[Cites 36, Cited by 0]
Gujarat High Court
Sanjaybhai Chimanbhai Mucchadiya vs State Of Gujarat on 7 May, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1042 of 2024
With
R/CRIMINAL APPEAL NO. 545 of 2024
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
2 of 2026
In R/CRIMINAL APPEAL NO. 545 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO: Sd/-
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Approved for Reporting Yes
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SANJAYBHAI CHIMANBHAI MUCCHADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1
MR JAY B AMBANI(13896) for the Opponent(s)/Respondent(s) No. 1
MS. C.M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/05/2026
COMMON ORAL JUDGMENT
1. These appeals have been filed by the appellants -
original accused under Section 374 of Code of Criminal
Procedure, 1973 against the judgement and order of
conviction passed by the learned 5 th Additional Sessions
Judge & Special Judge (POCSO), Rajkot at Dhoraji
(hereinafter referred to as "the learned Trial Court") in
Special (POCSO) Case No. 4/2022 on 25.01.2024, whereby,
the learned Trial Court was pleased to convict the
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appellants and sentence the appellants to simple
imprisonment of 1 month and fine of Rs. 1000/- each and
in default, simple imprisonment for 15 days for the offence
punishable under Section 323 read with Section 34 of
Indian Penal Code, 1860, rigorous imprisonment of 3 years
and fine of Rs. 1000/- each and in default, simple
imprisonment for 3 months for the offence punishable
under Section 354A read with Section 34 of Indian Penal
Code, 1860, rigorous imprisonment of 3 years and fine of
Rs. 20,000/- each and in default, simple imprisonment for 6
months for the offence punishable under Section 8 of The
Protection of Children from Sexual Offences (POCSO) Act,
2012 (hereinafter referred to as the "POCSO Act" for short),
rigorous imprisonment of 5 years and fine of Rs. 20,000/-
each and in default, simple imprisonment for 1 year for the
offence punishable under Section 10 of the POCSO Act. All
the sentences were ordered to run concurrently.
1.1 Criminal Appeal No. 545 has been filed by the original
accused no. 1 and Criminal Appeal No. 1042/2024 has
been filed by the original accused no. 2 against the same
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impugned judgement and order passed by the learned Trial
Court in Special (POCSO) Case No. 4/2022 on 25.01.2024
and hence, both the appeals have been disposed of by this
common judgement.
1.2 The appellant of Criminal Appeal No. 545/2024 and
appellant of Criminal Appeal No. 1042/2024 are referred as
the accused in the rank and file as they stood in the original
case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 The complainant - the mother of the victim had a
dispute with her husband and had taken a divorce from
him. Out of their wedlock, they had two children, a son and
a daughter and she left the son with her husband and
brought the daughter, who was aged three years and three
months at the time of the incident and came to reside with
the accused no. 1 as she was in a relationship with him. On
06.02.2022, the accused no. 1, complainant and the minor
daughter came to reside at the house of the accused no. 2 at
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Patan Vav. On 07.02.2022, at around 10.00 am, both the
accused started assaulting the victim and she started crying
and the complainant intervened and took her away from the
custody of both the accused. On 09.02.2022, at around
11.00 pm, the minor daughter was sleeping on the bed and
she saw the accused no. 2 putting his hands in the leggings
of the victim. The victim started crying and in the presence
of the complainant, both the accused started beating the
victim. She forcibly took the victim to the inner room and
found that she had sustained injuries on her face, back
portion and private part. She took the victim to various
hospitals for treatment and a complaint under Sections 323,
354, 506, 114 of the Indian Penal Code, 1860 and Sections
8, 9(i)(m) and Section 10 of the POCSO Act was registered at
the Patan Vav Police Station at C.R. no.
11213043220074/2022 on 18.02.2022.
2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the Sessions Court, Rajkot and
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the case was registered as Special (POCSO) Case No.
4/2022.
2.3 The accused were duly served with the summons and
the accused appeared before the learned Trial Court and
after the procedure under Section 207 of Code of Criminal
Procedure, 1973 was followed the learned Trial Court heard
the arguments of learned APP and learned advocate for the
accused nos. 1 and 2 and passed an order below Exh. 6 to
frame the charge under Section 323, 506(2) and 34 of the
Indian Penal Code, 1860 against the accused no. 1 and a
charge under Section 323, 506(2), 34 and 354(A) of the
Indian Penal Code, 1860 and Sections 8, 9(i)(n)(m) and
Section 10 of the POCSO Act against the accused no. 2.
Accordingly, the charge was framed under the said sections
against the accused at Exh. 7 and the statement of the
accused were recorded at Exhs. 8 and 9 respectively. The
accused denied all the contents of the charge and the entire
evidence of the prosecution was taken on record.
2.4 The prosecution examined 15 witnesses and produced
27 documentary evidences on record in support of their
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case and after the learned Additional Public Prosecutor filed
the closing pursis, the further statement of the accused
under Section 313 of the Code of Criminal Procedure, 1973
were recorded. The accused denied the evidence and refused
to step into the witness box or lead any evidence and stated
that a false case has been filed against them. After the
arguments of the learned APP and learned advocates for
both the accused were heard, the learned Trial Court, by the
impugned judgment and order dated 25.01.2024, was
pleased to find the accused nos. 1 and 2 guilty and sentence
them to simple imprisonment of 1 month and fine of Rs.
1000/- each and in default, simple imprisonment for 15
days for the offence punishable under Section 323 read with
Section 34 of Indian Penal Code, 1860, rigorous
imprisonment of 3 years and fine of Rs. 1000/- each and in
default, simple imprisonment for 3 months for the offence
punishable under Section 354A read with Section 34 of
Indian Penal Code, 1860, rigorous imprisonment of 3 years
and fine of Rs. 20,000/- each and in default, simple
imprisonment for 6 months for the offence punishable
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under Section 8 of The Protection of Children from Sexual
Offences (POCSO) Act, 2012 (hereinafter referred to as the
"POCSO Act" for short), rigorous imprisonment of 5 years
and fine of Rs. 20,000/- each and in default, simple
imprisonment for 1 year for the offence punishable under
Section 10 of the POCSO Act. All the sentences were ordered
to run concurrently.
3. Being aggrieved and dissatisfied with the judgment
and order of conviction, the appellant of Criminal Appeal
No. 545/2024 who is the original accused no. 1 has filed the
appeal mainly stating that the judgment and order of
conviction and sentence is contrary to law, against the
express provisions of statute and against the evidence on
record and is unjust, improper, incorrect and against good
conscience and is required to be quashed and set aside. The
learned Trial Court has failed to appreciate that there is
patent infirmity in the order of conviction which has
rendered the order of conviction prima facie erroneous.
From the deposition of the complainant, it is clear that the
complainant had a marital discord with her husband and
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she started staying with the appellant and initially they
stayed at the house of the sister of the appellant with the
minor child. The complainant has deposed that the
appellant and the co-accused had assaulted the victim on
her private part but has specifically deposed that the
accused no. 2 had put his hands into the leggings of the
victim and had pinched her on her private part and she had
found visible marks on the thighs and private part of the
victim. The allegations on the face of it are against the co-
accused and the present appellant was staying with the
victim as his father but no allegations are placed against
him about the commission of offences punishable under
Section 354(A) of the Indian Penal Code, 1860 or Section 8,
9(i)(m) and 10 of the POCSO Act. At the best, there is one
episode of assault for which the sentence is imposed upon
the appellant under Sections 323 and 34 of the Indian Penal
Code, 1860. The learned Trial Court has not appreciated
that the victim was taken to various Medical Officers and
the history given by the complainant to the Medical Officer
examined at Exh. 10 is about a fall while playing and the
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Medical Officer did not examine the private part of the
victim. The second Medical Officer noticed injuries on the
body of the victim including the private part but in the
history it was stated that she had dashed with a hard
surface along with the fall from the bicycle. The history
given before the third Medical Officer is regarding the
manipulation done by the appellant and the co-accused on
her private part and the Medical Officer has noticed swelling
over the vulva of the victim and during the cross
examination has admitted that the injury could be
sustained as a result of a fall from a motorcycle. That in
fact, even before the Medical Officer serving at Patan Vav,
the history narrated was that the victim had a fall from a
staircase. The learned Trial Court has failed to appreciate
that the allegations are levelled against the co-accused and
not against the present appellant and the assault was with
no intention to outrage the modesty of the victim by
manipulating her private parts. None of the charges would
apply to the case of the appellant and the appellant is
wrongly convicted for the charge of Section 8 of the POCSO
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Act. The learned Trial Court has failed to appreciate the
difference between a physical assault or a sexual assault
and the prosecution has not proved the intention of the
appellant behind the act. That in fact, the overall
assessment of the entire evidence is lacking in mens rea
which is the basic requirement of criminal jurisprudence.
Moreover, for the incident taking place between 07.02.2022
to 09.02.2022, the FIR came to be lodged on 18.02.2022
and there is no plausible explanation regarding the late
filing of the FIR which is fatal to the case of the prosecution,
the way in which the overall case is an inter-se relationship
between the parties. Even otherwise, the judgment and
order of conviction and sentence is illegal, unjust, improper
and bad in law and the same is required to be quashed and
set aside.
3.1 The original accused no. 2 has filed Criminal Appeal
No. 1042/2024 and has challenged the impugned judgment
and order being aggrieved by the same mainly stating that
the appellant is the friend of the co-accused with whom the
complainant got married and was residing with. As per the
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case of the prosecution, the complainant had a dispute
between her husband and she developed a relationship with
the co-accused and they stayed at Rajkot for about one and
a half month and thereafter, resided for some days at the
house of the appellant. The dispute between the
complainant and the co-accused was on account of the
daughter of the first marriage and it is vaguely alleged that
the co-accused and the appellant had given kick and fist
blows to the victim. At the time when the minor was taken
to the hospital, an absolute different version was stated and
in fact, the appellant who is a friend of the husband of the
complainant is sought to be falsely implicated. The learned
Trial Court has committed a serious error in relying upon
the evidence of the complainant who is not believable and
the evidence is not reliable so as to sustain the order of
conviction. The complainant has given different history
before the various doctors where the victim was taken and a
tutored and contradictory version is submitted before each
Medical Officer. The place of incident as projected is not
proved and in the entire case of the prosecution, the
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involvement of the appellant is not proved. No offence under
the POCSO Act is made out and the entire conviction is
based on moral conviction rather than a legal one and the
learned Trial Court has committed a serious error of law in
not appreciating the submissions made before the learned
Trial Court in true and proper perspective. Hence, the
judgment and order of conviction is liable to be quashed
and set aside.
4. Heard learned advocate Mr. Pratik Barot for the
appellant of Criminal Appeal No. 545/2024 and learned
advocate Mr. Ashish Dagli for the appellant of Criminal
Appeal No. 1042/2024, learned advocate Mr. Jay Ambani
for the respondent no. 2 and learned APP Ms. C.M. Shah for
the respondent State in both the appeals.
5. Learned advocate Mr. Pratik Barot for the appellant of
Criminal Appeal no. 545 of 2024 has submitted that a
failure of justice has occasioned and a serious prejudice is
caused in particular convicting the appellant for the charges
under Section 354(A) of the Indian Penal Code, 1860 and
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Sections 8 and 10 of the POCSO Act mainly, as the
appellant was charged with Section 323, 506(2) and 34 of
the Indian Penal Code, 1860 yet the conviction and sentence
was imposed upon him under Section 354(A) of the Indian
Penal Code, 1860 and Section 8 and 10 of the POCSO Act
with the reasoning that since, the appellant had assaulted
the minor victim aged 3 years and 3 months on her private
part, as deposed by the mother of the victim in her
complaint and as recorded before a gynaecologist and her
testimony on oath, so believing the case to be of collective
assault, the appellant was also held accountable for the
charges under Section 354(A) of the Indian Penal Code,
1860 and Sections 8 and 10 of the POCSO Act even though
no charges under these sections were framed against the
appellant and the same is a patent perversity in the eyes of
law. Learned advocate submits that the non-framing of a
charge under a particular penal provision has caused real
prejudice for the reason that the appellant was not informed
as to what was the real case against him and he could not
defend himself properly. Hence, if the conviction order is to
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be tested on the touchstone of prejudice theory, an
expression failure of justice is present in a case where
reading Sections 464 and 465 of the Code of Criminal
Procedure, 1973 the appellant is taken by surprise on the
day on which he is convicted and sentenced for offences for
which he is not charged with. It is settled law that a mere
discovery of an error, irregularity or omission in the framing
of charge does not ipso facto render the decision of the court
invalid unless a failure of justice has occasioned which will
vitiate the decision and that is exactly what has happened
in the present case. Learned advocate submits that it is not
an error, irregularity or omission in framing of the charge
but the learned Trial Court while framing the charge was
conscious of a fact that the role inter se attributed to both
the accused was not identical and framed a special charge
against the present appellant. Learned advocate further
submits that Section 222(1) of the Code of Criminal
Procedure permits a Court of law to convict a person for a
minor offence with which he is not originally charged with
but Section 354(A) of the Indian Penal Code, 1860 and
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Sections 8 and 10 of the POCSO Act are not minor offences
in comparison to Sections 323, 506(2) and 34 of the Indian
Penal Code, 1860 and hence, the conviction and sentence
under Section 354(A) of the Indian Penal Code, 1860 and
Sections 8 and 10 of the POCSO Act is bad in law. The
learned Trial Court has believed an allegation that the
appellant is a part of a collective assault made on the victim
who was aged 3 years and 3 months on her private part and
is an equally responsible accused in the company of original
accused no. 2. That in fact, taking the case of the
prosecution at its best, in the evidence of the mother of the
victim, there is no specific overt act attributed to the
appellant of having assaulted the victim on her private part
but there is only an allegation of a collective assault by both
the accused upon the victim. Hence, the assault on the
private part of the victim by the present appellant is not
even the case of the mother of the victim in her entire
examination in chief. In fact, before none of the Medical
Officers, there is a specific history given by the mother of
the victim as to the present appellant having assaulted the
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victim on her private part. The act of the present appellant
participating in a collective assault in the company of the
original accused no. 2 at best could bring the case against
him for the offences punishable under Section 323, 34 the
Indian Penal Code, 1860 for which he is already convicted
and sentenced. That in fact, the action of the appellant was
not motivated with sexual intent and the circumstances in
which the touch or physical contact occurs would be
determining of whether it is motivated by sexual intent and
in order to convict and sentence the appellant under Section
8 of the POCSO Act would show that there was no sexual
intent on the part of the appellant. That in fact, a failure of
justice has occasioned and serious prejudice is caused to
the appellant and there is patent infirmity, perversity and
defect in the judgment of conviction and sentence going to
the root of the case and hence, the conviction and sentence
for the offences punishable under Section 354 of the Indian
Penal Code, 1860 and Sections 8 and 10 of the POCSO Act
may be quashed and set aside.
5.1 Learned advocate for the applicant has relied on the
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following judgments:
1. Kalicharan Vs. State of Uttar Pradesh.
AIR 2023 SC 63
2. Bhimanna Vs. State of Karnataka
AIR 2012 SC 3026
3. Sushilkumar Tiwari Vs. Hare Ram Sah
AIR 2025 SC 4828
4. State of Uttar Pradesh Vs. Ram Swaroop @ Barkat
2026 (5) JT 292
5. Attorney General for India Vs. Satish
AIR 2022 SC 13
6. Shamsaheb M. Multtani Vs. State of Karnataka
AIR 2001 SC 921
6. Learned advocate Mr. Ashish Dagli for the appellant of
Criminal Appeal No. 1042/2024 has submitted that the
complainant had a relationship with the co-accused and
they both were residing with the minor victim at the house
of the present appellant. It is alleged that during this period
the appellant and the co-accused subjected the victim to
physical assault and the appellant inserted his hand inside
the victim's leggings and touched her private parts. It is
further alleged that the co-accused threatened the
complainant not to disclose the incident to anyone.
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However, it is on record that false history of accidental
injuries were given to the Medical Officers and upon
disclosure of the alleged incident, the complaint came to be
registered on 18.02.2022 leading to investigation and
eventual conviction of the appellant. The appellant has been
convicted for the offence under Section 323, 354(A) and 34
of the Indian Penal Code, 1860 and under Sections 8 and 10
of the POCSO Act. However, considering the contradictions
in the history given by the complainant to the various
Medical Officers, there is no clear and cogent evidence that
the appellant had, with any sexual intent, assaulted the
minor victim. There are contradictions and improvements in
the history and it was only subsequently that the
involvement of the appellant was shown by the original
complainant. Learned advocate further submits that there is
patent irregularity in the appreciation of the evidence as the
learned Trial Court has not considered the contradictions
and the subsequent improvisation in the history given to the
various Medical Officers and it has caused a serious
prejudice to the appellant. The impugned judgement and
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order of conviction is bad in law and against the settled
principles of law and hence is required to be quashed and
set aside.
7. Learned APP Ms. C.M. Shah for the respondent State
and learned advocate Mr. Jay Ambani for the respondent
no. 2 have jointly submitted that the learned Trial Court has
appreciated the evidence and passed the impugned
judgement and order and no interference is required hence,
the appeal may be rejected.
8. Before appreciating the evidence of the prosecution on
record, it is necessary to reiterate the cardinal principles of
jurisprudence as settled by the Apex Court in a catena of
decisions and the first cardinal principle is that the
prosecution is required to prove their case beyond
reasonable doubts. The prosecution cannot take any benefit
of the weaknesses of the defense. The second cardinal
principle is that in a criminal trial, the accused is presumed
to be innocent until he/she is proved guilty by the evidence
adduced by the prosecution on record beyond reasonable
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doubts and the third cardinal principle is that the onus of
burden never shifts from the prosecution.
9. As far as cases under POCSO Act are concerned, the
Apex Court in Nawabuddin Vs. State of Uttarakhand
reported in AIR 2022 Supreme Court 910 has observed in
para 10 as under:
10. Keeping in mind the aforesaid objects and to achieve what
has been provided under Article 15 and 39 of the Constitution to
protect children from the offences of sexual assault, sexual
harassment, the POCSO Act, 2012 has been enacted. Any act of
sexual assault or sexual harassment to the children should be
viewed very seriously and all such offences of sexual assault,
sexual harassment on the children have to be dealt with in a
stringent manner and no leniency should be shown to a person
who has committed the offence under the POCSO Act. By
awarding a suitable punishment commensurate with the act of
sexual assault, sexual harassment, a message must be conveyed
to the society at large that, if anybody commits any offence under
the of sexual assault, sexual harassment or use of children for
pornographic purposes they shall be punished suitably and no
leniency shall be shown to them. Cases of sexual assault or
sexual harassment on the children are instances of perverse lust
for sex where even innocent children are not spared in pursuit of
such debased sexual pleasure.
Children are precious human resources of our country; they are
the country's future. The hope of tomorrow rests on them. But
unfortunately, in our country, a girl child is in a very vulnerable
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position. There are different modes of her exploitation, including
sexual assault and/or sexual abuse. In our view, exploitation of
children in such a manner is a crime against humanity and the
society. Therefore, the children and more particularly the girl child
deserve full protection and need greater care and protection
whether in the urban or rural areas. As observed and held by this
Court in the case of State of Rajasthan Vs. Om Prakash, (2002) 5
SCC 745, children need special care and protection and, in such
cases, responsibility on the shoulders of the Courts is more
onerous so as to provide proper legal protection to these children.
In the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703,
it is observed by this Court that a minor who is subjected to
sexual abuse needs to be protected even more than a major
victim because a major victim being an adult may still be able to
withstand the social ostracization and mental harassment meted
out by society, but a minor victim will find it difficult to do so.
Most crimes against minor victims are not even reported as very
often, the perpetrator of the crime is a member of the family of the
victim or a close friend. Therefore, the child needs extra
protection. Therefore, no leniency can be shown to an accused
who has committed the offences under the POCSO Act, 2012 and
particularly when the same is proved by adequate evidence
before a court of law.
10. As per the settled principles of law in conviction
appeals, when the appellate Court finds that the findings of
fact was based on a wholesome erroneous approach and the
very basis of reasoning was not in the right perspective and
the intrinsic merit of the evidence of the witness was not
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considered and the trial was perversely disposed of
permitting manifest errors and glaring infirmities, the
appellate Court can interfere and exercise the powers in a
conviction appeal and a finding on merits, after considering
and meticulously dissecting the evidence on record, is
imperative.
11. In the instant case, the accused no. 1 has been
charged for the offence under Sections 323, 506(2) and 34
of Indian Penal Code, 1860 and accused no. 2 has been
charged for the offence under Sections 323, 354(A) and 34
of Indian Penal Code and Sections 8, 9(i)(m) and 10 of the
POCSO Act.
11.1 Learned advocate Mr. Pratik Barot for the accused no.
1 has vehemently argued that there is a serious prejudice
caused in convicting the appellant for the charges
punishable under Section 354 and Sections 8 and 10 of the
POCSO Act as the appellant has been charged for the
offence under Section 323, 506(2) and 34 of the Indian
Penal Code, 1860 and has not been charged for the offence
under Section 354(A) and Section 8 and 10 of the POCSO
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Act. Learned advocate has submitted that as per Section
215 of the Code of Criminal Procedure, 1973, the accused
was mislead as no charge under Section 354(A) of Indian
Penal Code, 1860 or under Section 8 and 10 of the POCSO
Act were framed against him and it was only on the day of
sentence, he realized that he has been convicted for these
offences. The defect in framing of the charge has caused
serious prejudice as the accused was informed what was
the real case against him and he could not defend himself
properly and a failure of justice has occurred.
12. As per the evidence on record, the accused no. 1 was
residing with the complainant - the mother of the victim
who was aged three years and three months at the time of
the incident as she was embroiled in a matrimonial discord
with her husband, which ultimately culminated in divorce.
Thereafter, she entered into a relationship with the present
appellant and started residing with him along with the
victim, who was born from her previous marriage. The
complainant has narrated the sequence of events alleged to
have occurred on 06.02.2022, 07.02.2022, 09.02.2022,
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16.02.2022, 17.02.2022 and 18.02.2022 during which
period the victim was taken to various Medical Officers for
examination and treatment.
12.1 The chronology of medical examination assumes
considerable significance. Initially, the victim was taken to
PW8 - Dr. Shantilal Nareshbhai Trambadiya, examined at
Exh. 39 who deposed that on 26.01.2022 the minor child
was brought to him with a history of having fallen from the
stairs. She had sustained injuries on her backside and
stomach, and reddish and blackish marks were noticed on
her body. He prescribed painkillers and referred her to a
paediatrician. The witness has categorically stated that he
did not examine her private parts.
12.2 Thereafter, the victim was medically examined by PW1
- Dr. Aniruddhsinh Virabhai Rathod examined at Exh. 10
who stated that the history provided by her father disclosed
that the child had fallen while playing. She complained of
pain on her backside, there was a possibility of fracture in
the spine, multiple greenish marks of uneven shape were
present on her backside, swelling was noticed on the
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forehead accompanied by pain, and bluish injury marks
were found on her thighs and he referred her to a higher
medical centre for further treatment. Notably, this witness
was not cross-examined by accused no.1. In the cross-
examination conducted on behalf of accused no.2, the
witness stated that no names of any assailants were
disclosed in the history and only an accidental fall while
playing was narrated.
12.3 Subsequently, the victim was taken to PW4 - Dr.
Nisarg Jamndas Patel examined at Exh. 19 who deposed
that on 18.02.2022 the victim was brought for treatment
and in the history furnished by the mother, it was stated
that accused no.1 had assaulted the child on multiple
occasions since 07.02.2022 and had also dashed her
against the wall at their residence at Patan Vav. Upon
examination, the following injuries were recorded:
(I) Swelling with tenderness over the dorsal and
lumbar spine region over the back measuring
approximately 8 cm × 4 cm with swelling in the sacral
region suggestive of haematoma and vertebral fracture;
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(ii) Multiple large irregular yellowish bruises over the
back, approximately 7 to 10 days old;
(iii) Greenish-blue bruises over the lower abdomen,
labia majora and perineal region, irregular and large in
size, about 5 to 6 days old;
(iv) Swelling with tear over the frontal forehead
measuring about 5 cm × 4 cm with black eye
haematoma; and
(v) Irregular large brownish bruises over the anterior,
medial, lateral and posterior aspects of both thighs,
approximately 4 to 5 days old.
The victim was thereafter referred to Civil Hospital,
Rajkot, for orthopaedic opinion. This witness was also not
cross-examined by accused no.1. In the cross-examination
on behalf of accused no.2, the witness stated that such
injuries could also be sustained due to a fall from a
motorcycle.
12.4 The victim was thereafter examined by PW2 - Dr.
Hitesha Hirenbhai Trivedi examined at Exh. 13 who stated
that on 18.02.2022 at 10.51 hours, the victim was brought
with a history of assault dated 07.02.2022 at about 10.00
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hours by accused no.1. On examination, complaints of
lower abdominal pain, pain over the left hip, bruises over
the lower abdomen, back pain, bruising and swelling over
the back, as well as bruising over the genital region were
noticed. Since injuries were also found on the private parts
of the victim, she was referred to a Gynecologist. This
witness was not cross-examined by accused no.1 and in the
cross-examination by accused no.2, he specifically stated
that there was no history of assault attributed to accused
no.2.
12.5 Thereafter, the victim was medically examined by PW3
- Dr. Jhalak Vinaybhai Karena examined at Exh. 17 who
deposed that on 19.02.2022 at about 01.00 am, the mother
disclosed that she had developed a relationship with
accused no.1 and that the victim was her daughter from her
previous marriage. It was stated that accused no.1 disliked
the minor victim and had assaulted her on 07.02.2022. It
was further alleged that on 09.02.2022 the accused no.2
had taken the child to his shop and she had seen him
putting his hand in the leggings of victim. Upon
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examination of the private parts of the victim, swelling over
the vulva was found. The witness opined that the injuries on
the body as well as the vulval injuries were suggestive of
sexual assault. This witness was also not cross-examined by
accused no.1. In the cross-examination by accused no.2,
she stated that such injuries could also be caused by a fall
from a motorcycle.
12.6 In the backdrop of the aforesaid evidence, the
provisions of Section 464 of the Code of Criminal Procedure
assume relevance. The said provision stipulates that where
the Court of appeal, confirmation or revision forms an
opinion that a failure of justice has in fact been occasioned
by reason of omission to frame a charge, or by any error,
omission or irregularity in the charge, it may order that a
charge be framed and direct that the trial be recommenced
from the stage immediately after the framing of the charge.
However, the proviso further mandates that where the Court
is of the opinion that, on the facts proved, no valid charge
could have been framed against the accused in respect of
the alleged offence, it shall quash the conviction.
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12.7 Learned advocate for the accused no. 1 has
strenuously contended that no charge was ever framed
against the accused no. 1 for the offences punishable under
Section 354(A) of the Indian Penal Code, 1860 and Sections
8 and 10 of the POCSO Act yet the learned Trial Court
proceeded to record conviction and impose sentence for the
said offences. It is vehemently submitted that such omission
has occasioned a grave failure of justice, inasmuch as the
accused no. 1 was never put to notice of the precise nature
of accusations levelled against him and, consequently, was
deprived of an effective opportunity to defend himself
against those specific allegations. It is further argued that
the learned Trial Court failed to inform the accused no. 1 of
the real and substantive case sought to be established
against him, thereby causing serious prejudice to his
defence. According to the learned advocate, if the impugned
judgment of conviction is tested on the touchstone of the
doctrine of prejudice, it becomes evident that the omission
to frame the requisite charges has resulted in manifest
failure of justice, rendering the order of conviction
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unsustainable in law. In support of the aforesaid
submissions, reliance has been placed upon the decisions
in Kali Charan v. State of Uttar Pradesh, Vimanna v. State of
Karnataka, Sushil Kumar Tiwari v. Hare Ram Shah, and
Shamnsaheb M. Multtani v. State of Karnataka, as well as
the provisions contained in Sections 215, 464 and 465 of
the Code of Criminal Procedure. It is submitted that mere
omission or defect in framing a charge does not ipso facto
vitiate the conviction; however, where the Appellate Court
forms an opinion that such omission has in fact occasioned
a failure of justice, the conviction cannot be sustained. In
such circumstances, the order would stand vitiated and
would be liable to be set aside in accordance with law.
13. Upon a careful examination of the entire evidence
recorded during the course of trial, this Court finds that by
no stretch of imagination can it be contended that accused
no.1 was unaware of the nature of the allegations levelled
against him. Throughout the trial, the accusations
pertaining to the physical as well as sexual assault upon the
minor victim by the accused no. 1 were consistently brought
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on record, and accused no.1 was fully conscious of the case
he was required to meet. It is not in dispute that accused
no.1 was in a relationship with the mother of the minor
victim and was residing with him along with the child. The
prosecution case further establishes that the complainant,
having separated from her husband, was residing with
accused no.1 and during the relevant period the minor
victim was also under his care and custody. The incidents
in question occurred while the complainant and the victim
were residing at the house connected with accused no.2 and
the evidence reveals that accused no.1 exercised substantial
control and influence over the complainant. Significantly, in
the medical history recorded before three different Medical
Officers, the complainant specifically named the accused
no.1 as the person who had assaulted the minor victim and
the depositions of these Medical Officers where the injuries
were found on the private parts of the victim, have not been
challenged by the accused no. 1. Such consistent
attribution in the medical history clearly demonstrates that
the allegations against accused no.1 were neither vague nor
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uncertain but were sufficiently specific to put him on clear
notice of the nature of the accusation. It is a settled
principle of criminal jurisprudence that the primary object
of framing a charge is to inform the accused with precision
and certainty of the accusation against him so as to enable
him to effectively defend himself. If the particulars relating
to the time, place and nature of the alleged offence are not
disclosed, prejudice may be caused to the defence.
13.1 At this juncture it would be appropriate to reproduce
the provisions of Section 215 of the Cr.P.C which reads as
under
215. Effect of errors.--
No error in stating either the offence or the particulars required to
be stated in the charge, and no omission to state the offence or
those particulars, shall be regarded at any stage of the case as
material, unless the accused was in fact misled by such error or
omission, and it has occasioned a failure of justice.
However, Section 215 of the Code of Criminal
Procedure, 1973 expressly provides that any error or
omission in stating the offence or the necessary particulars
in the charge shall be regarded as material only if the
accused has in fact been misled by such error or omission
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and a consequent failure of justice has occurred. Therefore,
the real test in the present case is whether the non-framing
of a specific charge under Section 354(A) of the Indian Penal
Code, 1860 and Sections 8 and 10 of the POCSO Act was
sufficient to mislead the accused or resulted in prejudice so
grave as to occasion failure of justice. Upon a thorough
scrutiny of the entire evidence on record of the Trial Court,
including the documentary evidence, exhibited medical
papers, depositions of prosecution witnesses and more
particularly, the statement of accused no.1 recorded under
Section 313 of the Code of Criminal Procedure, 1973 it
becomes evident that every material circumstance relating
to the sexual assault upon the minor victim, including
injuries on her private parts and the allegation of physical
assault, was specifically put to the accused in clear terms.
Despite being confronted with these incriminating
circumstances in detail, accused no.1 did not raise any
specific defence indicating lack of knowledge of the
allegations or prejudice caused by absence of a formal
charge. Except for a bald denial and a general assertion that
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the allegations were false, nothing substantial was brought
on record by way of defence. This clearly indicates that the
accused no. 1 had full knowledge of the nature of
accusations against him and was afforded complete
opportunity to defend himself. In such circumstances, it
cannot be said that the omission to frame a formal charge
under the aforesaid provisions misled the accused or
impaired his right to a fair trial. This Court is of the
considered opinion that the absence of a specific charge,
therefore, remains a mere curable irregularity and not a
fatal illegality and since no actual failure of justice has been
occasioned, the conviction cannot be invalidated solely on
the ground of non-framing of a specific charge.
14. At this juncture, it would also be appropriate to refer
to the provisions of Section 464 and Section 465 of the
Cr.P.C
464. Effect of omission to frame, or absence of, or error in,
charge.--
(1) No finding, sentence or order by a Court of competent
jurisdiction shall be deemed invalid merely on the ground that no
charge was framed or on the ground of any error, omission or
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irregularity in the charge including any misjoinder of charges,
unless, in the opinion of the Court of appeal, confirmation or
revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision, is of opinion
that a failure of justice has in fact been occasioned, it may,
(a) in the case of an omission to frame a charge, order that
a charge be framed, and that the trial be recommended
from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the
charge, direct a new trial to be had upon a charge framed
in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case
are such that no valid charge could be preferred against the
accused in respect of the facts proved, it shall quash the
conviction.
465. Finding or sentence when reversible by reason of error,
omission or irregularity.
(1) Subject to the provisions hereinbefore contained, no finding,
sentence or order passed by a Court of competent jurisdiction
shall be reversed or altered by a Court of appeal, confirmation of
revision on account of any error, omission or irregularity in the
complaint, summons, warrant, proclamation, order, judgment or
other proceedings before or during trial or in any inquiry or other
proceedings under this Code, or any error, or irregularity in any
sanction for the prosecution, unless in the opinion of that Court, a
failure of justice has in fact been occasioned thereby.
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(2) In determining whether any error, omission or irregularity in
any proceeding under this Code, or any error, or irregularity in
any sanction for the prosecution has occasioned a failure of
justice, the Court shall have regard to the fact whether the
objection could and should have been raised at an earlier stage in
the proceedings
14.1 Sections 464 and 465 of the Code of Criminal
Procedure, 1973 clearly provide that an omission or
irregularity in framing of charge shall not, by itself,
invalidate the finding or sentence unless the Court is
satisfied that such omission has, in fact, occasioned a
failure of justice. The Court is further required to consider
whether such objection could and ought to have been raised
at an earlier stage of the proceedings. Unless it is
demonstrated that the accused was genuinely prejudiced in
defending himself and that such omission resulted in a real
miscarriage of justice, the conviction cannot be set aside on
that ground alone. In the present case, accused no.1 cannot
legitimately contend that he was unaware of the allegations
levelled against him. It is not in dispute that accused no.1
was residing with the complainant, who is the mother of the
minor victim and had assumed the position of a father
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figure in the life of the child. Being in such a position, he
was under a legal and moral obligation to protect the minor
victim. However, the prosecution evidence clearly
establishes that instead of safeguarding the child, he
himself, along with the co-accused, subjected the minor
victim to physical assault and was fully aware of the injuries
sustained by her. The complainant, in the medical history
recorded before the Medical Officers, specifically named
accused no.1 as the person who had assaulted the minor
victim. Even though she may not have described every
individual act of assault in precise terms, the consistent
version before the Medical Officers clearly implicated
accused no.1 as the perpetrator of the assault. Upon
medical examination, multiple injuries were found on the
body of the minor victim, and these injuries were duly
recorded by the Medical Officers. The medical evidence
remained substantially unchallenged by the defence. The
Gynecologist further opined that the injuries found on the
private parts of the victim were suggestive of sexual assault.
Thus, from the cumulative effect of the complaint, medical
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evidence, depositions of the Medical Officers and the
surrounding circumstances, it stands clearly established
that accused no.1 was fully aware that allegations of assault
upon the minor victim had been made against him.
Throughout the trial, he was consistently named as the
person responsible for causing injuries to the child. All
incriminating circumstances were specifically put to him
during his examination under Section 313 of the Code of
Criminal Procedure, 1973. Despite being confronted with
the allegations in detail, the accused did not raise any
specific defence except a bald denial and did not
demonstrate that he had suffered any prejudice on account
of the absence of a formal charge under Section 354(A)
Indian Penal Code, 1860 and Section 8 and 10 of the
POCSO Act. Section 215 of the Code of Criminal Procedure
further makes it clear that omission to state the offence or
particulars in the charge becomes material only if the
accused was in fact misled by such omission and a
consequent failure of justice has occurred. In the present
case, no such prejudice is either pleaded or established. No
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objection regarding non-framing of charge was raised at the
appropriate stage of trial, and the entire evidence
unmistakably shows that the accused had full knowledge of
the accusations and had adequate opportunity to defend
himself. This Court is therefore of the firm view that no
failure of justice has been occasioned by the non-framing of
a specific charge under Section 354(A) of the Indian Penal
Code, 1860 and Section 8 and 10 of the POCSO Act. The
omission remains a curable irregularity and not a fatal
illegality.
14.2 Upon a careful appraisal of the entire oral and
documentary evidence on record, this Court is of the
considered opinion that the mere absence of a specific
charge under Section 354(A) of the Indian Penal Code, 1860
and Section 8 and 10 of the POCSO Act does not, in the
facts of the present case, vitiate the conviction recorded by
the learned Trial Court.
15. Learned advocate for the accused no. 1 has contended
that the alleged act of the appellant namely, delivering kicks
and fist blows on the abdomen, back, and forehead of the
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victim cannot, by any stretch of interpretation, be said to
have been actuated by sexual intent. It is submitted that the
prosecution case itself attributes to the appellant
participation in a collective assault upon the minor victim,
along with the co-accused, and does not disclose any
specific overt act indicative of sexual motivation. It is further
urged that the victim, being a minor at the relevant time,
was not examined before the learned Trial Court, and the
case rests substantially upon the testimony of the mother,
who has not deposed to any particularised act attributable
to the present appellant, except a general allegation of joint
assault. Even if the prosecution case is accepted in its
entirety, at its highest, it would only establish that the
appellant, in concert with the co-accused, caused physical
injuries to the victim. Learned advocate submits that the
determinative test for attracting the offence under Section 7
of the POCSO Act lies in the presence of sexual intent,
which must be discerned from the nature of the act, the
surrounding circumstances, the relationship between the
parties, the duration and manner of contact, and the
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purposiveness of such conduct. Applying these parameters,
it is contended that the acts alleged being in the nature of
physical assault devoid of any sexual overtones would not
satisfy the statutory requirement of sexual intent.
Consequently, it is argued that the appellant's liability, if
any, would be confined to offences punishable under
Sections 323 and 34 of the Indian Penal Code.
15.1 It would be fit to reproduce the provisions of Section 7
of the POCSO Act which is as under
7. Sexual assault.--
Whoever, with sexual intent touches the vagina, penis, anus or
breast of the child or makes the child touch the vagina, penis,
anus or breast of such person or any other person, or does any
other act with sexual intent which involves physical contact
without penetration is said to commit sexual assault
Section 7 of the POCSO Act is broadly divided into two
parts; the first part consisting of touching the vagina, penis,
anus or breast of the child with sexual intent or makes the
child touch the vagina, penis and or breast of such person
or any other person. The second part refers to doing any
other act with sexual intent, which involves physical contact
without penetration. In both the parts, the expression
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"touch" is common, and it would refer to putting the hand
or any other part of the body on to the body parts of the
victim as described in the Section.
15.2 With regard to sexual "intent" the Apex Court in
Attorney General of India Vs Satish reported in 2021 (0)
AIJEL - SC68010. in para 36 has observed as under :
36. It may also be pertinent to note that having regard to the
seriousness of the offences under the POCSO Act, the Legislature
has incorporated certain statutory presumptions. Section 29
permits the Special Court to presume, when a person is
prosecuted for committing or abetting or attempting to commit any
offence under Sections 3, 5, 7 and Section 9 of the Act, that such
person has committed or abetted or attempted to commit the
offence, as the case may be, unless the contrary is proved.
Similarly, Section 30 thereof permits the Special Court to presume
for any offence under the Act which requires a culpable mental
state on the part of the accused, the existence of such mental
state. Of course, the accused can take a defence and prove the
fact that he had no such mental state with respect to the act
charged as an offence in that prosecution. It may further be noted
that though as per sub section (2) of Section 30, for the purposes
of the said section, a fact is said to be proved only when the
Special Court believes it to exist beyond reasonable doubt and
not merely when its existence is established by a preponderance
of probability, the Explanation to Section 30 clarifies that
"culpable mental state" includes intention, motive, knowledge of a
fact and the belief in, or reason to believe, a fact. Thus, on the
conjoint reading of Sections 7, 11, 29 and 30, there remains no
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shadow of doubt that though as per the Explanation to Section
11, "sexual intent" would be a question of fact, the Special Court,
when it believes the existence of a fact beyond reasonable doubt,
can raise a presumption under Section 30 as regards the
existence of "culpable mental state" on the part of the accused.
15.3 It would also be appropriate to reproduce the
provisions of Section 29 and Section 30 of the POCSO Act
which reads under:
29. Presumption as to certain offences.--
Where a person is prosecuted for committing or abetting or
attempting to commit any offence under sections 3, 5, 7 and
section 9 of this Act, the Special Court shall presume, that such
person has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is proved.
30. Presumption of culpable mental state.--
(1) In any prosecution for any offence under this Act which
requires a culpable mental state on the part of the accused, the
Special Court shall presume the existence of such mental state
but it shall be a defence for the accused to prove the fact that he
had no such mental state with respect to the act charged as an
offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved
only when the Special Court believes it to exist beyond
reasonable doubt and not merely when its existence is
established by a preponderance of probability.
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Upon a comprehensive appraisal of the prosecution
evidence, it emerges on record that the victim was
admittedly a minor girl child aged three years and three
months at the time of the incident, and the complainant
has unequivocally deposed to having witnessed the
appellant and the co-accused assaulting the victim. It is not
in dispute that the complainant and the appellant were in a
domestic relationship, and subsequent to her divorce, the
complainant, along with the minor victim, had cohabited
with the appellant at the residence of the co-accused. The
sequence of events spanning from 07.02.2022 till the
lodging of the complaint on 18.02.2022 reveals a pattern of
repeated assaults inflicted upon the minor victim by the
appellant and the co-accused, resulting in multiple bodily
injuries including injuries to her private part and swelling in
the vulva due to the act of pinching which proves the act of
touching and assaulting the minor victim on the vagina and
the prosecution has thus successfully established the
foundational facts constituting sexual assault.
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15.4 Having regard to the nature of the acts, the
vulnerability of the minor victim, the domestic setting in
which the incidents occurred, and the sustained pattern of
conduct, the element of sexual intent, as contemplated
under Section 7 of the Act, stands duly established.
Accordingly, the contention of the appellant that the acts
were devoid of sexual intent is devoid of merit, and the
finding of the learned Trial Court with respect to the
applicability of the provisions of the Act warrants no
interference.
16. It is not in dispute that the complainant and the
accused no. 1 were in a relationship and the complainant
had interested herself and the minor victim to the care and
protection of the accused no. 1, but the conduct of the
accused no. 1 strikes at the very root of fiduciary confidence
reposed in a quasi-parental relationship and constitutes a
grave breach of trust. When the complainant and her minor
child entered the household of the accused no. 1 on the
representation or legitimate belief that he stands in the
position of a father to the child, the law imputes to such
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person a heightened duty of care, protection, and moral
guardianship. This relationship is not merely cohabitative
but is imbued with an expectation of safety, emotional
security, and physical well-being. Any act of physical and
sexual assault upon the child by such a person is not only
an offence in the ordinary penal sense but is aggravated by
the betrayal of that entrusted role. The abuse of proximity
and authority, coupled with the exploitation of the child's
vulnerability and dependence, renders the act particularly
reprehensible, evidencing a conscious violation of the
confidence reposed and a dereliction of the protective duty
inherently attached to the assumed parental status. Such
conduct, therefore, justifiably invites a sterner judicial
scrutiny and condemnation.
16.1 The Apex Court in Bhanei Prasad Vs State of
Himachal Pradesh reported in 2025 INSC 934. In para 13
has observed as under :
13. When a father who is expected to be a shield, a guardian, a
moral compass, becomes the source of the most severe violation
of a child's bodily integrity and dignity, the betrayal is not only
personal but institutional. The law does not, and cannot, condone
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such acts under the guise of rehabilitation or reform. Incestuous
sexual violence committed by a parent is a distinct category of
offence that tears through the foundational fabric of familial trust
and must invite the severest condemnation in both language and
sentence. The home, which should be a sanctuary, cannot be
permitted to become a site of unspeakable trauma, and the courts
must send a clear signal that such offences will be met with an
equally unsparing judicial response. To entertain a plea for
leniency in a case of this nature would not merely be misplaced,
it would constitute a betrayal of the Court's own constitutional
duty to protect the vulnerable. When a child is forced to suffer at
the hands of her own father, the law must speak in a voice that is
resolute and uncompromising. There can be no mitigation in
sentencing for crimes that subvert the very notion of family as a
space of security.
17. As regards the allegations against accused no. 2, the
record discloses cogent and reliable evidence establishing
his culpability. The ocular testimony of the complainant is
clear, consistent, and unambiguous, wherein she has
categorically deposed that she witnessed accused no. 2
assaulting her minor daughter. Nothing material has been
elicited in her cross-examination to discredit her version or
to render it doubtful. On the contrary, her testimony finds
due corroboration in the medical evidence on record, which
substantiates the nature and situs of the injuries and lends
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assurance to the prosecution case. The presence of accused
no. 2 at the place of occurrence being his own residence
stands firmly established. Further, PW-8 - Dr. Shantilal
Nareshbhai Trambadia, the first Medical Officer who
examined the victim, has deposed that accused no. 2 was
known to him and had himself brought the complainant
and the victim for medical treatment. This circumstance not
only fortifies the prosecution case as to the presence of
accused no. 2 but also connects him directly with the
immediate aftermath of the incident. In the absence of any
plausible explanation or effective rebuttal from the defence,
and there being no material on record to suggest false
implication or to probabilise an alternative hypothesis, the
foundational facts constituting the offence stand duly
proved by the prosecution.
18. Upon an anxious and comprehensive re-appreciation
of the entire evidentiary record, this Court finds that the
judgment of conviction rendered by the learned Trial Court
does not suffer from any perversity, illegality, or
misapplication of settled principles of criminal
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jurisprudence. It is true that the prosecutrix herself has not
been examined; however, the prosecution case does not rest
in a vacuum. The testimony of the complainant who is the
mother of the child victim stands unimpeached on material
particulars and furnishes a coherent and credible account
of the occurrence and its immediate aftermath. Her evidence
is natural, trustworthy, and free from embellishment, and
nothing substantial has been elicited in cross-examination
to discredit her version. Significantly, the ocular account is
fortified by medical evidence, which lends substantive
assurance to the prosecution case and probabilises the
occurrence of sexual assault in the manner alleged. It is well
settled that conviction can be sustained on the basis of
reliable circumstantial and corroborative evidence even in
the absence of direct testimony of the victim, particularly
where the surrounding circumstances form a complete and
unbroken chain pointing to the guilt of the accused. The
contention raised on behalf of the appellant that no specific
charge for sexual assault was framed against him does not
merit acceptance. The record reveals that all foundational
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facts constituting the offence were duly put to the accused,
and he was afforded full opportunity to defend himself. No
failure of justice or prejudice is demonstrated as having
been occasioned on account of any defect in the framing of
charge, in view of the mandate embodied in Sections 464
and 465 of the Code of Criminal Procedure. Once the
prosecution succeeded in establishing the foundational
facts, the statutory presumptions under Sections 29 and 30
of the POCSO Act stood attracted. The accused have failed
to rebut the said presumptions even on the touchstone of
preponderance of probabilities. The defence taken is found
to be a mere denial, unsupported by any cogent or plausible
explanation, and is wholly insufficient to dislodge the
prosecution case. The alleged discrepancies highlighted by
the defence are trivial and do not strike at the root of the
prosecution case. The overall evidence, when appreciated in
its proper perspective, leads to the only irresistible
conclusion that the guilt of the accused stands proved in
accordance with law. The view adopted by the learned trial
NEUTRAL CITATION
R/CR.A/1042/2024 JUDGMENT DATED: 07/05/2026
undefined
Court is not only a possible view but a well-reasoned and
legally sustainable one.
19. Accordingly, this Court finds no justifiable ground to
interfere with the impugned judgment of conviction and
order of sentence, which is hereby affirmed.
20. Consequently Criminal Appeal No. 545 of 2024 and
Criminal Appeal No. 1042 of 2024 being devoid of merits
stand dismissed.
21. R & P be sent back to the concerned Court forthwith.
ORDER IN CRIMINAL MISC. APPLICATION NO. 2/2026:
In view of the disposal of the captioned appeal being
Criminal Appeal No. 545 of 2024, the present application
does not survive and stands disposed off accordingly.
Sd/-
(S. V. PINTO,J)
VASIM S. SAIYED
