Bombay High Court
Sudhir Sukhdeo Bhalerao vs The State Of Maharashtra And Another on 19 January, 2026
2026:BHC-AUG:2651
3.APEAL.506.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 506 OF 2022
Sudhir Sukhdeo Bhalerao,
Age : 41 Years, Occu : Nil,
R/o. Near Datta Mandir, Gandhinagar,
Bolhegaon, Tq. & Dist. Ahmednagar ...APPELLANT
VERSUS
1. The State of Maharashtra
Through Police Inspector,
Tofkhana Police Station,
Tq. & Dist. Ahmednagar.
2. X.Y.Z. ...RESPONDENTS
WITH
CRIMINAL APPLICATION NO. 1915 OF 2022
IN
CRIMINAL APPEAL NO. 506 OF 2022
***
Mr. Tandale Kakasaheb J., Advocate for the Appellant.
Ms. A. S. Deshmukh, APP for Respondent - State.
Mr. R. B. Narwade Patil, Advocate for Respondent No.2.
***
CORAM : RAJNISH R. VYAS, J.
DATE : JANUARY 19, 2026
JUDGMENT :
1. Knock on the door of justice is by the accused / appellant by preferring the appeal challenging the conviction awarded in Special Case No.134 of 2019 by Additional Sessions Judge, Ahmednagar, on 06th December 2021, by which he is convicted for the commission of offenses punishable under Sections 376(3), 376C, 376(2)(f), 377 and Shrikant Malani Page 1 of 27
3.APEAL.506.2022 506 of the Indian Penal Code (hereinafter would be referred as the "IPC" for the sake of brevity) and under Sections 4, 6 and 10 of Protection of Children from Sexual Offenses Act (hereinafter would be referred to the "Act of 2012" for the sake of brevity).
2. The appellant was directed to suffer rigorous imprisonment for twenty years and to pay fine of ₹ 20,000/-, and in default, to suffer simple imprisonment for three months, for the commission of offense punishable Under Sections 376(3) of IPC. A fine of ₹ 20,000/- was also imposed.
3. Sofar as the conviction under Section 377 of the IPC is concerned, he was directed to suffer rigorous imprisonment for five years and to pay fine of ₹ 2,000/-, and in default, to suffer simple imprisonment for seven days.
4. Sentence of one year / rigorous imprisonment and a fine of ₹ 1,000/- was imposed for the commission of the offense punishable under Section 506 of the IPC. Default sentence was also imposed. All the sentences were ordered to run concurrently. Shrikant Malani Page 2 of 27
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5. Learned counsel, Mr. Kakasaheb Tandale, has advanced his arguments for the appellant, whereas the learned APP, Ms. Deshmukh, has appeared for the prosecution. The victim is represented by Advocate, Mr. Narwade. With their able assistance, I have gone through the record of the case and pondered over the issue.
6. A first information report was registered against the present appellant, which resulted into registration of Crime No.515 of 2019 dated 22nd March 2019 with Tofkhana Police Station, Ahmednagar, which set wheels of criminal law in motion. The report was lodged by the victim of the crime, who at the time of incident, was 13 years old. The accused / appellant is the stepfather of the victim.
7. During the course of the investigation, the appellant was arrested at about 05:26 hours on 22nd March 2019. After his arrest, the clothes were recovered from the appellant. As offenses under the Act of 2012 were also registered, the documents pertaining to the date of birth of the victim were also seized. After completion of investigation, the appellant was charge-sheeted. As the appellant did not plead guilty to the charge, which was framed below Exhibit 5 by Special Court (POCSO Act), Ahmednagar, on 09th August 2019, the prosecution relied upon eight witnesses, to prove the guilt of the Shrikant Malani Page 3 of 27
3.APEAL.506.2022 accused.
8. Charges were framed under Section 376(3), 376(C), 376(2)(f), Section 377, and Section 506 of IPC; Section 3 punishable under Section 4 of the Act of 2012; Section 5 punishable under Section 6 of the Act of 2012; as well as Section 9 (n) punishable under Section 10 of the Act of 2012.
9. The incident, which has resulted in setting the criminal law in motion, is narrated by the victim of the crime in the first information report, who was examined as PW-1 . In brief, it was the case of the victim that, at the time of the incident, she was studying in a primary school in the 7th Standard and was residing at Gandhinagar, , with the appellant and her brother Sudhanshu.
10. The mother of PW-1 was residing at Pune, as the quarrel had taken place between the mother and the appellant. According to her, the appellant was her step father and when she was in a nursery, the appellant used to penetrate penis into her mouth and on that count quarrel used to take place between the appellant and the mother of PW-1, which also resulted into beating given by the appellant to PW- 1's mother.
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11. According to the victim, on several occasions she was subjected to the said act, as well as to the unnatural sex and ultimately to vaginal intercourse. The accused also used to gag her mouth and perform the act, and had also stuffed clothes into her mouth, threatening that if the incident is disclosed to anybody, she would be taken to task.
12. It is in this background that PW-1 was examined and criminal law, as already stated, moved further.
13. The learned counsel for the appellant has contended that the story advanced by PW-1 and other witnesses is not trustworthy and is a striking example of false implication. He further submitted that there was a delay in lodging the first information report, which was not explained by the prosecution. According to him, the initial information of the incident was given by the victim to her mother on the telephone and subsequently to the police by dialing the 100 number. He thus submits that it was necessary on the part of Investigating Officer to collect the call details.
14. He further submitted that since the victim was accustomed to using of mobile phone since many years, she could have narrated Shrikant Malani Page 5 of 27
3.APEAL.506.2022 the incident that took place on the first occasion, immediately either to her mother or to the police. According to him, the incident could very well have been narrated by the victim to her grandfather and grandmother, who were residing adjacent to the house of the appellant.
15. In order to show innocence of the appellant, the learned counsel further submitted that no attempt was made by PW-1 or her mother to lodge a report on earlier occasions. The clothes which were seized during the course of investigation did not show any incriminating material (semen or blood). According to him, the story is exaggerated and the appellant was falsely implicated since, on the one occasion, he had seen the mother of PW-1 in a compromising position with a person named Ganesh. He further submitted that even the victim was caught in a compromising position with one Vijay. Since the appellant had scolded them and showed his anger, the mother of PW-1 had asked the victim to lodge the false report.
16. A further defense was taken by the counsel for the appellant that there was a property dispute and, therefore, in order to protect the interest, a false report was filed. According to him, though the prosecution had come with the case that the victim was forcibly Shrikant Malani Page 6 of 27
3.APEAL.506.2022 taken to Ahmednagar, no attempt was made by the victim to raise hue and cry or to inform fellow passengers about forcible taking by the appellant.
17. He further, pointing out to the medical evidence, contended that there is absolutely no evidence brought on record by the prosecution to show that the victim had sustained any injuries either to the anus or to the vagina, which clearly shows that a false story was advanced. According to him, even though the prosecution has come with a story that the victim was subjected to forcible unnatural intercourse, no injury was found to the anus.
18. So far as vaginal intercourse is concerned, the learned counsel for the appellant submitted that it was not mentioned in the first information report and, surprisingly, after the examination of all witnesses, for the first time an application was moved by the victim to the Court requesting that her statement be recorded.
19. He submitted that the said application was allowed by the Court and the victim was examined, in which, the for the first time, she narrated about forcible vaginal intercourse. According to him in order to cover up the loophole, a doctor was also examined to support Shrikant Malani Page 7 of 27
3.APEAL.506.2022 the aforesaid stand taken by the prosecution. According to him, there is neither any reference to vaginal intercourse in the statement recorded under Section 161 of the Cr.P.C. nor in the statement recorded under Section 164 of the Cr.P.C.
20. Challenging the medical testimony, he further submitted that though the victim and the Investigating Officer have stated that the appellant had sustained a fracture to the leg, the same was not mentioned by the doctors while examining the appellant. He thus submitted that the entire story was planted.
21. According to the learned counsel for the appellant, on the day of incident, i.e., on 20th March 2019, a quarrel and scuffle took place between between the grandmother of victim and the appellant, due to which a false case was lodged. He submitted that the doctor, more particularly, PW-8, had admitted that if there is no erection of the penis , then there cannot be the commission of act of rape. He further submitted that the medical evidence was also not believable.
22. Per contra, learned APP submitted that the victim of the crime was a small child of 13 years. According to her, the victim, in her examination-in-chief, has stated her date of birth as 06 th October Shrikant Malani Page 8 of 27
3.APEAL.506.2022 2006. She further submitted that the age of victim was not seriously disputed by the defense and, therefore, the provisions of the Act of 2012 were rightly invoked against the appellant. According to the learned APP, the version of PW-1 is natural and not exaggerated.
23. In order to counter the arguments regarding the delay in lodging the first information report, learned APP submitted that considering the age, it can be said that child did not have the maturity or understanding to such an extent that she would lodge the report immediately. She further contended that the act committed was of a heinous nature, since the accused was nobody else but the stepfather of the victim. She submitted that the trust was betrayed and that the custodian had, in fact, breached the trust. She further submitted that though the defense was taken that there was a dispute regarding the property and, therefore, there was a false implication, no documentary evidence was produced in that regard. She thus prayed for dismissal of the appeal.
24. The learned counsel for the victim, Mr. Narwade, supported the stand taken by the prosecutor and further contended that the evidence was properly appreciated by the Trial Court and there is a ring of truth in the case put forwarded by the prosecution. Shrikant Malani Page 9 of 27
3.APEAL.506.2022 He submitted that there was no dispute regarding the age, since the birth extract below Exhibit 33 was admitted by the defense during the course of the trial. He further submitted that there was absolutely no reason for falsely implicating the appellant.
RIVAL CONTENTIONS FALL FOR CONSIDERATION :
25. PW-1 is the victim of crime, who, in her examination-in-
chief, has stated that her date of birth is 06 th October 2006. Her birth date extract is marked below Exhibit 33, and the same was admitted by the defense during the course of trial. There is, in fact, no serious suggestion or cross-examination on the part of the appellant while cross-examining PW-1 to challenge her age. Thus, I come to the conclusion that, as per Section 2(d) of the Act of 2012, which defines a child as any person below the age of eighteen years, the victim was a child, and therefore, the Act of 2012 was rightly invoked in the present case.
26. PW-1, in her testimony below Exhibit 16, has further stated that at the relevant time she was studying in 7 th standard and was residing at Gandhinagar along with the appellant and the real brother, whereas the mother used to reside at Pune, since there was a quarrel between the appellant and the mother of PW-1. According to her, Shrikant Malani Page 10 of 27
3.APEAL.506.2022 grandparents used to reside in an adjacent house and when she was in a Balwadi / nursery the appellant used to penetrate his penis into to mouth of the victim, and therefore, quarrel between the appellant and the mother of the victim on that count had taken place, which resulted into beating up the mother of PW-1 by the appellant.
27. She further stated that, prior to two years of giving complaint, her mother took her and brother Sudhanshu to Aurangabad; however, the appellant traced them and brought all three again to his house. Thereafter, the appellant beat the mother of PW-1 and drove her away, but kept the victim and her brother in his house. She further narrated the incident, stating that the appellant used to penetrate his penis into her mouth as well as penetrate his penis into the anus of the victim. She submitted that when she used to shout, the appellant used to gag her mouth and sometimes used to put cloth into her mouth, and also threatened her that if the incident was disclosed to anybody, she would be killed. Due to fear, PW-1 did not disclose the incident to anybody.
28. PW-1, in her testimony, narrated that on 20th March 2019 at night, she was preparing food, on that day a quarrel had taken place between the appellant and the grandmother of the victim. After taking Shrikant Malani Page 11 of 27
3.APEAL.506.2022 the meal, she went to sleep along with her brother, at which time the appellant removed her garments, as well as his own clothes, and penetrated his penis into the anus of the victim, due to which she got stomach pain. She further deposed that the act resulted into causing injury to her anus, and when she went to the toilet, she saw that blood was oozing from her anus, and therefore she started crying. At that time also, the appellant told her not to disclose the incident to anybody and threatened to kill her. Therefore, the victim slept by crying whole night.
29. PW-1 has stated that there was pain in her stomach and, therefore, she took the mobile phone of the appellant without his knowledge and rang her mother, to whom the incident was narrated. Her mother told her to do whatever she wished to desire, whereupon the victim replied that she would narrate the incident to the police.
30. The victim stated that the school teacher had told her that, in case of any difficulty, a call could be made on telephone number 100, and therefore, she called the police and narrated the incident. Consequently, the police visited her house and took her and her grandmother in their vehicle.
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31. She submitted that the narration of the incident resulted in the lodging of the complaint and registration of the first information report, which was at Exhibit 17. Thereafter, she was taken to the Civil Hospital at Ahmednagar for examination. Her clothes were produced during the course of examination-in-chief and were marked as articles, so also the clothes of the accused.
32. So far as the cross-examination of this witness is concerned,various questions were put to the victim in order to show that not only the spot was surrounded by many houses, but also that the grandmother and grandfather were residing just adjacent to the place where the victim was residing. In the cross-examination, it was also suggested that when she was in the 5 th standard, she had narrated the incident to the mother, which fact was not disputed by the victim.
33. Further, a defense was sought to be raised that since the victim and her brother were using a mobile phone for playing games, they could have telephoned police earlier. Thus, a story was built that the victim could have very well contacted the police on earlier occasions and she was also aware of the operation of a mobile phone. In her cross-examination, she admitted that prior to the incident, whenever her father went for work, she and her brother used to Shrikant Malani Page 13 of 27
3.APEAL.506.2022 accompany the grandmother.
34. It was also admitted by her that prior to one month, the appellant had sustained a fracture injury as an iron door fell down on his feet. It was tried to be brought on record by way of cross- examination that since she was not attending school regularly, the appellant had scolded her, but the said fact was denied by her. It was suggested to her that between her house and the house of her grandfather, a wall was erected and, a window was affixed to it. According to the learned counsel, therefore, the witness could have easily narrated the incident or raised a hue and cry on the date of incident. A suggestion regarding the mother having an illicit relationship with a person by the name of Avinash was denied by her, so also the suggestion that the victim was found in a compromising position.
35. As far as the incident regarding taking of the victim to Ahmednagar is concerned, the victim admitted that she was in a bus and did not raise a hue and cry. She stated that when she tried to open her mouth, a sleeping pill was given to her and therefore she slept in the ST bus. By advancing the aforesaid version, the accused contended that the story advanced by the victim was false. Shrikant Malani Page 14 of 27
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36. It was also admitted by the victim that on the festival of Holi, a quarrel took place between the grandmother of the victim and the appellant, which also resulted in a scuffle. It was further admitted that the appellant picked up a bat and started beating the grandmother. On the basis of the these admissions, the defense contended that this was the reason for false implication of the appellant.
37. In cross-examination, it was also admitted by the victim that at the police station she was accompanied by her grandmother and the brother of the appellant. She admitted that the incident dated 20th March 2019 was not narrated by her. She also admitted that in the statement recorded under Section 164 of Code of Criminal Procedure, she did not narrate that the appellant had penetrated his private part into the private part of the victim.
38. If the entire testimony of the victim is perused, it would be crystal clear that the victim has categorically stated that not only on 20th March 2019, but earlier also , she was subjected to the sexual intercourse. Just because there is no evidence of vaginal sexual intercourse in form of medical evidence , it cannot be said that the act Shrikant Malani Page 15 of 27
3.APEAL.506.2022 committed by the accused has not been proved.
39. The reason that the prosecution has proved the guilt beyond the reasonable doubt is that the victim has stated that the penis was penetrated in her mouth by the accused. If this piece of evidence is considered in the light of the definition of penetrative sexual assault, it would be crystal clear that Section 3 of the Act of 2012, which defines "Penetrative Sexual Assault as an act of penetrating penis, to any extent, into the vagina, mouth ......" ,is proved by the prosecution. The said offense is then made punishable under Section 4. I find no reason to disbelieve the testimony of the said witness, as her testimony is reliable and cogent.
A holistic reading of her testimony would reveal that she has categorically stated that the act of penetrating penis was done repeatedly by the appellant. Nothing has been brought on record to show that there was any reason for false implication. Further in the peculiar facts and circumstances of the case, it is very difficult to believe that a mother would ask her daughter to falsely implicate a person by asking victim to state that she was subjected to penetrative sexual assault. Even otherwise, by way of cross-examination, nothing was brought on record except suggestions that the mother of the Shrikant Malani Page 16 of 27
3.APEAL.506.2022 victim was found in a compromising position, so also the victim herself.
40. The learned counsel has stated that though the victim was aware of the operation of a mobile phone and had been using a mobile phone since long, she did not inform the police about the incident. Suffice it to say that, considering the age of the victim i.e., 13 years, it cannot be said that the victim could have gathered the courage immediately to narrate the incident, either to the police or to her relative. Disbelieving the evidence of the victim on that ground would amount to doing injustice to the version advanced by the child witness. The defense has failed to bring any substantial material on record to disprove the case of prosecution.
41. Coming to the medical evidence, the victim was first medically examined on 22/3/19 by PW-2, Dr. Vidya Shingare, who was working as a Medical Officer at the Civil Hospital, Ahmednagar. . She stated that the history of the incident was narrated to her, in which the victim gave a history of multiple episodes of sexual violence from 2017 till 20th March 2019. She stated that she did not find any fresh external injuries over the body and/on genitals and/on anal and peri anal region.
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42. She further stated that she, along with Gynecologist Dr. Narote, examined the victim and found physical injuries on the person of the victim. She noticed an abrasion approximately 0.5 x 0.5 cm on left leg, anterior aspect, and swelling approximately 1.5 x 1.5 cm on left leg, anterior aspect, lower 1/3rd. The genital examination of the victim girl was conducted. She stated that swelling and redness were seen over labia majora and minora. Abrasions were present over the introitus (vaginal opening) at 4 o'clock on left side and on 8 o'clock position on the right side. Left side 0.4 x 0.3 cm, right side 0.4 x 0.4 cm, and hymen was absent.
43. The said witness stated that there was no bleeding, no fresh external injuries, tear in anal and peri anal region. She further stated that blood samples, samples of pubic hairs, nails, vaginal swab etc., were also collected. PW-2 further stated that since a surgeon was not available at the Civil Hospital, Ahmednagar, she referred the patient to Sassoon General Hospital, Pune, for the same. She then proved the Medico-legal-certificate below Exhibit 22 and the medical certificate of the victim below Exhibit 23.
44. She deposed that she also received the Medico-legal Shrikant Malani Page 18 of 27
3.APEAL.506.2022 examination report of sexual violence from Sassoon General Hospital, Pune. She stated that pubic hair - tanner stage-I non matted, labia majora, clitoris, labia minora, urethra - normal, anus perineum - normal, hymen - multiple old healed tears present. From the history and clinical examination, she stated that there was evidence of penetrative vaginal sexual intercourse, with signs of physical injury, possibly caused by a hard and blunt object, of an age more than 5 days, and simple in nature. According to her, the possibility of oral and anal intercourse could not be ruled out.
45. This witness was cross-examined. It was suggested to her that the injury on the private parts, as discussed above, was possible due to itching and rubbing. The learned counsel thus submitted that it was due to itching and rubbing, the said injury might have been caused. I have gone through the medical evidence, so far as the aforesaid aspect is concerned, suffice it to say that nowhere in the testimony of PW-1, I could notice that a suggestion was given to the victim that she had itching or had rubbed her private part; therefore, the said contention does not support the defense case.
46. As far as the contention of the defense that there was no injury to the vagina and not even to the mouth, which is admitted by Shrikant Malani Page 19 of 27
3.APEAL.506.2022 PW-2, suffice it to say that for proving the offense of rape under I. P. C. and the offense under Section 4 of the Act of 2012, causing of injury is not necessary. Absence of injuries on the person of the victim, more particularly on the private parts, will not absolve the accused.
47. The learned counsel further submitted that while carrying out the medical examination, it was stated that so far as anus is concerned, the opinion given was that there was no bleeding, discharge, tear, oedema and tenderness. According to him, if forcible sexual intercourse is committed by an adult on a child, there would be swelling, redness, tenderness etc. He thus submitted that the case is totally false.
48. It is required to be borne in mind that in the evidence of the victim, she not only stated about vaginal intercourse but also about penetration of penis by appellant into the mouth of the victim. The question of having injuries in such scenario would be difficult, in the peculiar facts and circumstances of the case.
49. The learned counsel has also stated that no proper test was conducted by the medical officer to assess the physical competency of the appellant so as to arrive at a conclusion as to whether the appellant was in a position to perform sexual intercourse Shrikant Malani Page 20 of 27
3.APEAL.506.2022 or not. He further submitted that it has come on record that unless and until there is an erection of penis, there cannot be sexual intercourse. Suffice it to say that the definition of penetrative sexual assault not only speaks about penetration of the penis into the vagina but also in the mouth. Thus, this piece of evidence is also not helpful to the appellant / accused.
50. It is further necessary to look into the evidence of PW-7, who is Dr. Pushpa Narote, who, at the relevant time, was working as a Gynecologist at the Civil Hospital, Ahmednagar. She stated that on 22nd March 2019, she had medically examined the victim and that prior to her examination, PW-2 had examined the victim. She submitted that she had taken a detailed history from the victim and found the injuries, more particularly as defined in paragraph No.2 of her examination.
"2. On genital examination, I find swelling, redness seen over labia, majora and minora. Abrasion present over introitus (vaginal opening). Position of Abrasion at 4 O' Clock of left side and at 8 O' Clock of right side; left side 0.4 x 0.3 cm., and right side 0.4 x 0.4 cm. The hymen was absent."
51. In cross-examination, she stated that the vagina was healthy and that no injury was seen on the inner aspect of vagina. She further submitted that vaginal swab, etc., were taken. In cross- Shrikant Malani Page 21 of 27
3.APEAL.506.2022 examination, again an attempt was made by the counsel to show that the age of injury was not mentioned and that there were no injury to the private parts. Though there was slight redness on labia minora, the defense contended that it might have been possible due to irritation from dirt present on the vulva.
52. At the cost of repetition, it is observed that the victim has not only stated about sexual intercourse through the vagina but also through the mouth. In that view of the matter, the medical testimony will not be of much relevance.
53. Now coming to the testimony of PW-5, the said witness, Dr. Swati Sanap, was serving as a Gynecologist in Sassoon General Hospital at Pune. She stated that on 27 th March 2019, the victim was brought to her and was referred by the Civil Hospital, Ahmednagar, for further opinion and sample collection. The said witness then took a detailed history and conducted a clinical examination. On examination, she found that the hymen - multiple old healed hymenal tears present, and P. V. examination not done. She stated that no evidence of fresh injury, i.e., scar, sinus, discharge was noted. She stated about the injuries on the leg and mentioned that from the history and clinical examination, there was evidence of penetrative Shrikant Malani Page 22 of 27
3.APEAL.506.2022 vaginal sexual intercourse with signs of physical injury, possible by a hard and blunt object, of an age of more than 5 days, and simple in nature.
54. In cross-examination, a similar line was adopted regarding the absence of injuries on the vaginal part. As already discussed in above paragraphs, the definition of Penetrative Sexual Intercourse mentioned in Section 3 of the Act of 2012 is quite exhaustive which will cover various types of acts, including the act of penetrating a penis in the mouth of the victim.
55. PW-3 was the panch who witnessed the recovery of the clothes of the accused and the victim. Suffice it to say that nothing was found either on the clothes of the accused or of the victim, and therefore, the witness can be said to be a formal witness.
56. PW-4 is Dr. Pratik Wagh, attached to Sassoon General Hospital, who stated that he referred the patient to the psychiatric department. I have gone through Exhibit 22, which is the Medico- legal examination report of sexual violence. The history was taken, and the victim (point No.15(f), which is in tabular form), stated that the accused had touched her vagina with his finger and tongue. She Shrikant Malani Page 23 of 27
3.APEAL.506.2022 also stated in detail about the accused touching her breast.
57. Considering the manner in which the incident had taken place, and the fact that the accused / appellant is the stepfather of the victim, I do not find that there was any delay in lodging the first information report. One cannot forget the fact that the victim was merely 13 years old at the time of the incident.
58. In the aforesaid background, I come to the conclusion that the Trial Court has rightly convicted the appellant for the commission of offense punishable under Section 4 of the Act of 2012, as the offense of rape has been proved by the prosecution.
59. A brief discussion regarding applicability of Section 376(3) of the IPC would clear the picture. Section 376 of the IPC punishes the accused for the commission of rape. Section 376(3) of the IPC states that 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. It is not disputed by the defense that at the time of the incident the victim was less than sixteen years; therefore, the conviction awarded under Section 376(3) of the IPC cannot be faulted with.
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60. Now coming to the conviction under Section 376-C of IPC is concerned, it is relevant to mention here that said section speaks about sexual intercourse by a person in authority. It says that whoever, being in a position of authority or in a fiduciary relationship or ......, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in premises to have sexual intercourse with him, such sexual intercourse not amounting to the offense of rape, shall be punished with rigorous imprisonment of either description for a term which shall not less than five years, but which may extend to ten years, and shall also be liable to fine. As there is no evidence to show that victim was either "induced" or "seduced", the appellant is acquitted for commission of offense punishable under section 376-C of the IPC.
61. So far as conviction of the appellant under Section 376(2)
(f) of the IPC is concerned, it speaks about the punishment for rape and further states that whoever, being a relative, guarding or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman. Admittedly, in this case, the appellant was the stepfather and thus was a relative and a person in a position of trust. Thus, this offense stands proved.
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62. So far as the conviction of the appellant under Section 377 of the IPC is concerned, the victim has categorically stated about the act committed by the accused by penetrating his penis into the anus of the victim. Just because there is no medical injury, it doesn't mean that the testimony of the victim is required to be ignored. Thus, the conviction of the appellant is maintained under Section 377 of the IPC.
63. The appellant is also convicted for the commission of offenses of Criminal Intimidation punishable under Section 506 of the IPC. The victim has stated that she was threatened that if the act was disclosed to anybody, she would be killed. Suffice it to say that, considering the age of the victim and the appellant, it can be said that the offense under Section 506 of the IPC is also proved.
64. In the aforesaid background following order is passed.
A. Appeal is partly allowed.
B. Appellant is acquitted for the commission of an
offense punishable under section 376-C of IPC.
C. Conviction of appellant for the commission of
offenses punishable under sections 376(3), 376(2)
(f), 377 and 506 of the Indian Penal Code and under Shrikant Malani Page 26 of 27
3.APEAL.506.2022 Sections 4, 6 and 10 of Protection of Children from Sexual Offenses Act is maintained.
65. The learned counsel, Mr. Ravindra Narwade, who appeared for the victim and was appointed through legal aid, has argued the case in an able manner. He did not even seek any adjournment and opposed the prayer made by the appellant, and also invited my attention to various pieces of evidence. His fees be quantified as per the Rules.
66. In view of the disposal of the appeal, nothing survives in the criminal application and is accordingly disposed of.
( RAJNISH R. VYAS, J. ) Shrikant Malani Page 27 of 27