Bombay High Court
Sayyad Nadim Sayyad Asad vs The State Of Mah. Thr. Pso Ramdas Peth ... on 7 May, 2026
2026:BHC-NAG:7178-DB
Judgment
apeal837.22.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.837 OF 2022
Sayyad Nadim Sayyad Asad,
aged about 20 years, occupation labour,
r/o Marghat, Akola, taluka and
district Akola. ..... Appellant.
:: V E R S U S ::
The State of Maharashtra,
through Police Station Officer,
Ramdas Peth, Akola. ..... Respondent.
================================
Shri Parag Bezalwar, Counsel for the Appellant.
Shri S.S.Doifode, Additional Public Prosecutor for the
Respondent/State.
================================
CORAM : URMILA JOSHI-PHALKE & NIVEDITA P.MEHTA, JJ.
CLOSED ON : 29/04/2026
PRONOUNCED ON : 07/05/2026
JUDGMENT :(Per : Urmila Joshi-Phalke)
1. By this appeal, the appellant (the accused) has challenged judgment and order dated 20.10.2022 passed by learned Extra Joint District Judge and Additional Sessions Judge, Akola (learned Judge of the trial court) in Special (POCSO) Case No.133/2021.
.....1/-
Judgment apeal837.22.odt 2
2. By the said judgment impugned, learned Judge of the trial court convicted the accused for offence under Section 363 of the IPC and sentenced to suffer rigorous imprisonment for 7 years and to pay fine Rs.5000/-, in default, to suffer further simple imprisonment for 3 months.
He is also convicted for offence under Section 366 of the IPC and sentenced to suffer rigorous imprisonment for 10 years and to pay fine Rs.5000/-, in default, to suffer further simple imprisonment for 3 months.
He is also convicted for offence under Section 376(3) of the IPC and sentenced to suffer life imprisonment and to pay fine Rs.50,000/-, in default, to suffer further simple imprisonment for 3 months.
He is further convicted for offence under Section 323 of the IPC and sentenced to suffer rigorous imprisonment for 1 year and to pay fine Rs.1000/-, in default, to suffer further simple imprisonment for 1 month.
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Judgment apeal837.22.odt 3 He is also convicted for offence under Section 506 of the IPC and sentenced to suffer rigorous imprisonment for 7 years and to pay fine Rs.5000/-, in default, to suffer further simple imprisonment for 3 months.
He is also convicted for offence under Section 3 punishable under Section 4 of The Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) and sentenced to suffer life imprisonment and to pay fine Rs.50,000/-, in default, to suffer further simple imprisonment for 3 months.
3. Facts of the prosecution case necessary for disposal of the appeal, are as under:
The victim has lodged a report against the accused alleging that when she was proceeding on 26.8.2021, at about 6:00 pm, towards house of her grandmother to bring her mother back, the accused came near "Kabrastan Masjid" on the pretext of taking her to meet her father as her father met with an accident. He took her to the Akola Bus Stand and, thereafter, Barshitakli in an isolated building, which was .....3/-
Judgment apeal837.22.odt 4 under construction, and subjected her for forceful sexual assault by beating her by means of "wire" and thereby committed an offence. She was also threatened not to disclose the said incident to anybody. While searching her, her brother has seen her on Railway Track, Akola. After seeing her brother, the accused fled away.
On the basis of the said report, the police have registered the crime against the accused.
4. After registration of the crime, the Investigating Officer carried out investigation and submitted chargesheet against the accused.
5. Learned Judge of the trial court has framed charge vide Exh.8 against the accused. He pleaded not guilty and claimed to be tried.
6. In support of the prosecution case, the prosecution has examined in all 9 witnesses, as follows:
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Judgment
apeal837.22.odt
5
PW Names of Witnesses Exh.
Nos. Nos.
1 Ashiyabee Mohd.Afzal, mother of the victim 20
2 the victim 21
3 Mohd.Salim Mohd. Afzal, brother of the 73
victim
4 Suraj Londhe, acted as a pancha on seizure 74
memos as well as spot panchanama
5 Dr.Shubham Sapkal, Medical Officer 82
6 Dr.Chaitanya Kulkarni, Medical Officer 88
7 Kaveri Bhakare, police constable 100
8 Sanjivani Pundage, Investigating Officer 103
9 Sajid Ansari, Headmaster 130.
7. In support of the defence, the prosecution has examined 3 defence witnesses; DW1 Abdul Mahemood Exh.136; DW2 Javedkhan Lalakhan Exh.140, and DW3 Sheikh Juber Sheikh Karim Exh.141.
8. Besides the oral evidence, the prosecution placed reliance on statement recorded under Section 164 of the CrPC Exh.10, muddemal invoice challan Exh.13, report Exh.22, FIR Exh.23, statement of the victim taken by the Child Welfare Committee Exh.24, seizure memo of clothes of the accused .....5/-
Judgment apeal837.22.odt 6 Exh.75, seizure memo of clothes of the victim Exh.76, spot panchanama Exh.77, seizure memo as to seizure of samples Exh.79, seizure memo as to samples of the accused Exh.80, medical certificate of injuries Exh.83, requisition to the Medical Officer Exh.84, opinion of the Medical Officer Exh.85, medical examination papers to determine the age of the victim Exh.83, medical case record Exh.90, ossification reports Exhs.91 and 92, Form-B certificate Exh.93, requisitions to carrier Exhs.94 to 99, requisition to the Medical Officer Exh.104, requisitions for calling panchas Exhs.106 and 107, notice to panchas Exh.108, Log-Book Extract Exh.109, requisition to the Medical Officer Exh.110, arrest memo Exh.111, medical certificate of the accused Exh.113, requisition to the Chemical Analyzer Exh.114, requisition to the Municipal Commissioner for obtaining birth certificate of the victim Exh.119, letter to the headmaster Exh.121, map of the spot Exh.124, Chemical Analyzer's Report Exh.128, school admission extracts Exhs.131 and 132, and school leaving certificate Exh.133.
.....6/-
Judgment apeal837.22.odt 7
9. All the incriminating evidence is put to the accused in order to obtain his explanation as to the evidence appearing against him by recording his statement under Section 313 of the CrPC. Defence of the accused is of false implication as well as one sided love affair with the victim.
10. After recording the evidence and appreciating the same, learned Judge of the trial court has held the accused guilty and sentenced him as the aforesaid.
11. Being aggrieved and dissatisfied with the same, the present appeal is preferred by the accused on the ground that learned Judge of the trial court has not appreciated fact that the age of the victim is not proved by the prosecution as well as the entire evidence of the victim and other witnesses nowhere establishes that the victim was "enticed" or "taken by the accused from lawful guardianship of her father" and subjected for forceful sexual assault. It is submitted by learned counsel for the accused that while awarding the punishment, learned Judge of the trial court has not .....7/-
Judgment apeal837.22.odt 8 considered Section 42 of the POCSO Act wherein an alternate punishment is provided and held him guilty under the provisions of the IPC and the POCSO Act. For all above these reasons, the judgment impugned is liable to be quashed and set aside.
12. Heard learned counsel for the accused and learned Additional Public Prosecutor for the State. They have taken us through the entire evidence on record and the judgment impugned in the present appeal.
13. Learned counsel for the accused submitted that the age of the victim is not proved by the prosecution, which is an essential ingredient to offences under Sections 363 and 366 of the IPC as well as under Section 4 of the POCSO Act. The evidence of defence witnesses shows that after the incident, immediately, marriage of the victim was performed with DW2 Javedkhan and DW1 Abdul Mahemood is witness who has performed the said marriage. This fact itself is sufficient to show that the victim has attended the age of majority and, .....8/-
Judgment apeal837.22.odt 9 therefore, her marriage was performed with DW2 Javedkhan. He further submitted that as the victim was having one sided love affair with the accused, she herself joined company of the accused and subsequently, the false report was lodged against the accused. He submitted that fact of sexual assault on her is not corroborated by the medical evidence and, therefore, on that count also, the judgment impugned in the appeal is liable to quashed and set aside.
14. Per contra, learned Additional Public Prosecutor for the State has strongly opposed the said contentions and submitted that the medical evidence or injuries on the person of the victim is not sine quo non to attract offence under Section 376 of the IPC or under Section 4 of the POCSO Act. Absence of mark of injuries on the person of the victim cannot be adopted as a formula to disbelieve the version of the victim. It depends on facts and circumstance of each case. When the evidence of the victim inspires confidence and there is no reason for her to implicate the accused falsely, her evidence itself is sufficient to prove the guilt of the accused.
.....9/-
Judgment apeal837.22.odt 10 Nothing has come on record to show that the victim has any ulterior motive to falsely implicate the accused and, therefore, independent corroboration to the evidence of the victim is not required as it inspires the confidence.
15. Learned counsel appearing for the respective parties have also taken us through the entire evidence adduced and the entire record.
16. The accused is charged of offence under Section 363 of the IPC on an allegation that when the victim was approaching to the house of her grandmother, the accused restrained her and on a false pretext, that her father met with an accident and she has to come along with him to see him, took her to Barshitakli in an under construction building and subjected her for forceful sexual assault and thereby committed offences under Sections 363 and 366 of the IPC.
17. Before entering into the merits of the case, it is necessary to refer the definition of "kidnapping" given under Section 361 of the IPC (137(1)(b) of the BNS), which states .....10/-
Judgment apeal837.22.odt 11 that, whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation to the said Section states that, words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
18. To establish the charge under Section 363 of the IPC, the prosecution mainly placed reliance on the evidence of mother of the victim PW1, victim PW2, and brother of the victim PW3 to prove the age of the victim as well as fact of "kidnapping."
19. The evidence of mother of the victim PW1, admittedly, not discloses the age of the victim. She has nowhere stated that the age of the victim as well as her birth .....11/-
Judgment apeal837.22.odt 12 date. However, the victim has stated her age, at the time of her deposition, as sixteen years. She has also narrated her birth date as 6.8.2007. Recital of the FIR also shows that she has narrated her age as fourteen years. Admittedly, she has not stated her birth date in the FIR or the report. However, during the investigation, the Investigating Officer has sent a requisition to the Municipal Corporation for obtaining her birth certificate. He has also issued a letter to the Municipal Corporation Urdu Girls' Primary School, Akola to obtain the school record to ascertain the birth date of the victim.
20. The evidence of Headmaster PW9 Sajid Ansari serving with the Municipal Corporation Urdu Girls' Primary School, Akola shows that a letter Exh.121 was received by the school and in response to the said letter, he has issued extract of Admission Register under his signature, which is at Exh.131. He prepared the same on the basis of general register. As per the school record, birth date of the victim is 6.8.2007 and she took admission in 1st Std. in his school. He has also shown the original register brought by him. The said school record was .....12/-
Judgment apeal837.22.odt 13 maintained in Urdu Language. A translation copy is placed on record. He specifically stated that the extract filed on record is correct and true copy of the original school record is maintained in Urdu language. He further deposed that he being the headmaster is custodian of the school record. At the time of taking relevant entry in the register, he was not serving as headmaster in the said school. The said entry was taken the then headmaster of the school.
21. Though the victim has stated her birth date as 6.8.2007 during her chief-examination and though she was cross examined at length, except denial that 6.8.2007 is not her birth date, no other cross examination is carried out to falsify her version as to the birth date.
22. Similarly, Headmaster PW9 Sajid Ansari serving with the Municipal Corporation Urdu Girls' Primary School, Akola is also cross examined. He admitted that the original record in "Urdu Script" was not prepared by him. He has further admitted that the birth date mentioned in the school record is .....13/-
Judgment apeal837.22.odt 14 on the basis of oral information given by parents of the student.
23. Thus, the birth date of the victim is mentioned on the basis of the information given by the mother of the victim while admitting her in the school. Thus, it is clear that her age is attempted to be proved by the prosecution on the basis of the evidence of Headmaster PW9 Sajid Ansari.
24. Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules 2007 reads as under:
"12. Procedure to be followed in determination of age.
(1).....
(2).....
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
.....14/-
Judgment apeal837.22.odt 15
(a) (i)the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii)the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child."
25. The Hon'ble Apex Court in the case of Jarnail Singh vs. State of Haryana, reported in 2013 ALL MR (Cri) 2946 observed that, "even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime.
.....15/-
Judgment apeal837.22.odt 16 Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other .....16/-
Judgment apeal837.22.odt 17 material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat."
26. Thus, the evidence adduced by the prosecution, on the basis of the evidence of Headmaster PW9 Sajid Ansari, is in compliance with the provisions in view of Rule 12(3) Juvenile Justice (Care and Protection of Children) Rules 2007 and the evidence as to the age of the victim is not shattered.
27. To corroborate the age of the victim, the prosecution has also adduced the evidence of Medical Officer PW6 Dr.Chaitanya Kulkarni. As per his evidence, Casualty Department has received a requisition letter from the police for age determination of the victim and, therefore, she was referred to the Radiologist and then to the Dental Department and, thereafter, to the Forensic Medicine Department. He has received X-Ray requisition letter along with X-Ray Films, which is at Exh.89. The X-Ray Films were in custody of hospital authority and he also received a Dental OPD Paper and referral .....17/-
Judgment apeal837.22.odt 18 letter. On the basis of all these reports, he ascertained the age of the victim was above fourteen years and below sixteen years. Accordingly, he issued certificate Exh.92.
His cross examination shows that at the time of Dental Examination, he was not present. He explained that, "persons above fourteen years have their second molar erupted and the time of eruption of third molar having long span from eighteen years to forty years. In some cases, third molar does not erupt throughout life." He further admitted that the other developments of the girls depend upon diet, nutrition, heredity, and climate. It further came in his cross examination that ossification test is an accurate test. The opinion regarding the age is not conclusively. However, he stated that the opinion does not vary range of age.
28. Thus, as far as this opinion is concerned, which also shows that the victim was more than fourteen years, but less than 16 years of age, this medical evidence also corroborates .....18/-
Judgment apeal837.22.odt 19 fact that she was below eighteen years of age at the time of the incident.
29. Second ingredient to be proved to prove the offence of "kidnapping" is, as to person was "taken" or "enticed" without consent of such guardian.
30. The evidence of the mother of the victim PW1 shows that on the day of the incident, she along with two sons and another daughter, had been to her mother-in-law's house and the victim was alone at home. The victim started proceeding to her grandmother's house and on that way the accused met her and disclosed to her that her father met with an accident and she should accompany him and on the false pretext, he took her to Barshitakli and subjected her for forceful sexual assault. Her evidence further shows that the accused asked her to marry with him, to which she refused and, therefore, she was assaulted by the accused and there were injury marks on her person due to the assault. They noticed that the victim is not at the house and also has not approached to them at her .....19/-
Judgment apeal837.22.odt 20 grandmother's house and, therefore, they searched her, but they could not find her. On 27.8.2021, at about 2:30 pm, the accused brought the victim to Akola and they were found on Railway Track and witnessed by her son and, thereafter, the victim was brought to the home. After seeing brother of the victim, the accused fled away from the spot. Her evidence further shows that she accompanied the victim during her medical examination as well as when her statement was recorded by Medical Officer PW6 Dr.Chaitanya Kulkarni.
Her cross examination shows that the victim married prior to three months of her deposition. She denied that the victim was having one sided love affair with the accused.
31. The victim has also testified that on 26.8.2021, at about 6:00 pm to 7:00 pm, she was proceeding to her grandmother's house. On the way, she met with an accused who told her that her father has met with an accident and she should accompany him. Thereupon, he took her to Barshitakli by auto-rickshaw and took her to an isolated place in a .....20/-
Judgment apeal837.22.odt 21 building which was under construction. He assaulted her by means of wire and forcibly subjected her for sexual assault. On the next date, he brought her to Akola Railway Station whereat her brother has seen them. After seeing the brother of the victim, he fled away from the spot. Thereafter, when she came home, she was in a scared condition. She lodged the report on 28.8.2021, which is at Exh.22 and the FIR is at Exh.23. She was also referred for medical examination. Her medical examination was carried out. Her statement was recorded before the Magistrate.
Her cross examination shows that she was not knowing the accused prior to the incident. However, she was aware that he was residing in the said locality.
32. The entire cross examination of the victim nowhere shows that it was the victim who joined the company of the accused voluntarily and, thereafter, the accused took her. The cross examination was also taken to show that she was having an opportunity to inform the police. However, she has .....21/-
Judgment apeal837.22.odt 22 specifically stated that no police patrolling vehicle arrived at the spot of the incident. She has also stated that the persons, on the next day, present at the spot, have seen them. She specifically stated that she is not aware where police station is situated at Barshitakli. She did not see any crowd at Akola Bus Stand.
Thus, the entire attempt, that she was having an opportunity to disclose the incident, is denied by her during the cross examination.
33. The evidence of the brother of the victim PW3 also shows that when he was searching his sister, on the next day, he has seen her as well as the accused at the Railway Track, Akola and after seeing him, the accused ran away.
Despite his cross examination, nothing is brought on record to show that the victim has joined the company of the accused voluntarily.
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Judgment apeal837.22.odt 23
34. These all witnesses, though are cross examined, nothing incriminating came on record to shatter their evidence as far as "taking" or "enticing" is concerned.
35. "Taking" or "enticing" away a minor out of keeping of lawful guardian, is an essential ingredient of the offence of "kidnapping."
36. The evidence on record sufficiently establishes that the accused solicited the victim to come along with him on the pretext that her father has met with an accident. The victim categorically stated that though she was not acquainted with the accused, she was knowing him as he was residing in the same locality, which may be the reason for her to trust his words and to go along with him.
37. The ingredients of "taking" or "enticing" are dealt with by the Hon'ble Apex Court in the case of S.Varadrajan vs. State of Madras, reported in 1965 AIR 942 wherein it has been held that, "there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not .....23/-
Judgment apeal837.22.odt 24 synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code."
It has been further held that, "taking" or "enticing" away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.
38. Thus, the evidence on record sufficiently shows that the victim was taken by the accused without knowledge of her parents and, therefore, the prosecution has established the offences under Sections 363 and 366 of the IPC.
39. Now, let us examine the evidence of the victim and whether corroboration to the evidence of the victim is required.
40. The victim has categorically narrated about the incident that the accused met her, when she was proceeding to her grandmother's house, and on the pretext of taking her .....24/-
Judgment apeal837.22.odt 25 towards her father, as her father met with an accident, took her to Barshitakli in an isolated place in a building, which was under construction, and subjected her for forceful sexual assault. She specifically stated that throughout the night, she was subjected for forceful sexual assault by the accused by assaulting her.
During her cross examination, the accused has come with a case that she was having one sided love affair with the accused, to which she has denied.
Another attempt was made to show that though she was taken at the Bus Stand by the accused, she has not disclosed the incident to anybody. Admittedly, she has stated that while she was leaving the spot of the incident, persons present there saw her. Admittedly, the victim was fourteen years girl. She was threatened by the accused and at the relevant time, except the accused, there was no person along with her to whom she was having trust and, therefore, she has not disclosed anything to anybody. She has specifically stated .....25/-
Judgment apeal837.22.odt 26 that she was threatened and also assaulted by the accused on earlier day and, therefore, her apprehension of assault again by the accused could be a reason for her not to disclose the incident to anybody. She has specifically stated that she did not see any police station between Bus Stand and Railway Track, Akola. She was not aware whether there was any police station at Barshitakli.
Thus, she has sufficiently explained what was reason for her not to approach the police station and not to disclose the incident to anybody.
41. To corroborate the version of the victim, her mother PW1 and brother PW3 were examined. They disclosed about the disclosure by the victim after the incident when she was brought by her brother at the house.
42. The evidence of Medical Officer PW5 Dr.Shubham Sapkal is also material, which shows that the victim has narrated the history to him when she was referred for medical examination. He examined the victim in presence of .....26/-
Judgment apeal837.22.odt 27 Gynaecologist Dr.Shahana. On medical examination, he found "blunt trauma' on her right fore-arm. He has collected forensic samples of the victim; sealed the same; and handed it over to the concerned police official. The possibility of sexual assault and criminal force was there. Accordingly, he prepared medical report, which is at Exh.83. He has also opined that injury observed by him may be caused by an electric wire.
During the cross examination, he has stated that at the time of examination, a single injury is found on the person of the victim. He further stated that the "blunt trauma" is an injury over body caused by any object which will not produce any injury like laceration of skin or bleeding.
During the cross examination, no any other suggestion is given to show that there was any other reason for causing such type of injury. He has admitted that if a wire is used, such kind of injury may be inflicted. He has further stated that he cannot make a statement that only this wire can cause such kind of injury.
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Judgment apeal837.22.odt 28
43. Thus, the oral evidence of the victim as to assault by wire and injury on her person is corroborated by Medical Officer PW5 Dr.Shubham Sapkal also.
44. The evidence of the brother of the victim PW3 shows that he has witnessed the victim in the company of the accused at Railway Track, Akola and, thereafter, he brought the victim at house and the accused fled away from the spot.
45. It is not defence of the accused that out of love affair, the victim joined his company. On the contrary, a suggestion was given that it was she who was having one sided love affair with the accused. If that is so, there is no reason for the accused to accompany her at Barshitakli or even at the Railway Track.
46. On appreciation of the evidence, question is, whether testimony of the victim can be relied upon for basing the conviction.
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Judgment apeal837.22.odt 29
47. The Hon'ble Apex Court, in the case of Radheshyam vs. State of Rajasthan, reported in MANU/SC/0135/2014, has laid down law regarding appreciation of evidence of child witness. Paragraph No.12, which reads as under:
"12. In Panchhi & Ors. v. State of U.P. and ors, reported in MANU/SC/05530/998, after reiterating the same principles, this Court observed that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness is an easy pray to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and .....29/-
Judgment apeal837.22.odt 30 understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness's evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. We will scrutinize PW-2 Banwari's evidence in light of the above principles."
48. Thus, as far as corroboration is concerned, the evidence of PW4 Suraj Londhe, who acted as a pancha, also shows that the victim has shown the spot of the incident, which was under construction building. In their presence, the police inspected it and seized a blue wire from the spot of the incident.
Thus, the evidence of the pancha witness also shows that the said wire was seized from the spot of the incident. This pancha witness has not cross examined on the fact of finding of the wire at the spot of the incident. Thus, finding of the wire at the spot of the incident remained unchallenged.
.....30/-
Judgment apeal837.22.odt 31
49. Similarly, the evidence of Investigating Officer PW8 Sanjivani Pundage also shows that it was the victim who has shown the spot of the incident to him. At the spot of the incident, in presence of panchas, he has seized blue colour wire and drawn the panchanama. The said wire was referred to Medical Officer PW5 Dr.Shubham Sapkal for obtaining an opinion and PW5 Dr.Shubham Sapkal has given his opinion that the injury on the person of the victim is possible by the said wire. The nature of injury was abrasion with contusion on right fore-arm.
50. Thus, the evidence of the victim, that she was taken to an under construction building and the accused asked her to marry with him to which she refused and on that the accused assaulted her by means of wire due to which she sustained the injury on her fore-arm, is corroborated by the fact that the wire was found at the spot of the incident and the medical opinion given by the Medical Officer is that the injury is possible by the said spot.
.....31/-
Judgment apeal837.22.odt 32 The finding of the wire at the spot is not challenged by the investigating agency.
51. It is not the defence of the accused that the victim is a tutored witness. Even, there is no suggestion that there is any reason for her to falsely implicate him due to any enmity.
52. As a rule of prudence, let us find out whether the evidence of the victim is corroborated by other witnesses.
53. As already observed, admittedly, at the time of the incident, she was fourteen years girl and her age is proved by the prosecution. The victim has disclosed the incident as soon as she met her brother at the Railway Track, Akola. Even, if it is accepted that she was having one sided love affair with the accused, there is no reason for the accused to accompany her and took her to Barshitakli, which is far away from Akola. Even, if the evidence of the prosecution is accepted, in the light of the defence that she was having one sided love affair with the accused, there is also no reason for the accused to accompany her when he was not having any feelings for her.
.....32/-
Judgment apeal837.22.odt 33 Moreover, her consent is not relevant. The evidence as to her age is not only corroborated by ossification test but also by the evidence of Headmaster of the School PW9 Sajid Ansari and nothing is on record to falsify the version that the birth date narrated at the time of admitting her in the school was not genuine one.
54. Thus, considering the entire evidence on record, admittedly, it shows that the victim was below eighteen years of age. She was taken by the accused, when she was approaching her grandmother's house, on a false pretext and, thereafter, subjected her forceful sexual assault.
55. The main contention of the accused, that after the said incident, within a short span of time, the victim performed marriage with DW2 Javedkhan Lalakhan and to establish the said fact, the defence relied upon the evidence of DW1 Abdul Mahemood working as teacher at 'Mothersa," whose evidence shows that on 22.1.2022 the marriage of DW2 Javedkhan and the victim was performed by him at the "Mothersa." The .....33/-
Judgment apeal837.22.odt 34 victim has told her age as nineteen years and Javedkhan has told his age as twenty one years. He has proved "Nikahnama" Exh.137. His cross examination shows that he has no age proof of bride and bridegroom to show that on the day of "Nikahnama" they were major. He has not taken any documents to show that on the day of the "Nikahnama", they both were major. He has further admitted that "Mothersa" is place of imparting education to children.
56. In the light of this cross examination, the act of DW1 Abdul Mahemood of performing the marriage itself is illegal. Moreover, he has performed the marriage without obtaining any documents to show that the victim was major on the day of the marriage. Whereas, the victim has denied the said marriage with said DW2 Javedkhan.
DW2 Javedkhan has also stated that his marriage was performed with the victim. He stated that on 20th, he eloped with the victim and on 22nd, his marriage was performed. He has also admitted that except Aadhar Card, he has no other .....34/-
Judgment apeal837.22.odt 35 documents to show that the victim was major on the day of the marriage.
DW3 Sheikh Juber, who is resident of the same locality where the victim is residing, stated that he was present at the time of "Nikah".
Even, accepting this incident as a proof, learned defence counsel also could not show how this evidence is helpful to the accused to prove that the victim was major and, therefore, the marriage was performed. The evidence of all these witnesses shows that they do not have any documents to show that the victim was major on the day of the marriage with Javedkhan. On the contrary, the evidence of prosecution witnesses, beyond reasonable doubt, proves that the victim was minor at the time of the incident and she was subjected for the forceful sexual assault by the accused.
57. Another contention of learned counsel for the accused was that, the evidence of the victim is not .....35/-
Judgment apeal837.22.odt 36 corroborated as no single injury was found on the person of the victim.
58. Admittedly, the victim was taken by the accused on 26.8.2021. On the next day, i.e. 27.8.2021, she was found by her brother. The FIR was lodged on 28.8.2021 and, thereafter, she was referred for medical examination. Thus, admittedly, her medical examination was not carried out immediately after the incident.
59. It is now well settled that absence of injury on the person of the victim does not lead to an inference that the accused has not committed forcible sexual intercourse on the victim. Absence of mark of injuries on the person of the victim cannot be adopted as formula to disbelieve the version of the victim. It will all depend upon the facts and circumstances of each case. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of the consent on her part. The absence of visible marks of injuries on the person of the prosecutrix on the date .....36/-
Judgment apeal837.22.odt 37 of her medical examination would not necessarily mean that she has not suffered any injury or that she has offered no resistance at the time of commission of the offence.
60. In State of Tamil Nadu vs. Ravi @ Nehru, reported in 2006 (10) SCC 534, the Hon'ble Apex Court ruled that "rape" is crime and not a medical condition. "Rape" is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the "rape" has occurred or not is a legal conclusion, not a medical one. That is the reason why, even the opinion of the doctor that there was no evidence of sexual intercourse or rape and held to be not sufficient to disbelieve the accusation of the "rape" by victim.
61. In the light of the above discussion, in the present case, allegations made by the victim are against the accused. No reason has come forward for false implication. Though it was suggested that the victim was having one sided love affair .....37/-
Judgment apeal837.22.odt 38 with the accused, the evidence is contrary which shows that it was the accused who took the victim on the pretext that her father met with an accident. The said fact is further corroborated by the victim's mother PW1 and brother PW3. There is no other reason brought on record showing any ill- intention for the victim and her parents to implicate the accused. Even there is no case that there was any type of enmity between the victim and the accused and, therefore, there is a reason for the victim to implicate him falsely.
62. The defence has not disputed the fact that the victim was along with the accused. The only defence taken is that, as she was having one sided love affair with the accused, she was along with the accused. Whereas, the victim categorically stated that she was taken by the accused on the pretext that her father met with an accident and she should accompany him and, thereafter, she was taken to an isolated place in a building, which was under construction, and subjected her for forceful sexual assault. At the relevant time, the victim was only fourteen years of age. Her consent, admittedly, was not .....38/-
Judgment apeal837.22.odt 39 relevant. She was subjected for the sexual assault. Nothing is on record to show that the victim has any alternative motive to implicate the accused in a false case. The accused, who is twenty one years old, is in authoritative position. He was resident of the same locality. The victim trusted him as he disclosed her that her father met with an accident and, therefore, he was under obligation to protect her. However, he betrayed the trust and subjected her for the forceful sexual assault. The evidence adduced by the defence by examining the defence witnesses to state that after the incident, within a short span of time, she married and, therefore, inference is to be drawn that she has attended the age of majority, is not helpful to the defence. Even accepting that the victim is married with one Javedkhan, it would not be sufficient to show that she has attended the age of majority when all three defence witnesses have admitted that they have no documentary evidence to show that the victim has attended the age of majority.
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Judgment apeal837.22.odt 40
63. The basic principle of criminal jurisprudence is that, the prosecution must establish guilt of the accused by cogent and reliable evidence and the burden always rests upon the prosecution to prove guilt beyond all reasonable doubts.
64. The same principle is applicable to cases of criminal offences against persons of tender age. The presumption under Section 29 of the POCSO Act is not rebutted by the accused.
65. After applying all tests, nothing is on record to show that there was any ulterior motive to implicate the accused falsely. The evidence of the victim is inspiring confidence and also corroborated by other evidence.
66. In the light of the foregoing discussion, no infirmity can be found in the judgment impugned in the appeal. However, it is apparent that learned Judge of the trial court has convicted the accused under the provisions of the IPC i.e. under Section 376(3) of the IPC and under Section 4 of the POCSO Act without considering Section 42 of the POCSO.
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Judgment apeal837.22.odt 41
67. Section 42 of the POCSO Act deal with alternative punishment, which reads as under:
"42. Alternate punishment.-- Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, [376A, 376AB, 376B, 376C, 376D, 376DA, 376DB], [376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000 (21 of 2000)], then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree."
68. Under Section 376 of the IPC, minimum punishment provided is ten years, but maximum punishment can be imprisonment for life and also fine. Expression, "but which may extend to imprisonment for life" occurs under Section 376 of the IPC after a "coma". It, therefore, has to be held that this expression is disjunctive and while so, while awarding punishment and that too, the maximum punishment, learned Judge is required to pause, weigh the aggravating as well as mitigating circumstances, think and then impose punishment.
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Judgment apeal837.22.odt 42
69. By now, it is well settled that maximum punishment should not be awarded as a matter of course.
70. In view wide discretion vested with the courts through judicial decisions, it has been held that punishment should be imposed on an accused after weighing mitigating as well as aggravating circumstances.
71. In Bavo @ Manubhai Ambalal Thakore vs. State of Gujarat, reported in AIR 2012 SC 979, the accused is held guilty under Section 376(2)(f) of the IPC for committing rape on seven years old girl and was awarded life imprisonment by the trial judge and confirmed by the High Court. The Hon'ble Apex Court observed that, "considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by .....42/-
Judgment apeal837.22.odt 43 imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years."
72. The only question requires consideration is that, whether the conviction of the accused ought to have been recorded under the IPC or the Special Law or both.
73. Section 42, reproduced above, and 42-A of the POCSO Act would be relevant to adjudicate this issue. Section 42A of the POCSO Act is reproduced as under:
"42A. Act not in derogation of any other law.-- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency."
74. A bare perusal of Section 42A of the POCSO Act makes it clear that when the alleged acts or omission constitute offence both under the IPC and the POCSO Act, the .....43/-
Judgment apeal837.22.odt 44 law which prescribes punishment of greater degree would have to be applied.
75. Section 42 and Section 42A of the POCSO Act are in completely different spheres. Section 42 specifically deals with the quantum of punishment mandating that when a particular act or omission constitutes an offence, both under the POCSO Act and also under the provisions of the IPC or the Information Technology Act, 2000 then, the offender found guilty of the offence would be liable to punishment under the POCSO Act or under the provisions of the IPC whichever provides a punishment of a greater degree.
76. Thus, under these provisions, the courts have been given discretion to award punishment either under the POCSO Act or under the provisions of the IPC. However, considering Section 42 of the POCSO Act, it makes clear that when the alleged acts or omissions constitute offence both under the IPC and the POCSO Act, the law which prescribes the punishment of greater degree would have to be applied and, therefore, the .....44/-
Judgment apeal837.22.odt 45 conviction of the accused for offence under Section 376(3) of the IPC is justified. However, the conviction cannot be justified under the provisions of the IPC and the POCSO Act. Since Sections of the IPC provide for higher sentence as compared to Section 3 or 4 of the POCSO Act, learned Judge of the trial court ought to have convicted the accused in terms of Section 42 of the POCSO Act. Admittedly, minimum punishment provided under Section 376 of the IPC is greater than the minimum punishment provided under Section 4 of the POCSO Act. Section 376 of the IPC deals with punishment for "rape,"
which is reproduced as under:
"376. Punishment for rape.
(1) Whoever, except in the cases provided for in sub-
section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever--
(a) being a police officer, commits rape,
(i) within the limits of the police station to which such police officer is appointed; or .....45/-
Judgment apeal837.22.odt 46
(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or .....46/-
Judgment apeal837.22.odt 47
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape, on a woman incapable of giving consent; or
(j) being in a position of control or dominance over a woman, commits rape on such woman; or
(k) commits rape on a woman suffering from mental or physical disability; or
(l) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(m) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. Provided that such fine shall be just and reasonable .....47/-
Judgment apeal837.22.odt 48 to meet the medical expenses and rehablitation of the victim.
Provided further that any fine imposed under this sub-section shall be paid to the victim. Explanations (1) For the purposes of sub-section 2
(a) "armed forces" means the naval, military and air forces and includes any member of the Armed Forces constituted under any Law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government, or the State Government;
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861;
(d) "women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children."
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Judgment apeal837.22.odt 49
77. Thus, under this provision, the courts have been given discretion to award punishment of sentence of minimum ten years or imprisonment for life where the sentence awarded in the discretion of the courts is for life. The same shall be the imprisonment for the remainder of the person's natural life. Hence, there is no mandate of law that under these provisions, the convict must be awarded life imprisonment.
78. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence, that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each cases. The theory behind awarding the sentence is that wrong doer is to be deterred from committing .....49/-
Judgment apeal837.22.odt 50 a similar crime. Sometimes, the sentence is awarded looking to the desirability of keeping the accused out of circulation i.e. the preventive theory and sometimes the reformative theory or the retributive theory is to be applied.
79. Thus, the measure of punishment in a given case must depend upon the nature of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. Showing undue sympathy and imposing inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts do not protect the victim, the victim will lose the faith in the judicial system and, therefore, .....50/-
Judgment apeal837.22.odt 51 awarding lesser punishment when the offence is proved, would affront to the society. Therefore, it is the duty of the every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed and the circumstances of the offender. The object of sentencing to see that the crime does not go unpunished and the victim of the crime as also the society have the satisfaction that the justice has been done to it.
80. While considering the case involving the offences under the POCSO Act as well as under the provisions of the IPC, i.e. Section 376 of the IPC and the punishment in view of Section 42 of the POCSO Act, which states that the law which prescribes the punishment of greater degree would have to be applied. The penal code prescribes the maximum punishment for "rape" as imprisonment for ten years which may extend to life. Thus, legislative's intent is that in extreme cases of "rape" the sentence to be imposed should be of imprisonment for life. Obviously, in cases less than the extreme, the sentence should be less. What would be instances of extreme cases of "rape";
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Judgment apeal837.22.odt 52 first and foremost would be the acts of brutality which may accompany a "rape".
Second would the "trauma" inflicted other than the "trauma" of "rape", e.g. where the "rape victim" is beaten and threatened with death etc...
Third would be, whether the offender is in a dominating position and breaches the confidence of the victim, e.g. in near relation of the victim being the offender.
81. In this background, considering the circumstances under which the alleged incident has taken place, the tender age of the accused at the time of incident and the case would not cover under the extreme circumstances, we feel that the ends of justice would be served by reducing the sentence of life imprisonment awarded by learned Judge of the trial court to the accused for offence under Section 376(3) of the IPC and to a term of ten years.
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Judgment apeal837.22.odt 53 Similarly, maximum punishment awarded, for offences under Sections 363, 366, and 506 of the IPC, is without assigning any reasons. Therefore, the said punishment is also required to be reduced.
82. In view of the above, we, therefore, dispose of the appeal by modifying the sentence as per order below:
ORDER (1) The criminal appeal is partly allowed.
(2) The judgment and order of conviction and sentence dated 20.10.2022 passed by learned Extra Joint District Judge and Additional Sessions Judge, Akola in Special (POCSO) Case No.133/2021 is hereby modified.
(3) The accused is convicted for offence under Section 363 of the IPC and sentenced to suffer rigorous imprisonment for 5 years and to pay fine Rs.5000/-, in default, to suffer further simple imprisonment for 3 months.
.....53/-
Judgment apeal837.22.odt 54 (4) The accused is convicted for offence under Section 366 of the IPC and sentenced to suffer rigorous imprisonment for 5 years and to pay fine Rs.5000/-, in default, to suffer further simple imprisonment for 3 months.
(5) The accused is convicted for offence under Section 376(1) of the IPC and sentenced to suffer rigorous imprisonment for 10 years and to pay fine Rs.50,000/-, in default, to suffer further simple imprisonment for 3 months. (6) The accused is convicted for offence under Section 323 of the IPC and sentenced to suffer rigorous imprisonment for 1 year and to pay fine Rs.1000/-, in default, to suffer further simple imprisonment for 1 month.
(7) The accused is convicted for offence under Section 506 of the IPC and sentenced to suffer rigorous imprisonment for 2 years and to pay fine Rs.5000/-, in default, to suffer further simple imprisonment for 3 months.
.....54/-
Judgment apeal837.22.odt 55 (8) In view of Section 42 of the POCSO Act, no separate sentence is required for offences under Sections 3 and 4 of the said Act.
(9) All the sentences shall run concurrently. (10) As the accused is in jail since 28.8.2021, set-off under Section 428 of the CrPC be given to him.
(11) Muddemal property being worthless be destroyed after the appeal period is over.
Appeal stands disposed of.
JUDGE JUDGE
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge .....55/-
Date: 08/05/2026 10:30:46