both girls also
complained of pain and inflammation in their private parts.
2.5 PW3 was initially reluctant to lodge a police complaint fearing
social stigma and defamation of her daughters. She first went to the
appellant's house, whereupon the appellant tendered an apology. However,
when the condition of the children worsened and PW6, Sarpanch Smt.
Sushma Suraj Tembhare and PW8, Anganwadi teacher Kunda Manohar
Dhabekar counselled PW3 and gave her courage, she lodged a written
complaint (Exh. 31) with the Police Station, Pauni on 16.03.2019. A First
Information Report (Exh. 32) was registered as Crime No. 65/2019 under
Sections 376AB and 376(2)(j)(n) of the IPC and Sections 4 and 6 of the
POCSO Act.
2.6 During the course of investigation, PW10, API Sudhir Shivnath
Varma visited the spot, prepared a running spot panchnama (Exh. 53) at all
three locations shown by the victim girls, arrested the appellant under arrest
panchnama (Exh. 12), and sent the victim girls as well as the appellant for
medical examination. He also arranged for the recording of statements of the
victim girls before the learned J.M.F.C., Pauni, and obtained birth certificates
of both victim girls from the concerned Gram Panchayats. The seized articles
were sent for chemical analysis to the Regional Forensic Science Laboratory,
Nagpur. After completion of the investigation, charge-sheet was filed. On
09.12.2019, the learned Predecessor Special Judge, Bhandara, framed a
Charge (Exh. 06) against the appellant under Sections 376AB and 376(2)(j)
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(n) of the IPC and under Section 6 read with Section 5(i)(l)(m)(p)(u) of the
POCSO Act.
2.7 When the charge was read over and explained to the appellant
in vernacular, he denied the same, pleaded not guilty, and claimed to be tried.
He claimed that the complaint was falsely lodged against him because the
daughters of PW3 had accidentally knocked over his bicycle, on account of
which he had scolded them. He alleged that, out of vengeance, PW3 falsely
implicated him in this serious crime. He neither examined himself on oath as
a witness nor adduced any defence evidence. To bring home the charge, the
prosecution examined twelve witnesses in all.
3. The learned Sessions Judge, Bhandara, after meticulously
examining the entire evidence on record, convicted the appellant by a
judgment dated 14.11.2022. On the issue of age, the trial Court held that the
birth certificates (Exh. 60 & 61) clearly established that both victim girls were
below the age of twelve years at the time of the incidents, and this was not
seriously disputed by the defence. On the substantive charge, the trial Court
relied extensively on the testimony of the victim girls, PW1 and PW2,
corroborated by PW3, PW4, PW5, PW6, PW8 and the medical evidence of
PW9. The court rejected the defence contention that the delay of about six
days between the last alleged incident (10.03.2019) and the registration of
the FIR (16.03.2019) was fatal to the prosecution case, noting the well-
recognised phenomenon of hesitation in reporting sexual offences against
children due to social stigma and fear of defamation. The trial Court further
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held that the appellant had failed to rebut the presumptions raised under
Sections 29 and 30 of the POCSO Act, and that his defence of false
implication was wholly improbable and unsupported by any independent
evidence. Consequently, the appellant was convicted as aforesaid and
sentenced to life imprisonment (meaning remainder of natural life) along
with fine.
4. Submissions on behalf of the Appellant :
4.1 Shri S. Jaiswal, learned counsel (appointed) for the appellant
submitted that the impugned judgment and order dated 14.11.2022 is wholly
unsustainable in law. He contended that the learned trial Court has failed to
appreciate the evidence on record in its proper perspective and has recorded
findings, which are perverse and contrary to the settled principles governing
criminal jurisprudence.
4.2 He further submitted that the conviction of the appellant is
based solely on the testimonies of the prosecutrixes, which suffer from
material inconsistencies, omissions and improvements. The learned counsel
submits that the evidence of the child witnesses is not of such sterling quality
so as to inspire confidence and form the sole basis of conviction, particularly
in a case involving grave charges entailing life imprisonment.
4.3 The learned counsel further submits that there is an
unexplained and inordinate delay in lodging the First Information Report.
Though the alleged last incident is stated to have occurred on 10.03.2019,
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the complaint came to be lodged only on 16.03.2019. It was contented that
the FIR (Exh. 32) and the complaint (Exh. 31) appear to have been lodged as
an afterthought, after the false concoction of a story, and cannot be relied
upon.
4.4 He also contended that the prosecution has failed to establish
its case beyond reasonable doubt inasmuch as there is no cogent and
convincing corroborative evidence on record. The medical and scientific
evidence does not conclusively support the prosecution story, submitted that
hymenal tears are possible due to other causes such as infections and sports
activities, and therefore cannot be taken as conclusive proof of sexual assault.
4.5 The learned counsel further submits that the prosecution
witnesses, including the mother of the victims, have made material
improvements in their depositions, which go to the root of the matter. It is
urged that the evidence appears to be tutored and lacks spontaneity, thereby
rendering it unsafe to base a conviction of such serious nature.
4.6 He also argued that the learned trial Court has failed to
consider that certain material witnesses, such as husband of PW3, who could
have thrown light on the prosecution case, have not been examined. Such
non-examination has caused serious prejudice to the appellant and creates a
gap in the chain of evidence.
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4.7 The learned Counsel laid emphasis on the fact that the father of
victims was not examined by the prosecution who was allegedly present in
the house at the time of alleged incident as per the testimony of PW1.
4.8 The learned counsel submits that the findings recorded by the
learned trial Court are based on conjectures and surmises rather than on
legally admissible and reliable evidence. It is contended that the prosecution
has failed to prove the guilt of the appellant beyond reasonable doubt, and
therefore, the appellant is entitled to the benefit of doubt.
4.9 On these grounds, the learned counsel for the appellant prays
that the present appeal be allowed, the impugned judgment and order of
conviction be quashed and set aside, and the appellant be acquitted of all the
charges.
5. Submissions on behalf of the State :
5.1 Mr. M. J. Khan, learned Additional Public Prosecutor for
respondent No. 1 / State, vehemently opposed the appeal and supported the
impugned judgment and order of conviction and submitted that the learned
trial Court has properly appreciated the evidence on record and has rightly
convicted the appellant for the offences in question. He contended that the
findings recorded by the learned Sessions Judge are based on cogent, reliable
and legally admissible evidence and do not warrant any interference in the
present appeal.
5.2 The learned Addl.P.P. submitted that the prosecution case is
primarily founded on the consistent and trustworthy testimonies of the minor
9 apeal 261.23.odt
victims. It is urged that in cases of sexual assault, particularly involving
children, the testimonies of the victim girls, if found reliable and credible, are
sufficient to base conviction even in the absence of corroboration. Minor
discrepancies arising from the tender age of the witnesses are inconsequential
and do not affect the core of the prosecution case.
5.3 He further submitted that the alleged delay in lodging the First
Information Report is neither fatal nor unexplained. The learned Addl.P.P.
contends that in cases of sexual offences, especially involving minor children,
some delay in reporting is natural owing to social stigma, trauma and
hesitation on the part of the victim and her family. Such delay, by itself,
cannot be a ground to discard the otherwise reliable prosecution case. In
support of his contentions, he relied upon the following cases:
(i) Lok Mal Alias Loku vs State of Uttar Pradesh, (2025) 4 SCC 470,
(ii) Sirivalla Srinivasa Rao vs State of A.P., AIROnline 2011 SC 536,
(iii) State of Himachal Pradesh vs Prem Singh, (2009) 1 SCC 420.
5.4 The learned Addl.P.P. also submits that the medical and other
supporting evidence on record lends assurance to the prosecution version. He
contended that the absence of strong medical corroboration is not decisive in
cases of sexual assault, particularly when the ocular testimony of the victim is
clear and convincing.
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5.5 As regards non-examination of father of victims is concerned,
the learned Additional Public Prosecutor submits that the testimonies of
crucial witnesses unequivocally demonstrate the diminished intellectual
capacity of the father of the victims and as such his non-examination is in no
way fatal to the prosecution case.
5.6 He further urged that no material contradictions or omissions
have been elicited in the cross-examination of the prosecution witnesses so as
to discredit their testimonies. The defence has failed to bring on record any
circumstance to show false implication of the appellant. On the contrary, the
evidence establishes the guilt of the appellant beyond reasonable doubt.
5.7 The learned Addl.P.P. submits that the learned trial Court has
meticulously analyzed the entire evidence and has recorded well-reasoned
findings. The view taken by the learned trial Court is a plausible and
reasonable view based on the material on record, and therefore, this Court, in
exercise of appellate jurisdiction, ought not to interfere with the same.
5.8 On these grounds, the learned Addl.P.P. prays that the appeal
being devoid of merits deserves to be dismissed and the conviction and
sentence imposed upon the appellant be confirmed.
6. Ms. Ayushi Dangre, learned counsel appointed for respondent
No. 2, adopted the submissions advanced by the learned Addl.P.P. for the
State. She further submitted that the testimonies of the minor victims, being
natural, consistent and trustworthy, are sufficient to sustain conviction even
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in the absence of independent corroboration. In support of her submissions,
she placed reliance on the decision of the Hon'ble Supreme Court in State of
Himachal Pradesh vs. Sanjay Kumar alias Sunny, (2017) 2 SCC 51 .
7. Before proceeding to analyse the rival submissions and arrive at
a conclusion, it is incumbent upon this Court to first evaluate the testimonies
of the prosecution witnesses.
8. PW1 (Victim-C): The elder victim girl deposed in camera that
the appellant, a resident of her village whom she knew, would take her to the
Vitthal Mandir on the pretext of giving money and would commit sexual
intercourse with her. She further stated that on 10.03.2019 at about 12:30
p.m., while her father was sleeping inside the house and she was watching
television in the front room, the appellant again came, sat on the sofa beside
her, removed his and her clothes, asked her to hold his private part, and
committed rape on her. She stated that she had cried out but her father, who
is of slow intellect, could not hear. The appellant threatened her with death if
she told anyone. She deposed that the same acts were committed by the
appellant some 15 times at home and 2 times at the Mandir. She
corroborated PW5's account of the inquiry at her house. In cross-examination,
she firmly denied all the defence suggestions.
9. PW2 (Victim-M): The younger victim girl (recorded without
oath, given her age of about 5 years at the time of recording of evidence)
deposed that the appellant took her to the temple and field, removed her and
12 apeal 261.23.odt
his pants, asked her to move his private part, and then inserted his private
part into hers causing her pain and bleeding. She stated that the incident
occurred twice. In cross-examination, she maintained her version and
categorically denied all contrary suggestions.
10. PW3 Mother and Complainant deposed about the information
received from PW5 on 11.03.2019, the confrontation with the appellant, who
apologized, her initial reluctance to report due to fear of social stigma, and
the eventual filing of the complaint after being encouraged by PW6 and PW8.
She also deposed that her daughters disclosed the incidents to her in the
presence of PW4 and PW5, and that both girls had complained of pain in
their private parts. She identified the complaint (Exh. 31), the FIR (Exh. 32),
and the consent form (Exh. 33). In her cross examination, she stated that her
husband (father of the victims) is mentally slow.
11. PW4 Mamta Bandu Wadibhasme, Neighbour was the first adult
to whom PW2 disclosed the acts. She corroborated the disclosure made by
PW2 on 09.03.2019, the process of verification via PW5, and the subsequent
visit to PW3's house on 11.03.2019. She also corroborated the incident of
10.03.2019 at the victims' house, having observed the appellant sitting inside
on the sofa while the father was sleeping. She deposed that the father of the
victim girls is mentally slow.
12. PW5 Arti Suresh Sonkusre (Nimje), Teacher, corroborated
PW4's account in material detail. She described how she called the victim
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girls to her house on 11.03.2019, individually questioned them, and received
disclosures about the sexual assaults. She further corroborated the visit to
PW3's house in the evening of 11.03.2019, where the girls repeated their
disclosures to their mother. She also stated that she subsequently mobilized
the Sarpanch and the Anganwadi teacher, who accompanied PW3 to the
police station on 16.03.2019. She further stated that the father of the victims
is mentally slow.
13. PW6 Sushma Suraj Tembhare, Sarpanch of Village, was called
to the Anganwadi by PW8 on 16.03.2019. She corroborated the disclosure
made by both victim girls in her presence that the appellant was sexually
assaulting them and that on 10.03.2019 he had done the same inside their
house. She accompanied PW3 to the police station for lodging the complaint.
14. PW7 Dr. Amit Vijaykumar Jaiswal, Medical Officer, Rural
Hospital Pauni examined the appellant on 19.03.2019 on requisition (Exh.
40) of the police. He deposed that the appellant had no abnormality and was
capable of performing sexual intercourse; no definite opinion on actual
sexual assault on his part could be given. His examination certificate is at
Exh. 41.
15. PW8 Kunda Manohar Dhabekar, Anganwadi Teacher, deposed
that she noticed PW2 crying in the Anganwadi on 11.03.2019 and
13.03.2019. On 14.03.2019, after taking the child into confidence, she learnt
that the child was afraid of the appellant and that he had been taking her on
14 apeal 261.23.odt
a cycle to the Mandir and field and committing sexual acts. She then
informed the child's mother and subsequently participated in mobilizing the
community to assist PW3 in lodging a complaint. She also deposed that the
father of the victim is mentally slow.
16. PW9 Dr. Priya Nitin Mukkawar, Gynaecologist, General Hospital
Bhandara examined both victim girls on 16.03.2019 on requisition of the
Investigating Officer (Exh. 54 & 55). She deposed that PW1 had a hymenal
tear at the 1 O'clock position (Exh. 44), which was possible as a result of
penetrative sexual assault. She further deposed that PW2 had hymenal tears
at the 5 and 11 O'clock positions (Exh. 45), also consistent with penetrative
sexual assault. Critically, she opined that for a child of 5 years (PW2),
hymenal tear is not possible merely from sports activities such as ' Lagori'; the
only possibilities are insertion of an external object or a severe accidental
penetrating injury. Both girls complained of painful urination since the time
of the last incident.
17. PW10 API Sudhir Shivnath Varma, Investigating Officer,
deposed about the entire course of investigation; visiting the spots shown by
the victims, preparing the running spot panchnama (Exh. 53), arresting the
appellant, sending the victim girls and the appellant for medical examination,
seizing the clothes of the victims and the appellant (Exh. 47-51), sending
seized articles for chemical analysis (Exh. 56), arranging for the recording of
statements under Section 164 Cr.P.C. (Exh. 58), and securing birth certificates
of the victim girls (Exh. 60 & 61).
15 apeal 261.23.odt
18. PW11 Rahul Gunwant Katekhaye, Panch Witness corroborated
the spot panchnama (Exh. 53) in its entirety, having been present throughout
the panchnama exercise at the Mandir, the victims' house, and the
agricultural field. He stated that photographs Article P-1 to P-5 were taken
while preparing the spot panchnama and he is visible in them.
19. PW12 API Smita Dhanraj Wasnik recorded the statements of
both victim girls at Khairi Diwan on 24.03.2019 and deposed that the
videography recording of the statements was also done. In cross-examination,
she maintained that the statements were recorded faithfully as per the say of
the victims and were not influenced by any other person.
20. Heard learned counsel for the respective parties at length and
perused the material on record.
21. The prosecution has placed on record the birth certificate of
PW1 (Exh. 60) issued by the Gram-Panchayat, Khairi Diwan, and the birth
certificate of PW2 (Exh. 61) issued by the Gram-Panchayat, Kondha. These
documents, issued by official public bodies in the ordinary course of business,
establish beyond any shadow of doubt that PW1 was born on 29.07.2010
(aged approximately 8 years at the time of the incident) and PW2 was born
on 24.04.2013 (aged approximately 5 years at the time of the incident). Both
were, therefore, children below twelve years of age within the meaning of
Section 376AB IPC and the POCSO Act. This fact was never seriously
16 apeal 261.23.odt
contested by the defence at trial and was not assailed in the course of the
arguments before this Court.
22. The case of the prosecution primarily rests on the testimonies of
the prosecutrixes. It is a settled position of law that the evidence of a victim
of sexual assault stands on a higher pedestal and if such evidence is found to
be reliable and trustworthy, it does not require corroboration as a matter of
rule.
23. The prosecutrixes, examined as PW1 and PW2, have in their
substantive evidence clearly stated that the appellant used to take them to a
secluded place on the pretext of offering money and thereafter subjected
them to sexual assault. One of the victims has specifically deposed that on
one occasion when her mother was not home and the father, who is mentally
slow was sleeping inside the house and while she was watching television,
the appellant committed forcible sexual intercourse with her. The depositions
of both the victims are consistent on the core aspect, namely, the identity of
the appellant and the nature of acts committed by him. Their testimonies
inspire confidence and there is no reason to discard the same, on any other
count.
24. It is true that certain omissions and minor inconsistencies have
been brought on record during cross-examination; however, those do not
affect the substratum of the prosecution case. Having regard to the tender
age of the victims, some variations in narration are but natural and do not
render their evidence unreliable. On the contrary, the absence of artificial
17 apeal 261.23.odt
uniformity lends assurance to the truthfulness of their version. In Jagannath
Pandurang Waghare vs. The State of Maharashtra and another, Criminal
Appeal No. 1134 of 2022 , this Court has observed that minor omissions or
discrepancies which do not go to the root of the matter, cannot be treated as
material so as to discard the otherwise reliable testimony of the victim. It has
been further held that minor contradictions, inconsistencies or improvements
on trivial aspects, without affecting the core of the prosecution case, are
liable to be ignored and cannot be made a ground to reject the evidence in its
entirety. The relevant paragraph No. 33 of the said judgment has been
reproduced as under:-
"33. Much emphasis was placed on behalf of the appellant on
such apparent omissions and failure to disclose on the part of
the victim (PW1). We have carefully considered the entire
evidence of the victim (PW1). We do find that there are certain
minor omissions in the evidence of the said witness. But, such
omissions certainly do not qualify to be material omissions or
discrepancies. In the case of Sunil Kumar Sambhudayal Gupta
(Dr.) and others vs. State of Maharashtra (supra), the Supreme
Court has recognized that minor contradictions, inconsistencies,
embellishments or improvements on trivial matters, without
affecting the core of the prosecution case, should not be made a
ground to reject the evidence in its entirety. It was vehemently
submitted on behalf of the appellant that since the act of
removal of clothes and actual act of penetration was not
disclosed by the victim (PW1) in her statement in the said
hospital, on the basis of which FIR was registered, this ought to
be treated as a major omission and that her evidence ought to
be discarded."
25. It is trite law that a conviction for the offence of rape can be
sustained on the sole testimony of the prosecutrix, provided her evidence
inspires confidence and is found to be natural and trustworthy. In Birka Shiva
vs. The State of Telangana, Criminal Appeal arising out of SLP (Crl.) No.
1445 of 2025, the Hon'ble Supreme Court has reiterated that where the
18 apeal 261.23.odt
testimony of the victim is consistent and credible, it can form the sole basis of
conviction; however, if the version is inherently inconsistent or improbable,
the Court may require corroboration. In the present case, on careful scrutiny
of the evidence of the victims, this Court finds that their testimonies are
consistent on material particulars, natural in narration, and free from any
material contradictions which would discredit the core of the prosecution
case. The relevant paragraph no. 18 of the said judgment has been
reproduced as under:
"18. The prosecution has sought conviction of the appellant
under Section 376 IPC, asserting that he had committed forcible
sexual intercourse with the victim. It is trite law that a
conviction for rape can be sustained solely on the testimony of
the prosecutrix/victim, provided that her evidence inspires
confidence in the mind of the Court and appears to be natural
and truthful. However, if the version given by the prosecutrix is
inconsistent, unsupported by any medical evidence, or the
whole surrounding circumstances are highly improbable and
believable in the case set up by the prosecutrix, the Court shall
not act on the solitary evidence of the prosecutrix. [See: State of
Punjab v. Gurmit Singh; Vimal Suresh Kamble v.
Chaluverapinake Apal S.P. ; Sadashiv Ramrao Hadbe v. State of
Maharashtra; Tameezuddin v. State (NCT of Delhi); Narender
Kumar v. State (NCT of Delhi); and Mukesh v. State (NCT of
Delhi)]"
26. The defence also suggested that PW1 was tutored by PW5 and
PW3 to use specific vernacular words to describe the assault and to add
embellishments to make the accusation more grave. This suggestion is devoid
of merit. The disclosure to PW4 occurred first, in a casual setting, when PW4
merely noticed a suspicious pattern of PW-2 following the appellant's bicycle.
The child PW2 spoke up voluntarily and unprompted. The subsequent
19 apeal 261.23.odt
verification by PW5 was a responsible adult act by a teacher who, upon
hearing a disturbing account, sought to ascertain the truth before alarming
parents. It is inconceivable that a teacher and a neighbour, acting within
hours of each other and independently, would coach two children, one aged 8
and one aged 5, to give consistent accounts of penetrative sexual assault at
specific locations, using specific vocabulary, against a specific named adult.
The suggestion of coaching is a flight of conjecture.
27. The evidence of PW3, who is the mother of the victims, assumes
importance. She has deposed that the incident came to her knowledge when
the school teacher informed her about the disclosure made by the children.
Upon inquiry, the victims narrated the acts committed by the appellant. She
has further deposed about confronting the appellant, who admitted his
mistake and sought pardon. This part of the evidence lends significant
corroboration to the version of the victims and also establishes the conduct of
the appellant.
28. The prosecution has also examined independent witnesses
including PW5 and PW6, who have supported the case to the extent of
circumstances surrounding the disclosure and conduct of the victims. Their
evidence, though not direct on the act of assault, lends assurance to the
prosecution story.
29. Insofar as the submission regarding non-mention of specific
dates and times of each incident in the statements recorded under Section
20 apeal 261.23.odt
164 of the Code of Criminal Procedure is concerned, the same does not
impress this Court. The victims in the present case are minor children of
tender age. It would be wholly unrealistic to expect that children of such age
would maintain a mental record of each incident with precision of date and
time, particularly when the acts complained of are repetitive and traumatic in
nature. The law does not require a child victim to chronologically
particularise each act. What is material is the consistent disclosure of a course
of conduct constituting sexual assault. The Hon'ble Supreme Court has time
and again held that in cases of repeated sexual assault, the victim is not
expected to specify each individual act with exactitude. In the present case,
the substratum of the prosecution case remains intact and unaffected.
30. Insofar as the medical evidence is concerned, the same has been
proved through the deposition of PW9, who is a Gynaecologist and had
examined both the victim girls at the General Hospital, Bhandara, on
16.03.2019 pursuant to requisition by the Investigating Officer. The evidence
of PW-9, being that of a specialist in the relevant field, deserves due weight.
31. PW9 has deposed that on examination of the elder victim, a
hymenal tear was noticed at the 1 O'clock position. She has opined that such
a finding is consistent with penetrative sexual assault. Though she has not
ruled out every remote possibility in absolute terms, her evidence clearly
indicates that the nature of injury is compatible with the prosecution case.
21 apeal 261.23.odt
32. In respect of the younger victim, PW9 has noticed hymenal
tears at the 5 and 11 O'clock positions. She has categorically stated that such
findings are consistent with penetrative sexual assault. Significantly, she has
further clarified that in the case of a child of about five years of age, such
injuries are ordinarily attributable either to insertion of an external object or
to a severe penetrating injury. The suggestion put forth on behalf of the
defence that such injuries could occur during routine play activities, such as
'Lagori', has been specifically denied by the medical expert.
33. The attempt on the part of the defence to dilute the evidentiary
value of the medical evidence by pointing out the absence of injuries on the
external genitalia also does not merit acceptance. The Chemical Analyser's
Reports do not detect spermatozoa on the seized articles; however, this by
itself is not decisive. The incidents are alleged to have occurred over a span of
time and there may be various reasons, including absence of ejaculation or
lack of preservation of traces, for such a finding. Similarly, the absence of
visible injuries on the external genitalia cannot be construed as negating the
allegation of penetrative assault. Nay, that by itself cannot negate the
prosecution case. The medical evidence, read as a whole, indicates that
penetration without external injuries is medically possible, particularly in
cases of repeated assault. PW9 has, in her cross-examination, clarified these
aspects and her testimony on this point remains unshaken.
22 apeal 261.23.odt
34. Insofar as the medical and other corroborative evidence is
concerned, it is to be noted that absence of definitive medical evidence is not
fatal when the ocular testimony of the victim is clear, cogent and trustworthy.
The medical evidence on record, though not conclusive by itself, does not
contradict the prosecution case and, to some extent, lends support to the
version of the victims. Thus, the medical evidence not only does not
contradict the prosecution case, but in fact lends assurance to the version of
the victims and corroborates the allegation of penetrative sexual assault.
35. The contention raised on behalf of the appellant regarding
delay in lodging the First Information Report also does not merit acceptance.
In cases involving sexual offences against minor children, delay in reporting
is not uncommon and is often attributable to trauma, fear, social stigma, and
hesitation on the part of family members. A delay in lodging the FIR in cases
of rape and sexual assault does not per se make the prosecution case suspect;
what matters is whether the delay is explained. Here, the explanation is not
only consistent and coherent, but is corroborated by PW4, PW5, PW6, and
PW8, witnesses who have no motive to lie. In the present case, the
explanation that the incident came to light upon disclosure by the children
and was thereafter reported cannot be said to be unnatural or improbable. In
this context, we find merit in the submissions advanced by the learned
Addl.P.P. as well as the learned counsel for respondent No. 2, who have placed
reliance on Lok Mal alias Loku (supra), Sirivalla Srinivasa Rao (supra), Prem
Singh (supra), and Sanjay Kumar alias Sunny (supra) to contend that delay
in reporting sexual offences, particularly involving minor victims, is not fatal
23 apeal 261.23.odt
if the explanation is plausible. We are in respectful agreement with the said
position of law. The delay, therefore, does not dent the prosecution case.
36. The learned counsel for the appellant has also contended that
the father of the victims, who was allegedly present at the relevant time, has
not been examined and, therefore, an adverse inference ought to be drawn
against the prosecution. This submission also cannot be accepted. The
evidence on record, particularly that of PW3 and the surrounding
circumstances, indicates that the father was not a witness capable of giving
reliable testimony. It is a settled principle of law that the prosecution is not
bound to examine each and every witness cited, and non-examination of a
witness is not fatal unless it results in suppression of material evidence. In
Guru Dutt Pathak vs. State of U.P., (2021) 6 SCC 116 , the Hon'ble Supreme
Court has reiterated that mere non-examination of independent or other
witnesses would not be fatal to the prosecution case when there is otherwise
reliable and cogent evidence on record. In the present case, the non-
examination of the father does not create any dent in the prosecution case,
particularly when the evidence of the victims is found to be cogent and
reliable. The relevant paragraph no. 24 are reproduced as under:
"24. One another ground given by the learned trial court while
acquitting the accused was that no independent witness has
been examined. The High Court has rightly observed that where
there is clinching evidence of eyewitnesses, mere non-
examination of some of the witnesses/independent witnesses
and/or in absence of examination of any independent witnesses
would not be fatal to the case of the prosecution.
24 apeal 261.23.odt
24.1. In Manjit Singh v. State of Punjab [Manjit Singh v. State of
Punjab, (2019) 8 SCC 529 : (2019) 3 SCC (Cri) 600] , it is
observed and held by this Court that reliable evidence of injured
eyewitnesses cannot be discarded merely for reason that no
independent witness was examined.
24.2. In the recent decision in Surinder Kumar v. State of Punjab
[Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020)
1 SCC (Cri) 767] , it is observed and held by this Court that
merely because prosecution did not examine any independent
witness, would not necessarily lead to conclusion that the
accused was falsely implicated.
24.3. In Rizwan Khan v. State of Chhattisgarh [Rizwan Khan v.
State of Chhattisgarh, (2020) 9 SCC 627 : (2021) 1 SCC (Cri)
201] , after referring to the decision of this Court in State of H.P.
v. Pardeep Kumar [State of H.P. v. Pardeep Kumar, (2018) 13
SCC 808 : (2019) 1 SCC (Cri) 420] , it is observed and held by
this Court that the examination of the independent witnesses is
not an indispensable requirement and such non-examination is
not necessarily fatal to the prosecution case."
37. Moreover, in this backdrop, it becomes clear that the father
cannot be regarded as an eyewitness to the incident. Though he was
physically present in the house, the evidence on record shows that he was
asleep in the inner room, while PW1 was in the front room watching
television, and was therefore not in a position to perceive what was
happening. His mere presence, in such circumstances, would not render him
a material witness to the occurrence. It has also come in evidence,
consistently through multiple witnesses, that he is of diminished intellectual
capacity, which further explains his inability to react or intervene. In such a
situation, the non-examination of the father cannot be construed as
withholding of any material witness or suppression of material evidence.
25 apeal 261.23.odt
38. The corroborative chain formed by these four independent
witnesses is of exceptional strength. PW4, though states to be related to
mother of victim, nothing substantial to attribute motive to falsely implicate
appellant, is brought in cross examination. PW5 is a school teacher, a
professional person of the community, who verified the disclosure
methodically before communicating it to the mother. Neither PW4 nor PW5
had any prior dispute with the accused. PW6 and PW8 received the disclosure
from both victim girls in a community setting and corroborated PW3's
account of her initial reluctance to report. These four witnesses form an
unimpeachable ring of corroboration around the testimonies of the victims.
39. It is further observed that the defence has not been able to elicit
anything substantial in the cross-examination of the prosecution witnesses so
as to create a reasonable doubt regarding the involvement of the appellant.
No plausible reason for false implication has been brought on record. In cases
of this nature, involving minor children, false implication is highly
improbable in the absence of any demonstrated motive, and cogent material
to suggest otherwise.
40. The Hon'ble Supreme Court time and again has held that the
duty of the appellate court is not to re-write the trial court's judgment, but to
satisfy itself that the trial court has not committed a miscarriage of justice by
either ignoring material evidence or misappreciating it. In the present case,
the learned trial Court has, in our view, meticulously analysed the entire
evidence on record and has recorded well-reasoned findings. The
26 apeal 261.23.odt
appreciation of evidence by the trial Court is neither perverse nor contrary to
the settled principles of law. The conclusions drawn are based on proper
evaluation of the material on record and represent a plausible and justified
view.
41. Upon re-appreciation of the evidence, this Court finds itself in
complete agreement with the findings recorded by the learned Sessions
Judge. The prosecution has succeeded in proving beyond reasonable doubt
that the appellant committed the offences as alleged.
42. In view of the aforesaid discussion, we proceed to pass the following
order:
ORDER
(i) The Criminal Appeal is dismissed.
(ii) The conviction and sentence imposed upon the appellant by the
learned Sessions Judge, Bhandara in Special Case (POCSO) No.
34/2019 by judgment and order dated 14.11.2022 are hereby
confirmed.
(iii) The appellant shall continue to undergo the sentence awarded to him.
(iv) Fees of the learned appointed counsels be quantified and paid as per
rules.
(Nivedita P. Mehta, J.) (Urmila Joshi-Phalke, J.)
sknair
Signed by: Mr. S.K. NAIR
Designation: PS To Honourable Judge
Date: 06/05/2026 16:58:37
