Bombay High Court
Rahul Ganeshrao Gathe vs State Of Mah. Thr. Pso Sarmaspura ... on 17 January, 2026
Author: Anil L. Pansare
Bench: Anil L. Pansare
2026:BHC-NAG:724-DB
1 jg.cri.appeal 744.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
Criminal Appeal No. 744 of 2022
Amended Rahul Ganeshrao Ghate Gathe
As per Aged - 34 years, Occ. :- Labour,
Court's R/o Nijampur, Tq. Achalpur,
order dtd. Distt. Amravati. ... Appellant
20.11.2022
- Versus -
State of Maharashtra,
Through Police Station Officer,
Sarmaspura, Achalpur,
Tq. Achalpur, Distt. Amravati. ... Respondent
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Mr. Nalin Majithia, Advocate (Appointed) for the appellant
Mr. A. B. Badar, APP for the State/respondent
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CORAM : ANIL L. PANSARE AND
NIVEDITA P. MEHTA, JJ.
Date of reserving judgment : 09-01-2026
Date of pronouncing judgment : 17-01 2026
JUDGMENT (Per : ANIL L. PANSARE, J.)
The appellant is aggrieved by the judgment and order dated 8-3-2022 passed by learned Sessions Judge, Achalpur in Special Case No. 151/2019 thereby convicting him for the offence punishable under Section 376 (AB) of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'). The appellant has been sentenced to life imprisonment and also fine. As such, appellant was charge-sheeted for the offence 2 jg.cri.appeal 744.2022.odt punishable under Sections 376(3) and 376 (AB) of the IPC and Sections 4 and 6 of the POCSO Act, he has been, however, convicted for the offences mentioned above.
2. Briefly stated, the allegation against the appellant was that on 23-10-2019 at about 10.00 a.m., he committed rape on a minor (victim), aged below 12 years, which also amounts to aggravated penetrative sexual assault in terms of Section 6 of the POCSO Act. The victim was then 4 years 3 months old.
3. The case of the prosecution is that on 23-10-2019, around 9:30 to 10:00 a.m., the victim told her mother, P. W. 1 that she wanted to go to play at the house of "Tinu Dada" - the son of the accused. P.W. 1 objected, telling victim that Tinu was not at home and she should not go, but the victim still went alone to the accused's house, which was adjacent to her own. P.W. 1, who was cleaning her house, heard the cries and shouted to ask what had happened. The accused then brought the crying victim back to her mother. When P.W. 1 asked what happened, the accused said: "Your daughter fell down in the house" and then left. Shortly after, when victim tried to urinate, she felt discomfort. P.W. 1 checked and found blood coming from her private part and blood stains on her knicker. A neighbour, Sheela, came over and said she also heard the cries and had gone to the accused's house but found the door 3 jg.cri.appeal 744.2022.odt closed. P.W. 1 called her husband from the field. A relative, Dhandevi, along with one Sachin, took the victim on a motorcycle to Government Hospital, Achalpur. On 26 October 2019, around 12:00 p.m., the victim went to her aunt Pallavi's house to play. Pallavi said "don't play, you'll fall again". The victim then disclosed : "That day I didn't fall. That day when I went to Tinu's house, Tinu's father was alone. He closed the door from inside and did something to my private part". Pallavi informed Dhandevi, who then told P.W. 1 and her husband. P.W. 1 questioned the victim, who repeated the same account. P.W. 1 then lodged First Information Report (FIR), Exhibit 18.
4. The investigation was taken up by P.W. 8 Nilima Satao. She collected evidence, arrested appellant and filed charge-sheet. The appellant pleaded not guilty. The prosecution examined 10 witnesses to bring home his guilt. The defence is of false implication because of prior quarrel on account of appellant's goats eating/damaging informant's grain. In support, the appellant has examined his wife as defence witness. The trial Court considered the material placed before it and held appellant guilty of the offence. The said finding is challenged before us.
5. We have heard Mr. Nalin Majithia, learned appointed counsel for the appellant and Mr. A. B. Badar, learned Additional Public 4 jg.cri.appeal 744.2022.odt Prosecutor (APP) for the State/respondent. We have gone through the evidence, documents, impugned judgment etc. We will refer to the same to the extent necessary to decide the following points that arise for our consideration. We have recording our findings thereon for the reasons to follow.
Points Findings
1. Whether the prosecution proved that In the affirmative.
on 23-10-2019, appellant committed
rape on victim, who was aged below
12 years ?
2. Whether the prosecution proved that In the affirmative.
on that day, appellant committed an
aggravated penetrative sexual assault
on minor victim, aged about 4 years
3 months ?
3. Whether interference is called for In the negative.
in the impugned judgment ?
4. What order ? Appeal is dismissed.
5 jg.cri.appeal 744.2022.odt
As to point nos. 1 to 3
6. The points are interlinked and hence decided by common reasons. Before we refer to the testimony of all the witnesses, it will be appropriate to go through the ingredients of offences for which appellant has been convicted.
7. Section 376-AB of IPC reads as under.
"376-AB. Punishment for rape on woman under twelve years of age. - Whoever, commits rape on a woman under twelve 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 with fine or with death:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim.
Provided further that any fine imposed under this section shall be paid to the victim."
The prosecution was under obligation to prove that in terms of above provision, the appellant committed rape on a minor under twelve years of age. For the purpose of present case, the definition of 'rape' as spelt out in clause (b) of Section 375 is relevant which provides that a man is said to commit "rape" if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any 6 jg.cri.appeal 744.2022.odt other person. The testimony of victim indicates that appellant attempted to insert object in her vagina.
8. As regards ingredients of aggravated penetrative sexual assault under the provisions of the POCSO Act, one will have to first understand meaning of 'penetrative sexual assault'. Section 3(b) of the POCSO Act provides that a person is said to commit "penetrative sexual assault" if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person."
9. 'Aggravated penetrative sexual assault' is defined under Section 5 of the POCSO Act which inter alia includes penetrative sexual assault on a child below 12 years. Section 6 of the POCSO Act provides for punishment for aggravated penetrative sexual assault, which shall be not less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.
10. Keeping in mind the above provisions, we will go through the testimony of witnesses. P.W. 1 is mother of victim. She deposed that her daughter was born on 24-3-2015. At the time of incident, she was aged 4 years 7 months. She said that incident occurred on 23-10-2019 7 jg.cri.appeal 744.2022.odt (refer evidence of P.W. 1 in vernacular language) between 9.00 to 10.00 a.m. She was working in her house. Victim informed her that she is going out to play and will go to the place of Tinu Dada (son of appellant). She informed her that Tinu is not in house and she should not go. The victim, however, went to the house of Tinu, who was residing in adjacent house. She then said that victim went to play in the house of appellant. She heard victim's loud cry. She enquired loudly as to what happened. Appellant brought victim to her house. Victim was crying. She enquired with appellant as to what happened. He said that victim fell down. She then deposed that her daughter urinated and blood came out from her private part. She saw her private part bleeding and also saw blood on her knicker. At that time, another neighbour Sheela came to her and said that she also heard victim's crying voice. Sheela said that door of appellant's house was closed when she heard the cry of victim. Thereafter P.W. 1 called her husband. One Dhandevi (P.W. 2) took victim to the Government Hospital, Achalpur. P.W. 1 and her husband also reached the hospital. Doctor examined victim. Doctor enquired as to what had happened to her daughter. P.W. 1 informed him of what appellant said. Doctor treated the victim. They all came back.
8 jg.cri.appeal 744.2022.odt
11. Her evidence further indicates that victim informed incident to her aunt Pallavi, who is daughter-in-law of P.W. 2, wherefrom she came to know that victim did not fall down on that day but appellant inserted something in her private part. Pallavi informed it to Dhandevi who passed on to informant, P.W. 1. Thereafter P.W. 1 enquired with victim. She narrated incident to her. P.W. 1 went to police and lodged report, Exhibit 18.
12. In the cross-examination, a case is put up that whatever has been stated by P.W. 1 is false. All the suggestions are denied by her. A case was also put up that there occurred quarrel between her and wife of accused on account of damage caused to her food grains by the goats of accused. She denied the said suggestion as well. She admitted that she did not discuss filing report with her husband or any one else before hand. She also admitted that the victim could wear and remove clothes herself.
13. P.W. 2 is Dhandevi, the neighbour/relative of P.W. 1, who took victim to hospital. Her evidence show that on 23-10-2019, she was called by P.W. 1. She saw bleeding from victim's private part. She took her to hospital. On 26-10-2019, victim came to her house. Pallavi informed her to not play, else she may fall again. Victim said that on that day, she did not fall, Tinu's father was alone, he closed the door 9 jg.cri.appeal 744.2022.odt and did something to her private part. Pallavi informed it to P.W. 2, who in turn informed it to P.W. 1 and her husband. In the cross-examination, the story narrated by victim is shown to be omission. This omission may be because the victim had narrated incident to Pallavi and she informed it to P.W. 2. In any case, it is hearsay evidence and will be of no significance. She admitted that she had been to police station with P.W. 1 to file report. She denied the case put up by defence that appellant is falsely implicated due to goat related dispute.
14. P.W. 3 is a panch witness to the spot, seizure of blood sample of accused, clothes of victim etc. In the cross-examination, except for suggestions, there is nothing material.
15. P.W. 4 is Medical Officer. She examined victim on 26-10-2019. She found tenderness and odema (swelling) on her vagina. She noted history of bleeding since 23-10-2019. She opined that the tenderness and odema to vagina might be trial of forceful intercourse. In the cross-examination, she deposed that she had taken history of incident from victim's mother. She also enquired about the history of incident from the victim but she did not say anything. She admitted that her opinion is not conclusive. She further admitted that there were no marks of any injury on the body of victim. She also admitted that in such cases, there is possibility of injury on other parts 10 jg.cri.appeal 744.2022.odt of body as also on the body part of the person attempting to force himself. She deposed that no injury was found on the private part of the appellant. She also admitted that injury can be caused while playing. She did not enquire about whether victim fell down. She admitted that victim was walking normally on that day.
16. P.W. 5 is the star witness viz. the victim. She deposed that in Diwali Holidays, she went to play to house of Tinudada. Appellant was present in the house. He closed the door. He inserted something in her private part. She started crying, therefore, he brought up to her mother. She was taken to hospital. In the cross-examination, the case put up by defence was denied. It is, however, brought on record that she has stated to Doctor what has happened in the incident. She further stated that she can wear and take off her clothes.
17. P.W. 6 is panch witness to sealing of blood and seizure of mobile chip. His testimony is not of much relevance.
18. P.W. 7 is Pallavi, victim's aunt. She deposed that on 26-10-2019, victim came to her house. She (P.W. 7) informed her not to play, else she will fall again. To which, victim replied that she did not fall down the other day but Tinu's father inserted something in her 11 jg.cri.appeal 744.2022.odt private part. Her evidence on incident is hearsay but is relevant, if read with testimony of P.W. 2 and P.W. 1.
19. P.W. 8 is the Investigating Officer, who investigated the crime, collected birth certificate, Exhibit 54, send samples to FSL, obtained reports (Exhibits 57 and 58), recorded statements of witnesses and filed charge-sheet. He admitted that witnesses were not aware of exact spot of incident. According to appellant, P.W. 8 could not explain delay in recording statements of some of witnesses.
20. P.W. 9 is a Doctor. He is Pediatrician. He treated victim on 23-10-2019 for bleeding from vagina. He advised injection of Titanus to victim, may be because victim said that something was inserted in her vagina. He referred the victim to District Woman Hospital, Amravatifor expert opinion. In the cross-examination, he admitted that he did not take history from victim or relatives. He deposed that he cannot state whether injuries were serious or not.
21. P.W. 10 is the one who recorded victim's statement and FIR on 26-10-2019. This is how prosecution led evidence to prove its case.
22. We have minutely gone through the evidence. The testimony of P.W. 1, P.W. 2, P.W. 5 and P.W. 7, if read with testimony of 12 jg.cri.appeal 744.2022.odt two Doctors i.e. P.W. 4 and P.W. 9, the picture becomes clear. What transpires is that on 23-10-2019, the victim went to the house of Tinu, the son of appellant. P.W. 1 was aware that Tinu was not in the house and advised her not to go. The victim child, however, unaware of what would happen, went to the house of appellant. The appellant, taking advantage of the situation, closed the door and inserted something in her vagina. She started crying loudly. The loud cry was heard by P.W. 1 and another neighbour Sheela (not examined). Upon hearing loud cry, P.W. 1 enquired loudly as to what happened. The loud enquiry by victim's mother prompted the appellant to bring victim to her house. He then made up a story that victim fell down. He however, did not give any detail of where and how did she fall down. Nonetheless, P.W. 1 believed appellant and referred the victim to hospital through P.W. 2.
23. It was on 26-10-2019 when victim came to P.W. 2's house where P.W. 7 was present, who advised victim to not play saying that she will fall down again. Then victim narrated incident saying that on the other day, she did not fall but appellant was alone in the house, he closed the door and inserted something in her private part. Pallavi informed it to P.W. 2, who then informed the said fact to P.W. 1 and her 13 jg.cri.appeal 744.2022.odt husband. P.W. 1 again enquired with the victim and in response, victim narrated the incident. Thereafter police report was lodged.
24. Thus, there is a reason why FIR was not lodged on 23-10-2019 but was lodged on 26-10-2019. P.W. 1 got knowledge of incident only on 26-10-2019 and promptly reported the matter to police. The argument of appellant's counsel that there occurred delay in lodging FIR and therefore, case of prosecution is weakened, is without substance and is accordingly rejected.
25. P.W. 9's evidence also indicates that the matter was not taken up seriously. He also believed that injury occurred because victim fell down who complained of bleeding from vagina. The Doctor advised Titanus injection and gave certain tablets. He referred the victim to District Woman Hospital, Amravati for expert opinion. P.W. 4 examined the victim on 26-10-2019 viz. subsequent to lodging FIR. She found tenderness and odema on vagina with history of bleeding since 23-10-2019. She opined that there might be trial of forceful intercourse. Her evidence in cross-examination that her opinion is not conclusive, will be of no help to the appellant to argue that the tenderness and odema on vagina occurred for some other reason than what was attributed by victim. The opinion is given based on the medical examination and the nature of injury found on the private 14 jg.cri.appeal 744.2022.odt part of the victim. According to the Doctor, the injury was such that could occur because of forceful intercourse. Such opinion would neither mean that the injury indeed occurred because of forceful intercourse nor that someone made an attempt of forceful intercourse. The opinion is spelling out possibility of causing injury. Here, one will have to take into account the victim's version where she said that appellant attempted to insert something in her private part. She has not deposed that appellant attempted to force himself on her. The evidence indicates that appellant attempted to insert some object which resulted bleeding injury to vagina. One will have to also consider age of the victim and her ability to describe the object. She being minor, aged about 4½ years either has not seen the object or was unable to describe the same. She went to the house of appellant for playing. Her focus must be elsewhere when appellant attempted to insert something. That being so, absence of description of object is not fatal. Her testimony that appellant made an attempt to insert something will have to be thus accepted as an attempt to insert object, which resulted into bleeding injury. The loud crying of victim would further substantiate her version.
26. The case put up by the appellant that in such cases where force is used, there is possibility of injury on other parts of the body or that there is possibility of injury on the parts of body of male, who 15 jg.cri.appeal 744.2022.odt attempted to force is something that is presumptive in nature. The counsel presumed that appellant attempted to use force on the whole body of the victim and, therefore, there could be injuries on other part of victim as also appellant. Such argument is unacceptable. It is nobody's case that appellant forced himself on victim, rather, the case is otherwise viz. the appellant attempted to insert something. In the circumstances, there arises no question of victim sustaining other injuries or appellant sustaining injuries either on body or on his private part. The argument to that effect is devoid of merit and is rejected.
27. We may add here that the incident has occurred in the house of appellant and, therefore, he was under obligation to discharge burden in terms of Section 106 of the Indian Evidence Act. The prosecution has led foundation to that effect. The plea that victim fell down and sustained injury is unacceptable in absence of details at the hands of appellant. He has not shown the spot where victim fell down. He has not shown the object by which she sustained or could have sustained injury to her private part. Such failure of appellant to explain the facts which were within his exclusive knowledge will attract adverse inference against him.
28. In addition to the above, the appellant is faced with challenge under Section 29 of the POCSO Act which provides for 16 jg.cri.appeal 744.2022.odt presumption of committing offence under Sections 3, 5 (for which punishment is provided under Section 6), 7 and 9 of the Act where the person is prosecuted for committing such offence. It is well settled that the presumption, though statutory, will come into play only upon laying foundation by the prosecution. In our considered view, the testimony of witnesses discussed above has laid down foundation for presumption under Section 29 of the POCSO Act. In fact the testimony is self sufficient to attract ingredients of both the offences viz. Section 376-AB of IPC and Section 6 of the POCSO Act.
29. The defence has not rebutted the presumption though appellant made an attempt to do so. He examined his wife. She deposed that the house of P.W. 1 is located behind her house. Thus, the fact that appellant was residing adjacent to P.W. 1's house is established. She deposed that her relations with P.W. 1 were not good. Her goats entered the compound of P.W. 1 and they consumed grains. She then deposed that there occurred quarrel between her husband and P.W. 1's husband and he threatened to see him. She then deposed that on 23-10-2019, victim had not come to her house for playing. In the cross- examination, she admitted that her younger son is 12 years old and his pet name is Tinu. It is then brought on record that she has no certificate 17 jg.cri.appeal 744.2022.odt to show that she owned goats. She then deposed that she did not lodge any report in respect of alleged quarrel and threat by P.W. 1's husband.
30. Learned APP has rightly argued that the testimony of D.W. 1 is nothing but an attempt to save her husband. Her story of goats entering compound and eating grains and of quarrel between two families is a bald statement, supported by no cogent evidence. Thus, appellant failed to rebut the presumption under Section 29.
31. Put altogether, the evidence of witnesses discussed above coupled with the presumption under Section 29 of the POCSO Act would sustain the finding of conviction rendered by the trial Court. The trial Court has considered all attending circumstances and rendered well reasoned findings.
32. The testimony of other witnesses needs no further discussion. Their role, which otherwise, is of corroboration is mentioned in earlier part of judgment. Thus, the prosecution successfully proved that appellant committed rape as well as aggravated penetrative sexual assault on minor victim, who was aged below 12 years. No interference is called for in the impugned judgment. Accordingly, point nos. 1 and 2 answered in affirmative and point no. 3 in negative.
18 jg.cri.appeal 744.2022.odt As to point no. 4
33. Having answered first three point in the manner herein above, there is no substance in the appeal. The appeal is dismissed.
34. The fees of learned counsel appointed for appellant shall be quantified and paid as per the rules.
(NIVEDITA P. MEHTA, J.) (Anil L. Pansare, J.)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge
Date: 17/01/2026 17:23:56