Bombay High Court
Pawan @ Jivan Pralhad Ingle And 2 Others vs The State Of Maharashtra Thr. Its Pso, ... on 18 December, 2025
2025:BHC-NAG:14500
1/25 apeal-581-24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 581 OF 2024
1. Pawan @ Jivan Pralhad Ingle,
Aged 26 years, Occ. -Agriculturist
2. Vinod Vishnu Jadhao,
Aged 25 years, Occ. - Agriculturist
3. Amol Vishnu Jadhao,
Aged 23 years, Occ. - Agriculturist
All R/o Veni, Tq. Lonar, Dist. Buldhana. ...Appellants
// VERSUS //
State of Maharashtra,
through its Police Station Officer, Police
Station Mehkar, Dist. Buldhana ... Respondent
Shri S.V. Sirpurkar, Advocate a/w Ms. Punam Pisurde, Advocate for the appellants.
Shri Amit Chutke, APP for the respondent/State.
CORAM : NIVEDITA P. MEHTA, J.
Reserved on : 08th December, 2025
Pronounced on : 18th December, 2025
JUDGMENT :
The appellants have preferred the present appeal being aggrieved by the judgment and order dated 06.08.2024 passed by the learned Special Judge, Mehkar, District Buldhana in Special POCSO Case No. 31 of 2021. By the impugned judgment, appellant no.1 Pawan @ Jivan Ingle was convicted for the offences punishable under Section 376(2)(j)(n) of the Indian Penal Code (In short 'IPC') and Section 4 of the Protection of Children from Sexual Offences Act (In short, 'POCSO Act') and sentenced to suffer rigorous imprisonment for twenty years and Sknair 2/25 apeal-581-24.odt to pay a fine of ₹1,000/-, in default to undergo simple imprisonment for one month. He was further convicted under Section 8 of the POCSO Act and sentenced to suffer rigorous imprisonment for three years and to pay a fine of ₹500/-, in default to suffer simple imprisonment for one month; under Section 12 of the POCSO Act and sentenced to suffer rigorous imprisonment for one year and to pay a fine of ₹500/-, in default to suffer simple imprisonment for fifteen days; and under Section 506 of the IPC and sentenced to suffer rigorous imprisonment for one year. Appellant no.2 Vinod Jadhao and appellant no.3 Amol Jadhao were also convicted under identical provisions and sentenced in the same manner as appellant no.1 Pawan Ingle.
2. The prosecution case, in brief, is that on 03.10.2021, the informant mother of the victim lodged a report stating that at about 8.00 p.m., the victim complained of uneasiness and repulsion. Upon being assured by her mother, the victim disclosed that for the last three years, in the absence of other family members, accused Pawan repeatedly called her to his house, compelled her to hold and suck his penis, and on several occasions touched his penis to her vagina. The victim further stated that accused Pawan threatened to kill her if she revealed the incidents. She further disclosed that accused Amol had seen such acts through a window, and thereafter, whenever his house was vacant, he used to call the victim and compel her to perform similar acts, including touching his penis to her vagina, accompanied by threats. Subsequently, accused Vinod also called the victim and subjected her to Sknair 3/25 apeal-581-24.odt similar acts under threat. The victim also disclosed that a friend of accused Amol, a juvenile-in-conflict-with-law, had compelled her to do the same.
3. On the basis of the informant's report, Crime No. 458 of 2021 was registered for offences under Sections 376(A)(B) and 506 of the IPC and Sections 4, 8 and 12 of the POCSO Act. Investigation ensued. The Investigating Officer conducted spot panchnama, arrested the accused, seized clothes of the victim and accused persons, obtained their medical examination, and recorded statements of witnesses including statements of the victim and informant. Upon completion of investigation, charge- sheet was filed.
4. The learned Special Court framed Charge (Exh. 15) against accused nos. 1 to 3 for offences under Sections 376(2)(j)(n) and 506 of the IPC and Sections 4, 8 and 12 of the POCSO Act. The accused pleaded not guilty. The prosecution examined seven witnesses: PW-1 (informant); PW-2 (father); PW-3 (victim); PW-4 Ashwin Dhakre (Panch Wintess); PW-5 Dr. Yogesh Shinde (Medical Officer); PW-6 Ravindra Waghmode (Dy. Chief Officer, Nagar Parishad, Mehkar), and PW-7 Nirmala Pardeshi (Investigating Officer). The defence of the accused, as disclosed in their statements under Section 313 Cr.P.C., was that a false case had been lodged, allegedly due to monetary demands.
5. The learned trial Court noted that PW-1 and PW-2 categorically denied any such monetary demand and that there was no credible material to show existence of prior disputes or history of filing false complaints for extraction of money. The Sknair 4/25 apeal-581-24.odt learned trial Court further held that the absence of injuries on the private parts of the victim did not dilute the prosecution case, as the acts alleged, compelling the child to hold and suck the penis and touching the penis to her vagina, did not necessarily result in injuries, yet fell within the definitions of "penetrative sexual assault" under Section 3 of the POCSO Act and rape under Section 375 of the IPC. The defence evidence was found insufficient to rebut the statutory presumptions under Sections 29 and 30 of the POCSO Act. Upon evaluating the material on record, the learned trial Court concluded that the prosecution had proved the charges beyond reasonable doubt under Sections 4, 8, 12 of the POCSO Act and under Section 376(2)(j) (n), 506 of the IPC. Considering Section 42 of the POCSO Act, the learned trial Court imposed the higher punishment prescribed under Section 4 of the Act, being rigorous imprisonment for twenty years, along with the sentences under Sections 8, 12 of the POCSO Act and Section 506 of the IPC.
Aggrieved thereby, the accused-appellants have preferred the present appeal.
6. Heard learned Counsel Mr. S.V. Sirpurkar for the appellants and learned Additional Public Prosecutor Mr. Amit Chutke for the State.
7. Learned Counsel for the appellants Shri S.V. Sirpurkar submitted that the prosecution case suffers from fundamental infirmities going to the root of the matter. It is contended that the First Information Report dated 05.10.2021 does not mention any specific date, time or period during which the alleged sexual assaults took place, except a vague reference that the victim disclosed the acts after a period Sknair 5/25 apeal-581-24.odt of three years. According to him, such an inordinate and unexplained delay, particularly when the allegations relate to repeated sexual exploitation of a minor child, renders the prosecution version inherently doubtful. The alleged incident on various occasions have taken place during the Covid-19 pandemic when movement was restricted and family members invariably remained indoors; therefore, the allegation that the child was repeatedly exploited in isolation is improbable. It is further submitted that the conduct of the informant, who works in the medical field and had direct access to doctors, in not taking the victim for medical examination at any point of time prior to lodging the report, despite the victim allegedly complaining of swelling in her private parts, is unnatural and inconsistent with normal human behaviour.
7.1 Learned Counsel further argued that the defence has brought on record the existence of prior enmity between the families of the appellants and the victim, particularly a long-standing land dispute between the grandfather of the victim and the father of accused Pawan. It is submitted that the informant is in the habit of lodging complaints to extract money and that the present FIR is a continuation of such conduct. The medical evidence, according to the appellants, does not support the prosecution case at all. The evidence of P.W.5, Dr. Yogesh Shinde, does not show any external injury, tear or sign of vaginal trauma, which is inconsistent with the allegations of repeated penetrative sexual assault on a child of six years. The father of the victim, P.W.2, also failed to mention any period of alleged sexual exploitation in his statement under Section 164 of the Code of Criminal Procedure Sknair 6/25 apeal-581-24.odt and admitted that the child never made any complaint prior to the filing of the FIR. The learned Counsel for the appellants further contends that appellant Pawan was employed in Pune till October 2021 and similarly appellants Amol and Vinod were also working outside the village, thereby negating the possibility of their presence in the village during the period in which the victim alleges that the acts occurred. The learned Counsel contends that the history narrated by the victim to the Medical Officer places the incidents during the Covid-19 lock-down, a period when such unsupervised access to the victim was highly unlikely.
7.2 It is further urged that the victim herself admitted that she shared all daily matters with her parents and would not hide anything from them, making it highly improbable that she would suppress incidents of such magnitude for three years. The appellants contend that the victim has been tutored and the allegations have been fabricated to rope the members of one family due to enmity and ulterior motives. In this backdrop, learned Counsel submitted that the learned trial Court failed to appreciate the contradictions and omissions in the testimony of the victim and her parents, and relied upon an inherently doubtful version. Learned Counsel for the appellants placed reliance on the judgment of this Court in Abdul Rajak Chapparban v. State of Goa, 2020 SCC OnLine Bom 932, to contend that there is no incriminating material on record pertaining to any alleged incident during the period commencing three years prior to the date of lodging of the report, i.e., 05.10.2021. In the absence of any specific or substantive allegations covering the relevant period, it was argued that the very framing of charge by the learned Special Sknair 7/25 apeal-581-24.odt Court was unwarranted and unsustainable in law, having regard to the nature of allegations made by the victim.
8. Per contra, learned Additional Public Prosecutor Shri Amit Chutke supported the impugned judgment and submitted that there is no delay in lodging the FIR, as the informant approached the police immediately after the victim disclosed the incidents. The delay of two days after disclosure cannot be termed unreasonable, considering the tender age of the child and the gravity of the allegations. He submitted that the prosecution has proved the age of the victim and that she was below six years at the time of the incident, which is not disputed by the defence. The learned Addl.P.P. contended that the absence of external injuries does not discredit the prosecution case as the victim has primarily alleged oral sex, and touching of penis to the vagina of victim is sufficient to attract Sections 4, 8 and 12 of the POCSO Act as well as Section 376 (2)(j)(n) of the IPC. He fairly submitted that although the alleged incidents occurred three years prior to lodging of the report, the testimony of the victim is consistent and inspires confidence. According to him, except for minor inconsistencies, the evidence of P.W.1 and P.W.2 corroborates the testimony of the child, and the defence has failed to establish that the informant demanded money or lodged false reports in the past. On the contrary, evidence shows that the informant had asked the appellants to seek apology before proceeding to lodge the complaint. Thus, according to the learned Addl.P.P., the prosecution has proved the guilt of the appellants beyond reasonable doubt and the learned trial Court has rightly convicted them.
Sknair
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9. On careful examination of the evidence led by the prosecution, this Court finds that the testimony of the prosecution witnesses does not inspire confidence and suffers from serious inconsistencies, omissions, and procedural defects, which cumulatively create reasonable doubt in favour of the appellants.
10. The evidence of PW1, the mother of the victim and the informant, is not free from doubt. Although she stated that the victim disclosed the alleged incidents on 03.10.2021, the complaint was lodged only on 05.10.2021, despite the police station being nearby. PW1 admitted that during this delay, village elders, the Police Patil, and the Sarpanch attempted to settle the matter. She further admitted that she was willing to consider settlement on certain conditions, including a public apology. Such conduct is not consistent with the normal behaviour of a parent whose minor child has allegedly suffered repeated sexual assault and raises serious doubt about the spontaneity and truthfulness of the complaint.
11. PW1 also made several material improvements over her original complaint. Important allegations such as repeated acts, threats to kill both parents, involvement of accused Vinod during the COVID period, and the role of another accused were either missing or vaguely stated in the FIR. PW1 could not give any convincing explanation for these omissions. More importantly, she admitted that she had noticed swelling and pain in the victim's private parts for several months but neither informed her husband nor took the child for medical examination, despite being a Sknair 9/25 apeal-581-24.odt trained nurse. This unexplained conduct makes the allegation of continuous abuse doubtful.
12. Further, PW1 contradicted herself regarding the victim's fear. While she initially stated that the victim was afraid of the accused, she later admitted that she herself sometimes beat the victim and that the victim was afraid of her. PW1 also admitted that the victim never disclosed any incident despite sleeping next to her every night. These admissions weaken the claim that the victim was under constant threat and distress. The defence also brought on record that PW1 had earlier filed multiple complaints of sexual harassment, which casts doubt on her impartiality. 12.1 The relevant portion from the cross-examination of the informant-mother of the victim, PW1 is reproduced hereinbelow, which makes the case of prosecution highly doubtful, unreliable and untrustworthy. Thus, the testimony of PW 1 does not inspire confidence.
"15- ------eh fiMhrsyk vka?kksG ?kkyr vlrkauk fiMhr eyk frps lq ps fBdk.kh gkr ykow udks] rsFks nq[krs vls Eg.kr gksrh- eh fiMhrsP;k lw P;k tkxsph ikg.kh dsyh gksrh R;kosGh eyk R;k fBdk.kh FkksMh lqt vkY;kps fnlys gksrs- ;kckcr eh dqqVwackrhy brj lnL;ka'kh ppkZ dsyh ukgh- fiMhrsP;k lw P;k tkxh lqt vkY;kph ckc eyk xaHkhj okVyh ukgh- eh jkst fiMhrsyk vka?kksG ?kkyrs- fiMhrk eyk jkst lkaxk;ph dh lw P;k tkxh lkc.k ykow udsk rsFks nq[krs-
16- eh dke djhr vlysY;k #X.kky;krhy oS|dh; vf/kdkjk&;ka'kh ek>h vksG[k vkgs- T;kosGh fiMhrsP;k lq P;k fBdk.kh lqt vlY;kps o fiMhrk fgyk rsFks nq[kr vlY;kps eyk letys R;kosGh eh fiMhrsph oS|dh; rikl.kh eh dke Sknair 10/25 apeal-581-24.odt djhr vlysY;k fBdk.kps oS|dh; vf/kdkjh ;kapsdMwu dsyh ukgh rlsp [kktxh MkWDVjkadMwu ns[khy fiMhrsph rikl.kh dsyh ukgh-
17- fIkMhrk eyk fdaaok ek>s irhyk ?kkcjr uOgrh- ?kVusiwohZ eh fiMhrsyk d/kh jkxkowu cksyys uOgrs- gs Eg.k.ks [kjs ukgh dh] fIkMhrsP;k eukr ek>s cnn~y /kkd] niV o ng'kr gksrh- fiMhrk ?kjh ,dVh vH;kl djhr vlrkauk eh dkeko#u ?kjh vkY;kuarj rh fnolHkjkrhy frps vH;klkckcr eyk lkaxr gksrh- ek>sdMs ek>s lklqlkljs ;kaps tk.ks;s.ks vlrs- eh fiMhrk rlsp ek÷;k nql&;k eqyhP;k vkjksX;kph dkGth djrs- ?kVusiqohZ fiMhrk eyk iksV nq[krs vls Eg.kwu lksuksxzkQh djrs dk vls Eg.kkyh gksrh- eh R;kckcr fiMhrsph lksuksxzkQh dj.;kpk iz;Ru dsyk ukgh- ?kVusps vankts 10 efgU;kiqohZ fiMhrsus eyk lksuksxzkQhckcr EgVys gksrs- lnj ckc eyk ukWeZy okVyh- ;kckcr eh ek>s irhyk lkaxhrys gksrs- ek>s irhus lq/nk fiMhrsyk nok[kk.;kr usys ukgh-
18- fiMhrk usgehizek.ks tso.k ?ksr gksrh rlsp vH;kl lq/nk djk;ph- fiMhrsps okx.ks gs ukeZy gksrs- ?kVusiqohZ d/khgh fiMhr gh rk.kr.kkok[kkyh uOgrh fdaok fpMfpM djhr uOgrh- fiMhrk gh ek>stoGp >ksir gksrh- ek÷;ktoG >ksir vlrkauk] cksyr vlrakuk fiMhrsus eyk d/khgh ?kVusckcr lkaxhrys ukgh------
20- ------dFkhr onhZiqohZ fiMhrk fgus vkjksihckcr frps vkthyk lkafxrys gksrs- vkthus ;kckcr eyk dFkhr fjiksVZ fnY;kuarj lkafxrys gksrs- fiMhrk gh tkLr frps vkthps vaxkoj gksrh- ek>s lklqus lnj ckc ek>s lkljs ;kauk lkfxrY;kps ek>s dkukoj d/kh vkys ukgh- fiMhrk fgps'kh ek>s laoknk njE;ku fiMhrk fgyk pkaxys o okbZV ckch dGr vlY;kps eyk tk.koys ukgh- eh iqUgk lkaxrs dh] fiMhrk fgyk pkaxys o okbZV ;kckcr dGr gksrs-
22- ------fjiksVZ ns.;kiqohZ vkeps xkops raVkeqDrh v/;{k] iksyhl ikVhy] ljiap o lektkrhy dkgh yksd ;kaps'kh ppkZ >kyh- dFkhr okn xkokrhy yksdkauh vkilkr feVfo.;kpk iz;Ru dsyk] rs yksd ?kjh ;sowu lkaxr gksrs- ek>s lkljs ;kauh R;k yksdkauk lkafxrys dh] fiMhrsph vkbZ Eg.kts eh eq[; vlqu eh ,sdys rj R;kaph dkgh gjdr ukgh- xkokrhy yksd izdj.k feVfo.;kckcr eyk fjiksVZ fnY;kuarj cksyys gksrs- gs Eg.k.ks [kjs vkgs dh- eh R;kauk Eg.kkys Sknair 11/25 apeal-581-24.odt gksrs dh] ek÷;k Eg.k.;kizek.ks R;kauh ,sdys rj eh feVfo.;kckcr fopkj djsy-----
23- ;k izdj.kkrhy fjiksVZ nk[ky >kY;kuarj vkjksih veksy tk/ko o fouksn tk/ko ;kps vkbZoMhykauh R;kaph 'ksrh fodyh-------
27- -------izLrqr izdj.kkrhy fQ;kZn ns.;kiqohZ ns[khy eh iksyhl Bk.;kr xsyh gksrh-"
13. The evidence of PW2, the father of the victim, is mainly based on what he was told by PW1 and the victim and is therefore hearsay. He admitted that even after learning about the incident on 03.10.2021, the complaint was delayed due to attempts at village-level settlement and that he himself wanted the matter to be resolved amicably. This shows that the FIR was not filed immediately but after discussion and deliberation, which affects its reliability.
14. PW2 further admitted that during the COVID-19 lock-down, strict restrictions were in place and the children were instructed not to leave the house or visit others. According to him, the children remained at home when he went with his wife to work and returned together. This directly contradicts the prosecution claim that the victim frequently went to the houses of the accused when no one was present. PW2 also admitted that there were prior land disputes involving his father and the accused's family, which provides a possible motive for false implication.
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The relevant portion of the cross-examination of the father of victim PW2 is reproduced hereinbelow, which creates suspicion about the case of the prosecution and its truthfulness;
"7- --- fnukad 03-10-2021 jksth ?kVusckcr ekfgrh feGkY;kuarj R;kp jk=h vkEgh fjiksVZ nsow 'kdyks vlrks- vkEgh fjiksVZ fnukad 05-10-2021 jksth fnyk- eh jktw rakchys ;kauk vksG[krks- ?kVusps osGh vkeps xkops iksyhl ikVhy jktw 'ksokGs gs gkssrs- gs Eg.k.ks [kjs vkgs dh] vkeps oMhy rlsp iksyhl ikVhy o rkachys o brj iap eaMGh ;kauh lnj okn vkilkr feVfo.;kpk iz;Ru dsyk- iksyhl ikVhy o rkachys ;kaps leksj lnj okn vkilkr feVfo.;kps Bjys gksrs- gs Eg.k.ks [kjs vkgs dh] ek>s iRuhph ekx.kh gksrh dh vkjksihauh tkghj ekQh ekxkoh o lektkleksj ukd ?kklkos- gs Eg.k.ks [kjs vkgs dh] eyk o ek>s iRuhyk xkokrhy yksdkauh lnjpk okn feVfo.;kckcr fouarh o vkxzg dsyk gksrk- gs Eg.k.ks [kjs vkgs dh] O;Drhxr ek>h ns[khy xkokrhy yksdkaP;kk fouarho#u okn feVfo.;kph bZPNk gksrh- ------ gs Eg.k.ks [kjs ukgh dh] vkjksihaph vkfFkZd ifjLFkhrh xjhchph vkgs- gs Eg.k.ks [kjs vkgs dh] vkjksih veksy o fouksn ;kaps vkbZus nksu ,dj tehu fodyh vkgs------
8- -----eh ek>s iRuhyk frps dkekps fBdk.kh iksgpwu rsFksp Fkkacr gksrks o dke laiY;kuarj fryk ?ksowu ?kjh ;sr gksrks- dksjksukpk izknqHkkZo vlY;keqGs eh ek÷;k nksUgh eqyhauk ?kjkrp Fkkack;ps ?kjkckgsj tk;ps ukgh vls lkaxk;pks- eh iRuhyk ?ksowu frps dkekps fBdk.kh tkrkauk vkeP;k eqyh ?kjh vlk;P;k rlsp iRuhyk ?ksowu ?kjh ijr ;sr gksrks R;kosGh ns[khy R;k ?kjh vlk;P;k- dksjksukps dkGkr eh dke ulrkauk xkokr fQjr uOgrks-
9- ----dFkhr ?kVusiqohZ vkeps ?kjkps cka/kdkekP;k foVk g;k vkjksih fouksn o veksy ;kaps vax.kkr BsoysY;k gksR;k-----
10- gs Eg.k.ks [kjs vkgs dh- vkjksih ioups oMhy o ek>s oMhy ;kapsr tehuhps dkj.kko#u rdzkjh nk[ky >kY;k gksR;k- lk{khnkj lkaxrks dh] R;k iqohZ nk[ky >kY;k gksR;k izLrqr ?kVus'kh R;kpk laca/k ukgh- ek>s oMhy lkekthd Sknair 13/25 apeal-581-24.odt dk;ZdrsZ o jktdkj.kh vkgsr- ek>s oMhykaps iksyhl ikVyka'kh pkaxys laca/k vkgsr rlsp R;kaps iksyhl Bk.;kr tk.ks;s.ks vlrs-----
12- ---- gs Eg.k.ks [kjs vkgs dh] ek>s iRuhus oS|dh; vf/kdkjh 'kke Bksacjs ;kaps fo#/n 'kjhj lq[kkph ekx.kh dsY;kckcr fjiksVZ fnyk vkgs- gs Eg.k.ks [kjs ukgh dh] eh o ek>s iRuhus oS|dh; vf/kdkjh Bksacjs ;kapsdMs fjiksVZ ns.;kiqohZ ngk yk[k #i;kaph ekx.kh dsyh o R;kuarj nksu fnolkuh R;kaps fo#/n fjiksVZ fnyk-
15- ---?kVusP;k 03 o"kkZiwohZiklwu rs ?kVusi;Zar fiMhrk fgyk d/khgh nok[kk.;kr Hkjrh dj.;kps dke iMys ukgh- dFkhr ?kVusP;k 03 o"kkZiqohZiklwu rs ?kVusi;Zar eyk fiMhrsP;k 'kfjjkr fdaok frps okx.ks o cksy.;kr dks.krkgh cny tk.koyk ukgh- fiMhrk ek>s'kh oMhykalkj[ks cksyk;ph] frps eukr ek>sckcr /kkd fdaok fHkrh uOgrh------"
15. The testimony of PW3, the victim, though to be considered with sensitivity, also contains serious improbabilities. She stated that during the COVID period she strictly followed instructions of her parents and grandparents and never went anywhere without permission. She also stated that she freely shared everything with her parents. This makes it difficult to accept that repeated incidents could have occurred over a long period without any disclosure. PW3 further admitted that she understood the difference between good and bad and would immediately inform her parents if someone harmed her, making prolonged silence unnatural.
16. PW3's evidence is also inconsistent regarding the timing and circumstances of the alleged incidents. She stated that schools were closed for a long period and she studied online at home, yet claimed that incidents occurred when no one was home. She admitted that one accused lived in Pune and another was married, but Sknair 14/25 apeal-581-24.odt failed to give clear dates, frequency, or sequence of events. She denied any village discussions before filing the complaint, which is contradicted by the admissions of PW1 and PW2, thereby affecting her credibility.
The relevant portion from the cross-examination of the victim PW3 is reproduced hereinbelow. Hence, the possibility that the victim was tutored one also cannot be denied.
"9---- eh o ek>h cfg.k xkokrhy ?kjh jkgrks- eh 'kkGsyk tkrs- dksjksukeqGs 'kkGk can gksR;k R;kosGh eh ?kjhp jkgwu vH;kl djhr gksrs- ek>s ?kjkps vktqcktwyk cjhp ?kjs vkgsr- dksjksuk vlY;keqGs ek>s eEeh o iIik vkEgkyk lkaxr gksrs dh] dks.kkps ?kjh tk;ps ukgh- dksjksuke/;s Ogk;jl ;srks gs eyk ekfgr gksrs-
10- eh eEeh o iIikph izR;sd xks"V ,sdrs- eh eEeh o iIikps fo#/n okxr ukkgh- eEeh ?kjh vkY;kuarj ek>slkscr vH;klkckcr ppkZ djrs- ek>s iIik d/kh d/kh ek>s lkscr ppkZ djk;ps- ek>s eEeh iIik ek>s'kh okx.ks izsekps gksrs- vH;kl >kY;kuarj eh lq/nk ek>s eEeh iIika'kh eueksdGsi.kkus cksyk;ph- ek>s eukr ek>s eEeh o iIikckcr d/khgh /kkd vxj ng'kr uOgrh- dksjksukps dkGkr ek>s eEeh iIik eyk lkaxk;ps dks.kkps ?kjh tk;ps ukgh- dks.kkyk ?kjkr ;sow |k;ps ukgh o ?kjh jkgwu vH;kl djk;pk- eh eksckbZyoj 'kkGspk Dykl fu;ehr djk;ph] Dykl cqMok;ph ukgh- tsOgk Ik.k iIik eEehyk M;qVhoj ?ksowu ;k;ps R;kosGh eh ?kjkr vH;kl djr vlk;ph- vls ?kMys ukgh dh] iIik eEehyk ?ksowu ?kjh vkys o eh ?kjkr uOgrh- -----
11- ek>s xkokrhy ?kjh ek>s vktksck o vkth] dkdk] dkdw] oxSjs jkgrkr- R;kaps ?kjkyk ykxwu pqyr vktksck lek/kku voljeksy o R;kaps dqVwac jkgrs- tls eh ek>s eEeh iIikaps ,sdrs rlsp eh ek>s vktksck] vkth] dkdk] dkdw ;kaps ns[khy ,sdrs- ek>s vktksck] vkth] dkdk] dkdw gs ns[khy eyk lkaxk;ps dh] dksjksuk Ogk;jl [kjkc vkgs- dks.kkps ?kjh tk;ps ukgh] dks.kkyk ?kjkr ;sow |k;ps Sknair 15/25 apeal-581-24.odt ukgh- eh R;kaP;k loZ xks"Vh ,sdr gksrh- ek>s vktksck vkth ek>soj vH;kl dsyk ukgh] ?kjh Fkkacyh ukgh Eg.kwu jkxkoys ukgh fdaok ekjgk.k dsyh ukgh- dksjksuk dkGkr eh ek>s eEeh iIik] vktksck] vkth ;kaps ,sdys o R;kaps Eg.k.;kizek.ks jkghyh o fu;ehr vH;kl dsyk-
13- eh ek÷;k eukrhy loZ xks"Vh jkst eEeh iIikyk lkaxr gksrh-----
14- eh lqVhps fno'kh xkokrhy ?kjh jkgr gksrh- R;kosGh ek>s vktksck vkth ek>slkscr vlk;ps-
18- dksjkuk dkGkr eh ?kjh vH;kl djrkauk ek>s vktksck vkth ek>stoG tkLr osG jkgr gksrs- vktksck vkth eyk d/kh jkxkor uOgrs o eyk R;kapk /kkd uOgrk- eh vktksck vkth lkscr usgeh pkaxys cksyk;ph o R;kauk loZ lkaxk;ph-
19- eh Vh-Ogh- c?krs rlsp eksckbZyoj xse [ksGrs o dkVqZu c?krs- eh eksckbZyoj gkWjj xse rlsp cq/nheRrsps xse [ksGrs rlsp c?krs- eyk eksckbZy okijrk ;srks- eksckbZy c?krkauk dk; pkaxys vkgs dk; okbZV vkgs gs eyk letrs- eEeh iIik cksykoY;koj R;kapstoG fcu/kkLr tkrs rlsp nql&;kus cksykoY;koj fcu/kkLr tkr ukgh] R;krhy Qjd eyk dGrks- ----
20- eh fe= eS=h.khlkscr [ksGk;yk xsY;koj dks.kh ek>s'kh HkkaM.k dsys vxj eyk ekjgk.k dsyh rj rh ckc eh ek>s eEeh iIikyk lkaxr gksrh-"
17. A minute scrutiny of the testimony of the victim, who is a child witness, reveals that she was duly assessed by the Court and was found to possess sufficient maturity and understanding to differentiate between what is right and what is wrong. It has also come on record that her relationship with her parents and grandparents was cordial and friendly. In such circumstances, it appears wholly improbable and difficult to accept that the victim would wait for a period of nearly Sknair 16/25 apeal-581-24.odt three years to disclose the alleged incident to her mother. This improbability is further accentuated by the fact that the mother (P.W.1), who is admittedly a nurse by profession, did not deem it appropriate to subject the victim to medical examination despite allegedly noticing swelling in the private part of the victim. Such conduct is unnatural and runs contrary to ordinary human behavior. The overall conduct of the victim (P.W.3), her mother (P.W.1), and her father (P.W.2), when examined in totality, appears highly improbable and does not inspire confidence. The inconsistencies and inherent improbabilities in their version materially undermine the prosecution case. Consequently, the prosecution has failed to establish the foundational facts of the alleged offence beyond reasonable doubt. In the circumstances, the accused is entitled to the benefit of doubt.
18. The evidence of PW4, the panch witness, exposes serious procedural defects. He admitted that the spot panchnama shows a different date than when it was allegedly prepared. He also admitted that no ownership records or Gram Panchayat documents were verified in his presence to confirm whether the houses shown actually belonged to the accused. He could not state property numbers or boundaries. The spot panchnama was prepared only on the basis of what was shown by the complainant and victim, without independent verification, making it unreliable. He further admitted that no official order or office entry was made for the seizure panchnamas, which casts doubt on the fairness of the procedure.
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19. PW5, the Medical Officer, did not find any external or internal injuries on the victim. No tear or marks of violence were found. The doctor only stated that the "possibility of sexual assault cannot be ruled out," which is a cautious and inconclusive opinion. Such an opinion cannot be treated as proof of sexual assault in the absence of medical or forensic support. The evidence of PW6 proves the date of birth of the victim. The appellants have not denied the age of victim.
20. PW7, the Investigating Officer, admitted that the complaint was filed with delay and that the spot panchnama was prepared before verifying ownership of the houses through official records. She admitted that the panchnama was prepared based solely on the victim's statement without independent verification. She also admitted that she later came to know about earlier complaints filed by PW1. The investigation shows lack of independent corroboration, and no material evidence was recovered to conclusively link the appellants with the alleged offence. The forensic reports also do not provide decisive support to the prosecution.
21. Having carefully considered the depositions on record and the submissions advanced by the parties, this Court finds that the prosecution case suffers from material inconsistencies which go to the root of the matter. The First Information Report, lodged on 05.10.2021, does not disclose any specific date, month, or even an identifiable period during which the alleged incidents are stated to have occurred. The prosecution alleges that appellant nos. 1 to 3, on several occasions, called the victim to their house and compelled her to hold their penis with her hand and mouth Sknair 18/25 apeal-581-24.odt and to have their penis touched to her vagina. It is significant to note that the alleged incidents are stated to have taken place during the period of the COVID-19 pandemic, when strict lock-downs, restricted movement, and continuous presence of family members within the household were prevailing circumstances. In this factual backdrop, the repeated and unnoticed visits of a six-year-old child to the house of the accused, as alleged by the prosecution, appear inherently improbable and cast serious doubt on the prosecution version. Further, the vague assertion that the child was subjected to such acts for a period of "three years" prior to disclosure, without any particulars regarding dates, frequency, circumstances, or opportunity, remains unsupported by material particulars. Such lack of specificity, particularly in relation to grave allegations, materially undermines the credibility of the prosecution case and raises substantial doubt as to the veracity of the accusations levelled against the appellants.
22. It is further noted that the victims' mother, who is the informant, is herself engaged in the medical field. The evidence discloses that the victim child had earlier complained of swelling in the vaginal region. However, despite possessing medical knowledge and being in a position to access immediate medical care, the mother did not take the child for any examination at that time. This conduct is inconsistent with normal human behaviour and weakens the prosecution story. When the victim was eventually examined by a doctor, she was treated only for worms in the stomach. The medical papers do not reveal any signs of injury, trauma, or indication of repeated sexual abuse. In a case based on allegations of repeated sexual assault over Sknair 19/25 apeal-581-24.odt a prolonged period, the complete absence of medical corroboration assumes significance.
23. The testimony of the victim, though competent under Section 118 of the Evidence Act, requires careful scrutiny. In the present case, the allegations against all three appellants are omnibus, general and repetitive in nature, without any distinction as to the role, occasion or specific act attributed to each appellants. The narrative is stereotyped and lacking in material particulars such as dates, frequency, circumstances or surroundings of the alleged incidents. The inherent vagueness and absence of detail render the testimony unsafe to accept without substantial support.
24. The unexplained delay of nearly three years from the alleged commencement of abuse until disclosure is material in the present case. The victim, as admitted by the parents, used to share all her daily matters freely with them. Both P.W.1 and P.W.2 admit that the child did not make any complaint of discomfort or inappropriate conduct during this long period. The prosecution explanation, that she remained silent due to threats, remains uncorroborated and is inconsistent with the admitted fact that the child was otherwise communicative, expressive, and emotionally close to her parents. This conduct raises a reasonable doubt regarding whether such prolonged incidents occurred at all.
25. In matters of sexual crime the court is always faced with the dichotomy of whether to believe the victim as rarely would one find such crimes committed in the presence of others. It becomes even more trying for the court when one has to rule Sknair 20/25 apeal-581-24.odt on the truthfulness of the victim's statement when she deposes about sexual assaults several years before the complaint. The Hon'ble Supreme Court however, has laid down the fundamental rule of a "sterling witness". If this rule of a sterling witness is followed and the victim's testimony tested, it would be easier for the court to administer criminal justice to victims of sexual crimes. If the victim's testimony qualifies as that of sterling witness, it would be prudent to convict the appellant on her sole testimony. The Hon'ble Supreme Court in Nirmal Premkumar & Anr. vs. State represented by Inspector of Police, 2024 SCC Online SC 260 in paragraph 15 observed as follows:
"15. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a "sterling witness" without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution's case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded."
26. The defense has brought on record that the period in question substantially overlaps with the COVID-19 lock-down, when families remained indoors and children had minimal unsupervised access. The prosecution has not led any evidence regarding opportunities available to the appellants/accused persons; to remain alone with the victim. No neighbour, independent witness, or circumstantial Sknair 21/25 apeal-581-24.odt evidence has been produced to show that the victim regularly visited the houses of the appellants during this period. This deficiency becomes material in light of the allegation of repeated acts over years.
27. The prosecution has failed to establish foundational facts necessary to trigger the statutory presumption under Section 29 of the POCSO Act. The testimony of P.W.3, the child victim, contains significant improvements when compared with her Section 164 statement and her FIR version. Her testimony in Court introduces fresh allegations against all three appellants. These improvements are material and not minor omissions. Where the very substratum of the allegation, who committed what act and in what sequence, varies across statements, the benefit of doubt must go to the appellants.
28. The medical evidence of P.W.5 does not support the prosecution case. While absence of injuries may not always negate sexual assault, in cases of repeated penetrative assault of a six-year-old child over years, complete absence of any genital changes, tears, scarring, or signs of healed injury is improbable. The prosecution has alleged touching of penis to vagina "several times" by three adult males; however, no medical finding corroborates even superficial trauma. The Medical Officer also admitted that the victim narrated the incidents in a manner that did not specify penetration.
29. The prosecution case that the appellants were present in the village throughout the period of alleged abuse is contradicted by defence suggestions that Sknair 22/25 apeal-581-24.odt accused Pawan was employed in Pune, and accused Amol and Vinod were working outside the village. The prosecution made no effort to verify their place of work, leave records, or actual residence. In criminal law, the prosecution must exclude reasonable alternative possibilities. This foundational deficiency weakens the prosecution case materially.
30. The defence plea of prior enmity may not be independently proved, but the prosecution has failed to eliminate the possibility that strained relations and past disputes could have led to exaggerated or false allegations. P.W.1 herself admitted that she had asked the accused persons to come and apologize, which indicates that the FIR was preceded by discussions and negotiations. This circumstance casts doubt on whether the allegations were spontaneous or emerged after familial conflict. The testimony of P.W.1 and P.W.2 suffers from material omissions. Neither witness, in their statements under Section 164 Cr.P.C., mentioned the period of alleged incidents, the frequency, or the distinct acts attributed to each appellants. Such omissions go to the root of the case and cannot be treated as minor.
31. The prosecution has not explained why the victim was not medically examined earlier, although P.W.1 admitted that the child had complained of swelling in private parts. Being a medical worker, P.W.1's conduct not to seek prompt medical evaluation is highly unnatural and inconsistent with ordinary human behavior. This conduct raises doubt about whether such complaints were ever made.
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32. In State of U.P. vs. Babu Ram, (2000) 4 SCC 515; the Hon'ble Supreme Court held that deposition of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardstick cannot be prescribed as for those different categories of witnesses.
33. Learned Counsel for the appellants has placed reliance on the judgment of this Court in Abdul Rajak Chapparban (supra) contending that the framing of the charges by the Special Court was both unwarranted and legally unsustainable, having regard to the nature and scope of the allegations made by the victim. The principle laid down in Abdul Rajak Chapparban is, in our view, squarely applicable to the facts of the present case.
34. On overall assessment, the prosecution evidence does not inspire confidence to uphold a conviction of such gravity. The foundational facts necessary to draw statutory presumptions are not proved. The improvements in the testimony of the victim, the long unexplained silence, lack of medical corroboration, absence of concrete opportunities during lock-down, and contradictions in the prosecution case cumulatively create reasonable doubt. It is a settled principle that suspicion, however strong, cannot substitute the standard of proof required in criminal law. In Sknair 24/25 apeal-581-24.odt the backdrop of the allegations and the surrounding circumstances prevailing during the COVID-19 pandemic, the conclusion arrived at by the learned Trial Court that offences under Sections 4, 8 and 12 of the POCSO Act and Sections 376(2)(j)(n) and 506 of the IPC are made out, suffers from serious infirmities and is legally unsustainable.
35. In view of the above, the prosecution evidence as a whole suffers from contradictions, unexplained delay, procedural lapses, inconclusive medical evidence, and lack of reliable corroboration. The case appears to have been built on assumptions rather than clear proof. When such serious doubts arise, the law mandates that the benefit must go to the accused. Accordingly, the accused/ appellants are entitled to the benefit of doubt. Consequently, this Court holds that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt. The appellants are therefore entitled to be acquitted. Hence, I proceed to pass the following order;
Order
i) Criminal Appeal is allowed.
ii) The impugned judgment and order dated 06.08.2024 passed by the learned
Special Judge, Mehkar, District Buldhana in Special POCSO Case No. 31 of 2021 is hereby quashed and set aside.
iii) The appellants are acquitted of the offences punishable under Sections 4, 8 and 12 of the POCSO Act and Sections 376(2)(j)(n) and 506 of the IPC.
(iv) The appellants be released forthwith, if not required in any other case.
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v) The fine amount, if any, deposited by the appellants shall be refunded to
them.
(NIVEDITA P. MEHTA J)
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