Bombay High Court
Sunil Chandrakant Misal vs State Of Maharashtra And Anr. on 24 February, 2026
2026:BHC-AS:12084
48-apeal147-23.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
VASANT
ANANDRAO
IDHOL CRIMINAL APPEAL NO.147 OF 2023
Digitally signed by
VASANT
ANANDRAO
IDHOL Sunil Chandrakant Misal,
Date: 2026.03.12
12:34:40 +0530 Age : 27, Occ : Service,
R/at Bapujibuwa Chowk,
Ramnagar, Warje, Malwadi, Pune
(At present in Yerwada Jail ...Appellant
..Versus..
1. State of Maharashtra,
Through P.S.O., Kothrud Police Station,
Pune.
2. Mrs.X.Y.Z.,
Through P.S.O., Kothrud Police Station,Pune. ..Respondents
Mr.Mohammed Juned, appointed Advocate for the Appellant.
Mr.Rishikesh M. Pethe, APP for the State - Respondent.
Mr.Aniesh S. Jadhav with Ms.Amisha Lolusare for Respondent
No.2.
CORAM : R.M. JOSHI, J.
DATE : 24TH FEBRUARY, 2026.
JUDGMENT :-
1. This appeal takes exception to judgment and order 1/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc dated 30/06/2022 passed by learned Sessions court in Pocso Special Case No. 446 of 2018, convicting the appellant for the offence punishable under section 363, 376(2)(j)(n), 506(1) of Indian Penal Code (IPC) and section 6 Protection of Children From Sexual Offence (for short "Pocso Act") Act and to undergo rigorous imprisonment along with fine.
2. The appellant challenges the said conviction and sentence by contending that the evidence of the prosecutrix is unreliable, further contending that she had voluntarily accompanied him, that medical evidence does not conclusively establish rape, and that he has been falsely implicated.
3. The facts of the case in a nutshell are as follows: -
It is the case of prosecution that prosecutrix was a minor girl at the time of the incident and studying in 8th standard and was residing with her parents and brother at Kothrud, Pune. On 16.07.2018, at about 6:30 a.m., the victim left her home to attend school in the usual school van. At about 12:40 p.m., the school van driver telephonically informed the victim's mother that victim had not come to the van after school 2/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc hours. The complainant, her husband and relatives commenced a search for the victim. They visited the victim's school and learned that she had attended school and had left the premises at about 12:20 p.m. along with her friends. However, thereafter, her whereabouts were unknown. She lodged a Missing Report (Exh. 37) at Erandawana Police Outpost under Kothrud Police Station.
4. On the basis of the said report, offence came to be registered and FIR (Exh. 38) was prepared. During investigation, on 20.07.2018, the police received information that the victim was staying at Daulat Lodge near Sinhagad Base along with the accused. The Investigating Officer proceeded to the said lodge and found the victim and accused together, both were brought to Kothrud Police Station. The victim's statement was recorded by a lady police officer and in view of the victim's statement, Section 376 IPC and Sections 3 and 4 of the POCSO Act came to be added. The accused was arrested and arrest panchanama (Exh. 104) was drawn and his arrest form was prepared (Exh. 105). The victim was referred for medical 3/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc examination and her medical report was obtained. The clothes of the victim and the accused were seized under separate panchanamas (Exhs. 56 and 57). The accused was also medically examined, and necessary samples were collected. The victim on 25.07.2018 pointed out the rooms at 3 different lodges, namely Lake Village Lodge, Chaitanya Lodge, and Daulat Lodge where she had stayed with the accused and a spot panchanama (Exh.
59) was prepared to that effect. The scooter of the accused was also seized from the parking area of Daulat Lodge. Statements of lodge staff and other witnesses were recorded. Call Detail Records (CDR) of the accused's mobile phone were obtained.
5. The victim's and complainant's statements under Section 164 of Cr.P.C. came to be recorded on 14.08.2018. The prosecution relied upon the birth certificate (Exh. 36) issued by Parola Municipal Council to establish that the victim was below 18 years of age at the relevant time, thereby attracting the provisions of the POCSO Act. After completion of investigation, charge-sheet came to be filed before the learned Court. 4/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 :::
48-apeal147-23.doc
6. Charge was framed against the accused. He abjured the charges and claimed trial. The prosecution examined 11 witnesses which are as follows to prove the culpability of the accused, those are as follows:
I. PW1 Yogan, (complainant-mother of the victim) -proved the Missing Report lodged (Exh. 37), F.I.R. (Exh. 38) and certified copy of Birth Certificate of victim issued by Parola Municipal Council (Exh. 36). So also she has supported the contents of her statement under Section 164 of Cr.P.C. (Exh. 39).
II. PW2 (Victim) III. PW3 Raju Jyotiram Kamble (panch witness) IV. PW4 Sadhu Gulab Bhalshankar (panch witness) V. PW5 Prashant Bandu Wani (victim's uncle) VI. PW6 Dr.Mahrukh Nazneen, (Medical Officer at Sassoon Hospital) VII. PW7 Chaitanya Kailas Jori VIII. PW8 Vasant Sahebrao Gole IX. PW9 Sambhaji Bhaskar Bhadke X. PW10 Payal Ameya Panchbhai (Second Investigating Officer) XI. PW11 Manmit Vilas Raut (First Investigating Officer) 5/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc
7. Apart from the oral evidence the prosecution placed reliance on following documentary evidence.
I. Statement of victim under Section 164 of Cr.P.C. (Exh. 48) II. Seizure panchanama of clothes of victim (Exh. 56) III. Seizure panchanama of clothes of accused (Exh. 57) IV. Spot panchanama (Exh. 59) V. Medical Report of accused (Exh. 62) (Admitted by defence); VI. Medical Report of victim (Exh 72) VII. C.A.Reports are at (Exh. 100, 101 and 102) VIII. Arrest panchanama of accused (Exh. 104) and Arrest Form (Exh. 105) 8. After the conclusion of the evidence of the
prosecution, incriminating circumstances were put to the accused in statement recorded under section 313 of CrPC which he emphatically denied. The learned Trial Court upon appreciation of evidence found it to be sufficient to convict the accused and held that the prosecution had proved the guilt of the accused beyond reasonable doubt.
9. The learned counsel for the applicant/accused submits that there is delay in recording statements under section 164 of 6/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc the victim and as such the victim is susceptible to tutoring. He drew attention of the court to the fact that the victim was found on 20th July, 2018 and her statement came to be recorded on 14th August, 2018. He also submits that there is confusion with regards to the correctness of the date of birth of the victim and she cannot be said to be a "child" within the meaning of section 2(1)(d) of POCSO Act and the said fact has not been proved conclusively. It is argued that that the trial court has only relied upon the oral evidence of all the interested witnesses and that there is no corroboration of evidence so as to hold the appellant guilty of the said crime. He further submits that the learned trial court has failed to consider the admission on the part of victim that she went along with the appellant and the allegation for her being kidnapped by the accused deserves to be discarded and as such offence under section 363 of IPC is not proved. He drew the attention of the court to the evidence of the victim which according to him shows that she eloped with the accused on consensual terms. He also submits that the learned Trial Court has failed to consider that sexual intercourse during the 7/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc intervening period which is alleged to be done by the appellant is not supported by other witnesses which raises concern about the happening of the said act being done, so also medical evidence is not considered in proper perspective in this regard. On these amongst other submissions he seeks acquittal of the appellant.
10. The learned APP and Learned Appointed Counsel for Respondent No.2 i.e. Victim supports the impugned judgement and vehemently opposed the application contending that the age of the Victims was proved before the Trial Court which shows that the victim was minor at the time of incident.
11. The Learned Counsel for Respondent No.2 i.e. Victim submits on the point of consent of minor to be immaterial and on the date of incident the minor was 12 years and 11 months old. In order to substantiate the said contention he drew the attention of the court to the birth certificate of the victim which duly proves that the victim was a minor at the relevant time and is a "child" within the meaning of section 2(1)(d) of POCSO Act. He further submits that in view of section 114-A of the Evidence Act, there is a presumption as to absence of consent and when 8/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc the prosecution has proved that Accused had sexual intercourse coupled with the Victim's consistent statements on oath that she did not consent, it ought to be presumed that the Victim did not consent, so also both the victim and accused were brought together to Police Station on 20th July, 2018 is not challenged by the Accused. He also argued that evidence of PW2-Victim is corroborated by the Medical Examination Report which undoubtedly proves the case of the Prosecution. He drew attention to the findings recorded by the Trial Court that medical evidence fully corroborates with the evidence of the victim on point of repeated penetrative sexual intercourse committed by the Accused. According to him, it can be seen from the Forensic Medical Examination Report (Exhibit-72) that the hymen was torn completely with evidence of vaginal penetration due to intercourse, so also from the testimony of PW6-Medical Officer has admitted that hymen was torn completely with multiple old healed scars. He further submits that there is no case of prior enmity and therefore no reason to falsely implicate. There is no inconsistency which goes to the root of the matter. 9/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 :::
48-apeal147-23.doc The inconsistencies in the statements of the PW1- complainant and PW2-Victim are at the highest, minor inconsistencies which do not go to the root of the matter.
12. To support the above contentions, reliance is placed upon the following judgment of Honorable Supreme Court: -
RAJINDER ALIAS RAJU vs State of HIMACHAL PRADESH, reported in (2009) 16 SCC 69.
RADHU vs STATE OF MADHYA PRADESH, reported in (2007) 12 SCC 57.
In order to substantiate that evidence of the rape victim should not be rejected only because it suffers from minor discrepancies and contradictions, so also the consent of a minor would be immaterial in POCSO cases. The act of sexual intercourse committed with consent of minor will still be construed within the defination of 'rape', as law is settled to say that consent of a minor is no consent in the eyes of law as a victim in offence related to POCSO matters is a "Child" within meaning of section 2(1)(d) of the Act.
13. The law on the point of appreciating testimony of the victim of sexual assault is settled to say that if the victim's 10/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc testimony is of 'sterling quality', the same can be accepted without asking for any corroboration thereto and can form a sole basis of conviction without requiring further corroboration. But if it is not so, court should look for corroboration. Keeping in mind the principle laid down by the Hon'ble Supreme Court, the evidence of prosecution need careful contemplation.
14. The prosecution at the first instance is required to prove that the victim is minor and hence "Child" under section 2(1)(d) of the POCSO Act. Perusal of testimony of PW1- informant and PW2-Victim indicates that Victim was studying in 8th standard during the time of incident, Her mother i.e.PW1- informant placed on record the certified copy of birth certificate of Victim at Exhibit-36 issued by Health Department, Parola Municipal Council to substantiate that the victim was minor and a "child" within the meaning of Section 2(1)(d) of POCSO Act. Also the said birth certificate and the testimonies of PW1, PW2 and PW6-doctor to whom the victim narrated her age being 13 years at the time of incident is not seriously disputed by the accused in the evidence. There is no reason for the court to 11/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc discard the said evidence to hold that victim was minor at the relevant time and provisions of POCSO Act have application in the present case.
15. With regards to inordinate delay in recording the statement of victim under Section 164 of Cr.P.C. and her statement being tutored does not arise as not even a suggestion is brought on record by the defence that to show the victim being tutored for giving such statement. Apart from this, there appears no difference in the contents of the statement of victim given to police under section 161 of CrPC and her statement under Section 164 of Cr.P.C. Therefore, merely because there is delay in recording the statement of victim under Section 164 of Cr.P.C. cannot be a ground to observe the case of prosecution with suspicion.
16. Perusal of deposition of PW2-Victim shows accused took her from near school on scooty to 3 different lodges in span from 16/07/2018 to 20/07/2018 under the impression of performing marriage with her and committed repeated sexual intercourse with her and then on 20/07/2018 the victim and the 12/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc accused were discovered by police and brought to Kothrud Police Station, so also the said fact is not strenuously disputed by the accused. During the cross examination nothing could be brought on record by defence to create doubt about her version of incidents.
17. On point of medical evidence and intercourse committed by the accused, perusal of testimony of PW6-Doctor who recorded the history narrated by the Victim shows that she was in love with the accused and he used to work near her house in a Money Transfer Shop. The victim gives history that on 16/07/2018, she eloped with the accused after school hours with her consent, they both went to a lodge for 3 to 4 days. She narrated the history of sexual intercourse with the accused 3-4 times with her consent. Last intercourse being taken place 2 days back and no contraceptives were being used.
18. The evidence of PW6-Dr.Mahrukh Nazneen further discloses that on general examination of the victim she found that her condition was normal, no evidence of external injury was present. On local examination she found that her 13/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc hymen was torn completely with multiple old healed scars. Her pregnancy test was found negative, so also no significant abnormality was found in her sonography. From the Medical Report of victim (Exh. 72) it was opined that, "there was vaginal penetration which may be because of sexual intercourse with no evidence of injury or inflammation on other body parts."
19. Evidence of PW6-Doctor indicates that it is not necessary for a girl who had sexual intercourse first time to have oozing blood. She further concluded that there is possibility of vaginal penetration not only because of forceful sexual intercourse but Causing of scars on private parts of victim can be due to sexual intercourse and around two weeks time is required to heal the scars caused due to sexual intercourse. From the above opinion of PW6 it can be inferred that there is possibility of vaginal penetration with no evidence of external injury, her hymen being torn completely with multiple old healed scars. This shows that the medical evidence supports the testimony of the victim of her being gone through repeated penetrative sexual intercourse being committed by the accused, 14/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc so also, victim in her substantive evidence states about accused giving her a pill, when she grieved of her going through pain after sexual intercourse committed by the accused.
20. The defence has attempted to contend that the victim had voluntarily accompanied the accused and that the acts were consensual. However, the evidence on record clearly establishes that the victim was a minor at the relevant time. It is a settled principle of criminal jurisprudence that the consent of a minor is legally immaterial. A child below the age of 18 years is incapable of giving valid consent for sexual activity, consent of a minor in cases sexual assault is no consent in the eyes of law. Consequently, even if it is assumed that the victim had accompanied the accused voluntarily, such conduct would not absolve the accused of criminal act of 'statutory rape' under the provisions of the POCSO Act.
21. Once the prosecution proves fundamental facts which establishes commission of offence, presumption is raised in view of Section 29 of the Act and it is for the accused to rebut the same. Herein this case the accused has failed to rebut the said 15/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc presumption either by way of cross-examination of witnesses or leading other evidence for disproving facts established by the prosecution
22. On point of kidnapping of victim from lawful guardianship by accused on 16/07/2018, perusal of testimony of PW1 and PW5 shows that even after school was over the victim did not return and therefore after searching for the victim for a long time, they lastly resorted it to lodging a missing report (Exh. 37). In this regard the evidence of the victim needs careful deliberation, even though she in her evidence states about not making any hues and cries as the accused assured to bring her back deserves to be rejected as a consent of a minor is inconsequential. Even otherwise it is seen that considering age of the victim to be 13 at the time of incident, she could not be said to have achieved age of understanding / maturity.
23. Evidence of the victim gets further substantiated by the evidence of PW4-spot punch, in whose presence the victim pointed out 3 different lodges where she was taken by the accused, so also a scooter of Virgo company was seized by the 16/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc police. Evidence of PW8 shows that on 20/07/2018, one boy and a girl came on a scooter, they were given a room and after some time police came and took both of them. He also states about police seizing scooter from the parking area of hotel by police on 25/07/2018 and identifying the accused on his arrest form. On this count, in order to corroborate the evidence of use of scooter by the accused, perusal of evidence of PW9 indicates that accused took the scooter under the reason to go to the bank and did not return the same.
24. In the view of evidence of the victim which is fully consistent and reliable in respect of she being subjected to forcible sexual intercourse by the accused. Apart from the fact that her sole testimony is sufficient to bring home guilt of the accused, herein this case her testimony is corroborated by medical evidence on record. Medical officer who recorded the history of assault committed on victim, in her evidence candidly states that she examined the victim on 21/07/2018, and recorded history given by the victim. On clinical examination, Medical Officer found the hymen of the victim being torn 17/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc completely with multiple old healing scars present with no evidence of perineal injury or inflammation. She opined that causing of vaginal scars can be due to sexual intercourse and around two weeks time required to heal scars caused due to sexual intercourse. The medical officer therefore has candidly opined about medical examination suggesting penetrative sexual vaginal intercourse with evidence of completely hymen being torn and presence of vaginal scars, so also during the cross examination of the medical officer, the suggestion was brought on record by the defence of healing of scars of victim due to sexual intercourse took place 2 weeks prior does not create any doubt about the veracity of testimony of this witness.
25. As discussed herein above, the evidence of victim is worthy of acceptance in view of her consistent statement af sexual assault being committed upon her, this Court has no hesitation to hold that the Accused persons have committed penetrative sexual assault on the victim. The offence punishable under 376(2)(j)(n) of Indian Penal Code (IPC) and section 6 18/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc Protection of Children From Sexual Offence (Pocso) Act, therefore is rightly held to be proved against the person accused.
26. Insofar as the offence punishable under Section 363 of IPC is concerned, the accused took the victim from the lawful guardianship of her parents. Even though the evidence on record shows consent of victim being taken by the accused, but law on point of consent of minor is settled that a minor is incompetent of giving consent and such is deemed invalid in law, consequently the conviction recorded by the Trial Court for the offence punishable under Section 363 of the IPC stands confirmed.
27. As a result of the above discussion, appeal stands dismissed.
Order
(i) The judgment and order dated 30/06/2022 passed by learned Sessions court in POCSO Special Case No. 446 of 2018, convicting the appellant for the offence punishable under section 363, 376(2)(j)(n), 506(1) of Indian Penal Code (IPC) and section 6 Protection of 19/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 ::: 48-apeal147-23.doc Children From Sexual Offence (POCSO) Act stands confirmed.
(ii) All pending Applications are disposed of.
(R.M. JOSHI, J.) 20/20 ::: Uploaded on - 12/03/2026 ::: Downloaded on - 13/03/2026 21:07:18 :::