Bombay High Court
Mr. Dinesh Gawas vs State on 11 November, 2025
2025:BHC-GOA:2160
2025:BHC-GOA:2160
CRIA 5.2019
Sonam/vinita
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO.5 OF 2019
Mr. Dinesh Gawas,
Son of Sadanand Gawas,
41 years of age,
Resident of Madant, Nadora,
Bardez, Goa. ... APPELLANT
V/S
1. State
Through Police Inspector,
Mapusa Police Station,
Mapusa-Goa.
2. The Public Prosecutor,
High Court of Bombay at Goa,
Panaji-Goa. ... RESPONDENTS
Mr. Ravi Gawas, Advocate for the Appellant.
Mr. Gaurish Nagvenker, Additional Public Prosecutor for the
Respondent-State.
CORAM : SHREERAM V. SHIRSAT, J.
RESERVED ON : 14th October, 2025
PRONOUNCED ON : 11th November, 2025.
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CRIA 5.2019
JUDGMENT:
1. The present Appeal has been filed challenging the impugned Judgment and Order dated 15.01.2019, passed by the Children's Court for the State of Goa at Panaji in Special Case No. 113/2015, whereby the Appellant/Accused has been convicted for the offence punishable under Section 323 of the IPC and has been sentenced to undergo Simple Imprisonment for period of six months and under Section 8(2) of the Goa Children's Act, 2003 to undergo Simple Imprisonment for a period of one year and to pay fine of Rs. 1,00,000/- (Rupees One Lakh only) and in default to undergo Simple Imprisonment of six months. The Appellant has been acquitted of the offences punishable under Sections 324 and 506(ii) of the IPC.
2. Brief facts of the prosecution's case are as under:
(a) The complaint is filed by the mother of the victim child, who has stated that on 23.02.2015, her son PW1 returned to residence after having lunch and was present at residence, and after attending his tuitions, he returned back to his residence and then went to play in 2 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 the locality at Mandant, Nadora with his friend CW 13 and the complainant went to a hilly area in the village to collect firewood. It is further the case that while she was in the hilly area collecting firewood, she received a call from Mrs. Geeta Vasudev Gawas, who is the primary teacher in the village who asked her where victim was, to which she told that he is playing. Mrs. Geeta informed her that victim is not playing and further informed her that Mr Dinesh had forcefully pulled him, and taken him on his scooter, and requested the complainant to look into the matter whether victim is at home or Dinesh has thrown him somewhere.
(b) The complainant rushed down the hill and on returning, found that her son, the victim was at home sitting on the steps, crying and the complainant mother noticed that he had received injuries on his face, back, hands and legs and there was swelling on the face of her son, the victim. She further inquired with her son as to what had happened, to which the victim informed that at around 5.30 p.m., while playing at Manshiwado, he and his friends, CW9, CW10, and CW14, had a scuffle 3 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 and exchange of words, and he asked CW9 "झवला े " to which CW9 told him "सानिकाया पपाक सां गो" and at that moment Mr. Dinesh who is the father of CW10, who was carrying green grass, his friends approached him and told him something to which he noticed him furiously coming towards him and on sensing danger to life, the victim ran towards Vaddy, Nadora, but Dinesh chased him with his blue colour Vespa scooter and managed to hold him, assaulted him with slaps, kicks then forcibly took him on his Scooter, brought him at Manshiwado, Madant, Nadora, where he was playing with his friend and brought one coconut leaf stalk which was lying on ground and assaulted him, causing him injuries and thereafter left. Further, the victim informed that at the time of incident, some local boys, namely CW 16 and CW 15 and others were playing near the spot.
(c) It is further the case that the mother and the victim met Dinesh, where again there was some exchange of words in filthy language. It is further the case that she returned along with her son to the residence and took her son to the private doctor at the clinic at Colvale, 4 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 Bardez, Goa, who examined her son and gave a prescription for treatment.
(d) It is further the case that due to the pain which her son was having, she did not immediately complain; however, as the pain was not subsiding, she decided to lodge the complaint with the police.
3. The Appellant was thereafter arrested on 27.02.2015 and was released on bail on 05.03.2015.
4. Thereafter investigation progressed, which culminated into the filing of the chargesheet before the Children's Court. The Trial Court framed the Charge to which the Appellant- Accused pleaded not guilty and claimed to be tried.
5. The following points arise for determination in the Appeal:
a. Whether on re-appreciation of the evidence before the Sessions Court, the Judgment recording conviction of the Appellant/Accused of an offence under Section 323 of the IPC and under Section 8(2) of the Goa Children's Act, 2003 is maintainable.5 / 38
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6. To prove the case of the prosecution, the prosecution out of the list of 18 witnesses mentioned in the Chargesheet, certain witnesses were dropped and ultimately only 4 witnesses came to be examined, which are enumerated below:
PW1 Victim PW2 Mother of the victim PW3 Mrs. Geeta Gawas (teacher) PW4 Mr. Yashwant Raikar (the Investigating Officer)
7. After the examination of witnesses concluded, 313 statement of the Accused came to be recorded and after hearing the arguments of the parties, the Appellant came to be convicted of the offence punishable under Section 323 of the IPC and has been sentenced to undergo Simple Imprisonment for period of six months and under Section 8(2) of the Goa Children's Act, 2003 to undergo Simple Imprisonment for a period of one year and to pay fine of Rs. 1,00,000/- (Rupees One Lakh only) and in default to undergo Simple Imprisonment of six months. The Appellant has been acquitted of the offences punishable under Sections 324 and 6 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 506(ii) of the IPC.
8. The Appellant has filed the present Appeal challenging the aforementioned impugned Judgment and Order of conviction.
9. Heard Ld. Counsel Mr Gawas for the Appellant and Ld. Additional Public Prosecutor Mr Nagvenker for the Respondent/State.
10. The first contention raised by the Ld. Counsel for the Appellant is that, in all there were 18 witnesses cited by the prosecution, out of which only 4 witnesses were examined and for the reasons best known to the prosecution, other witnesses were not examined, which according to the Appellant could have falsified the case against the Appellant and hence were not examined. It is further the contention that no person who saw the alleged offence is examined by the prosecution. It is also argued that the doctor who gave the medical certificate is also not examined and even the pancha witness of the scene of offence panchanama is not examined, with the result, neither the injuries are proved nor the panchanama is proved. The Ld. Counsel submitted that the defence of the Appellant is that 7 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 because of the enmity between the Appellant and the father of the PW1, he has been falsely implicated. The Ld. Counsel for the Appellant further argued that PW3 did not name the present Appellant in her evidence in the Court but referred to someone who pulled the boy on a scooter and the person appeared like the Appellant. It is further argued by the Ld. Counsel for the Appellant that as the injuries are not proved, the benefit of doubt should be given to the Appellant/Accused.
11. Per contra, the Ld. Additional Public Prosecutor Mr. Nagvenker, for the State, has vehemently argued that the prosecution has proved its case beyond a reasonable doubt. He has submitted that it is the quality of evidence, which is material, and not the number of witnesses which are required to be examined to prove its case and therefore even if only 4 witnesses are examined the same is not fatal to the prosecution. It is further argued that the offences under Section 323 of the IPC and under Section 8(2) of the Goa Children Act, 2003, have been proved to the hilt. He further submitted that the evidence of PW1 inspires total confidence, and there is no material contradiction or omission brought on record. The PW1 has stuck to his statement and his evidence 8 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 has not been shaken in the cross examination. He further submitted that the testimony of the injured witness is sufficient to convict the accused. It is further the submission that even though the hurt certificate, although exhibited, is not proved as the doctor has not been examined, the ocular evidence will have primacy over the medical evidence and therefore there is no reason to disbelieve PW1. He further submitted that, even for that matter, evidence of PW2 is also crucial in establishing the prosecution's case. He further submitted that the Investigating Officer (IO) has testified about the panchanama and the said panchanama can be proved through the IO, even if the pancha has turned hostile or not been examined. Further, it is submitted that there is corroboration in evidence of PW1 and PW 2 as far as injuries are concerned. It is therefore his submission that the prosecution has proved its case beyond a reasonable doubt and that the conviction of the Appellant be confirmed.
12. The Ld. Additional Public Prosecutor has relied upon the following judgments in support of his contention: 9 / 38
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Mr. Vaibhav Faldessai V/s Officer Incharge in CRIR No. 482/2022(F) Eliza Fernandes v/s State of Goa in CRIA No. 12/2017 Rekha Faldessai v/s State of Goa in CRIA No. 30/2019 Dr. Vasudev Deshprabhu v/s State of Goa in CRIA No. 30/2023 Santosh Khajnekar v/s State of Goa in CRIA No. 10/2017 Subhash Pawaskar v/s State of Goa in CRIA No. 33/2019
13. The Ld. Counsel for the Appellant has relied upon the following judgment of the Apex Court in support of his contention:
Santosh Sahadev Khajnekar v The State of 1 (2010)-10 SCC 259 2 (2024) All MR (Cri) 743 (S.C.) 3 AIR 1972 SC 975 10 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 Goa in Criminal Appeal No(s) 1991 of 2023
14. At the outset, from the records, it can be seen that although there were 18 witnesses, who were cited as prosecution witnesses by the prosecution, only 4 witnesses have been examined to prove the case.
15. It will be apposite to refer to the latest judgment of the Apex Court in Central Bureau of Investigation v Mir Usman @ Ara @ Mir Usman Ali in SLP (cri) No(s) 969/2025 wherein is has been held that "Over a period of time, this Court in many of its Judgments and Orders has said that it is the quality of the evidence that is important and not the quantity. If examination of unnecessary witnesses is delaying the trial, it would serve no good purpose." Therefore, it is not the quantity but the quality of the evidence which is of prime importance. The objection of the Ld. Counsel for the Appellant that only 4 witnesses were examined out of 18 witnesses does not hold any water. The prerogative of examining witnesses is of the Public Prosecutor who is in charge of the criminal trial and therefore his decision cannot be called in question at this stage in the absence of any 11 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 prejudice being shown as to number of witnesses being examined.
16. The Appellant has been convicted under Section 323 of the Indian Penal Code. It will therefore have to been seen whether, from the evidence that has come on record, can the conviction under Section 323 is sustained.
17. Section 323 of the Indian Penal Code is reproduced herein for the sake of convenience Section 323: Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
18. Upon analysis of the evidence of PW1, the injured witness, it can be seen that he has categorically deposed that on 23.02.2015, he had gone to play with his friend (CW13) at around 5.00 p.m. to 5.30 p.m. and that there were many boys playing with them. He has further stated that one boy by name (CW14), while they were playing, had started teasing PW1 "Shridhar Fridhar". It is further submitted that when he went 12 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 to question him, one Pradeep came there and caught his neck, and as he was not releasing his neck, he gave him bad words. He has further submitted that sister of Pradeep by name CW10 was also present at the spot and Pradeep thought that PW1 was abusing his sister CW 10. At that time, the father of CW10 i.e. the present Appellant, came to the spot and upon seeing the Appellant, thinking that he would beat him, PW1 ran away, and at that time, the Appellant came on a scooter and assaulted him with slaps and kicks. He has further categorically deposed that the Appellant slapped him on his face and kicked him on his back and legs for around 5 to 6 times. It has further submitted that the Appellant made him to sit on the scooter, took him to Manshiwado, and after getting down at Manshiwado, he made PW1 to stand and hit him with a coconut stalk (piddo), on his neck and back many times. He also threatened PW1 that he would hang PW1 near his house, to which PW1 started pleading before him to release him.
19. He further stated that he came back home and sat on the steps, and he told his mother about the incident. It is further deposed by him that PW1 and his mother went to question the 13 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 Appellant as to why he had assaulted PW1. PW1 further clarified that he has not abused the daughter of the Appellant and had abused Pradeep for having caught his neck. PW1 has identified the Appellant in the Court as the person who has assaulted him and threatened him. PW1 has also identified the said coconut stalk (piddo). He has also identified the grey colour Vespa scooter as the same one which was used by the Appellant to take him to Manshiwado.
20. The said witness was cross examined; however, nothing could be elicited in the cross examination of PW1 which could discredit the deposition of PW1. There is no cross examination except suggestions put by the Counsel representing the Appellant that because of the enmity between the father and the Appellant, the Appellant has been falsely implicated. However, PW1 has categorically denied this suggestion as well and stated that there was no fight between his father and the Appellant at any time before the incident. As per the Ld. Additional Public Prosecutor, the evidence of PW1 itself is sufficient to convict the Appellant. As per the Ld. Additional Public Prosecutor, suggestion made to witness by defence Counsel and reply to such suggestion would definitely form 14 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 part of evidence and can be considered by the Court. The Ld. Additional Public Prosecutor relied upon the judgment of Balu Sudam Khalde & Anr. v/s The State of Maharashtra . 4
21. The PW2 has deposed that on 23.02.2015, PW1 had gone to play in the evening along with his friends, and she had gone to the village jungle to collect firewood. She deposed that she received a phone call from the teacher, i.e. PW3, on her mobile phone asking about PW1, to which she replied that PW1 had gone to play. PW2 has further deposed that PW3 had told her to go and see what had happened to the victim, after which she immediately came from the jungle and saw PW1 crying. She further deposed that PW1 told her about the incident and the assault by the present Appellant. She has further identified the Appellant. She has further deposed that she came home and took the victim to the doctor at Colvale, and the victim was having finger marks on his cheeks. She further deposed that PW1 was also having marks of assault with piddo on his legs, and he was in pain. She has further 4 2024 ALL MR (Cri) 743 (S.C.) 15 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 deposed that she took PW1 to the health centre and then lodged a complaint against the Appellant as PW1 was in a lot of pain. She has further identified her signature on the complaint. She has further deposed that the delay in lodging the complaint was due to the fact that PW1 was in pain after the assault. She further identified the piddo, which was shown to her, by which PW1 was assaulted.
22. Even as far as this witness, PW2, is concerned, there is nothing brought on record which would discredit the evidence of the witness. Apart from the suggestion that there was enmity between the husband of PW2 and the Appellant because of which the present Appellant has been falsely implicated, no evidence has been brought on record by which the said witness can be said to be unbelievable. PW1 and PW2 are consistent on the point of injuries. Identity of the present Appellant also gets established and therefore, there is nothing to disbelieve the evidence of PW2.
23. Upon analysis of evidence of PW3, it can be seen that while giving the statement before the police, PW3 has named the Appellant, but in the evidence, she has stated that she saw 16 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 a boy was pulled on a scooter by someone and that the said boy was her ex-student and the person on the scooter appeared like the Accused. She has further deposed that since she saw the boy crying and being taken on the scooter, she called the mother of the said boy and informed her about the incident. She further deposed that she knows the mother of said boy, i.e., PW2, as she was a PTA member. The PW3 has identified the present Appellant in the Court. Even as far as this witness is concerned, beyond suggestions, there is no other material brought on record to disbelieve her. She has corroborated PW2 on the point of informing PW2 about PW1 pursuant to which PW2 went home where she found PW1 sitting and crying with injuries over the body.
24. Evidence of PW1, if perused minutely, there is nothing to disbelieve the version of PW1. There is no reason for PW1 to suddenly falsely implicate the present Appellant. The presence of the Appellant at the spot is not disputed. The suggestion given by the Appellant that due to the enmity of the father of PW1 and the Appellant, the Appellant has been falsely implicated is also categorically denied. PW1 has also identified the Appellant and therefore, in the absence of any 17 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 cross-examination to discredit the evidence of PW1, the deposition has virtually gone unchallenged.
25. Although it is argued by the Ld. Counsel for the Appellant that there is nothing to substantiate the injuries which are allegedly caused by the Appellant, in the absence of the contents of the Hurt Certificate having not been proved. In my opinion, even the ocular evidence can be considered and that ocular evidence will have primacy over the medical evidence. There is no cross examination on the point of injuries sustained by the PW1. The PW2 also corroborates PW1 on the point of injuries. Therefore, even if the contents of the medical certificate is not proved, the evidence of the Injured witness will have a greater weightage than medical evidence. Ocular evidence is considered the best evidence unless there are reasons to doubt it and in the present case, there is nothing to doubt the same. Even the defence taken by the Appellant that because of the enmity between the Appellant and the father of PW1, the present Appellant has been implicated, is unpalatable as it does not inspire confidence. There is no convincing evidence brought on record to discredit version of PW1, the injured witness. 18 / 38
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26. A profitable reference can be made to the judgment of Sri Chikkegowda & ors. V/s State of Karnataka etc. passed in Criminal Appeal No. 541-543 of 2015, in which it was held that:
"23. It is well settled that if there is a conflict in the ocular testimony and the medical testimony/evidence, it is the ocular evidence which will prevail unless found to be totally unreliable. In this regard, reference may be made to the following decision wherein the above principle was reiterated:
23.1. In the judgment of Darbara Singh v.
State of Punjab (2012) 10 SCC 476, it was held that:
"10. So far as the question of inconsistency between medical evidence and ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved..."
(Emphasis supplied) 19 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 23.2. In the judgment of State of U.P. v. Hari Chand (2009) 13 SCC 542, it was held that:
"13. ... In any event unless the oral evidence is totally irreconcilable with the medical evidence it has primacy."
23.3. In the judgment of Pruthviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala & ors (2022) 18 SCC 683, it was held that:
"17. Ocular evidence is considered the best evidence unless there are reasons to doubt it..."
23.4. In the aforesaid decisions, this Court has consistently accorded greater weight to ocular testimony than to the opinion of medical experts, and the same principle governs the case before us."
27. The Ld. Additional Public Prosecutor has placed reliance on judgment of the Apex Court in Abdul Sayeed v. State of M.P. , . The relevant paragraphs are reproduced 5 herein below:
"Injured witness
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built- in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
5 (2010) 10 SCC 259 20 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
33. In State of Haryana v. Bhagirath [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] it was held as follows : (SCC p. 101, para 15) "15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject."
(emphasis added)
34. Drawing on Bhagirath case [(1999) 5 SCC 96: 1999 SCC (Cri) 658], this Court has held that where the medical evidence is at variance with ocular evidence, "it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant' ".
35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the 21 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
"21. ... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the 'credit' of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
[Vide Thaman Kumar v. State (UT of Chandigarh) [(2003) 6 SCC 380: 2003 SCC (Cri) 1362] and Krishnan v. State [(2003) 7 SCC 56:
2003 SCC (Cri) 1577] at SCC pp. 62-63, para 21.]
36. In Solanki Chimanbhai Ukabhai v. State of Gujarat [(1983) 2 SCC 174: 1983 SCC (Cri) 379:
AIR 1983 SC 484] this Court observed: (SCC p. 180, para 13) "13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
(emphasis added)
39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.
28. The Ld. Additional Public Prosecutor has relied upon 22 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 the judgment of Balu Sudam Khalde & Anr. V/s State of Maharashtra6.
"25. APPRICIATION OF ORAL EVIDENCE.
------
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
44. During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities 6 2024 ALL MR (Cri) 743 (S.C.) 23 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same."
29. The mother of the PW1 i.e. PW2 also corroborates evidence of PW1 on the point of injuries found on the person of the PW1, and there is no cross examination on that point. As far as incident in question is concerned, the evidence of PW2 is hearsay based on the information given by PW1. However, the same comes within the ambit of Section 6 of the Indian Evidence Act as the facts narrated are so connected with the incident in question that it becomes a relevant fact to appreciate the evidence of PW2.
30. The Ld. Counsel for the Appellant has argued that scene of offence panchanama conducted by PW4 on 25.02.2015 in the presence of CW2, Datta Naik Redkar and CW3 Sunil Korgaonkar, produced on record through PW2 at Exhibit C- 10 cannot be fully read in evidence, being marked subject to proof of its contents and the panch witness has not been examined. The Ld. Additional Public Prosecutor for the Respondent- State submitted that even though the panchas of scene of offence have not been examined, still it will not be 24 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 fatal to the prosecution as the same has been proved through Investigating Officer. The Ld. Additional Public Prosecutor relied upon the judgment of Himachal Pradesh Administration v Om Prakash , wherein it is observed7 that "In an investigation under section 157 the recoveries could be proved even by the solitary evidence of the Investigating Officer if his evidence could otherwise be believed"
31. It will be pertinent to note that PW2 was present during the panchanama along with PW1 who pointed out the place of offence to IO PW4 at Exhibit 10. PW4 has identified his signature on the said panchanama. The contents of the panchanama can be accepted to the extent that the place of offence was shown to PW4 and the panch witnesses in the presence of PW2 and PW4. The evidence of PW4 can be relied upon to prove the said panchanama.
32. A reference can be made to the judgment of the Apex Court in the case of Mallikarjun and others v State of Karnataka8, although the facts in that case were with 7 AIR 1972 Supreme Court 975 8 (2019) 8 SCC 359 25 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 respect to recovery evidence, wherein it is held as under:
"23. As pointed out earlier, based on the disclosure statement of accused No.1, MO-1- dagger, which was kept hidden in the haystack of fodder in the loft of the cattle shed behind the house of accused No.1 had been seized under Ex.- P9-Panchnama in the presence of panch witnesses PW-8-Chandrappa and PW-9- Mahadevappa Needgera. The said panch witnesses have not supported the prosecution case and turned hostile. MO-2-dagger and MO- 3-handle of the axe were recovered from the scene of occurrence under Ex.-P7-spot panchnama. On behalf of the accused, learned senior counsel contended that the evidence of PW-17-PSI as to the recovery of MO-1-dagger at the behest of accused No.1 is doubtful and when PWs 8 and 9 have turned hostile, no weight could be attached to the alleged recovery of MO-1-dagger. There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the Investigating Officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. In Rameshbhai Mohanbhai Koli v. State of Gujarat and others (2011) 11 SCC 111, it was held as under:-
"33. In Modan Singh v. State of Rajasthan (1978) 4 SCC 435 it was observed (at SCC p. 438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra (2001) 9 SCC 362.
34. In Anter Singh v. State of Rajasthan (2004) 10 SCC 657, it was further held that: (SCC p. 661, para 10) "10. ... even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated."
35. This Court has held in a large number of cases that merely because the panch witnesses 26 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case, Krishna Gopal case and Anter Singh case.)"
PW-17-PSI has clearly spoken about the recovery of MO-1-dagger at the behest of accused No.1 and MO-2-dagger and MO-3-handle of the axe from the scene of occurrence and his evidence cannot be discarded merely because panch witnesses have turned hostile."
33. Although there is delay in lodging the complaint on behalf of PW2, but PW2 has offered a valid reason that because her daughter, who is very small, was unwell, husband of PW2, was working abroad, and the injuries of assault not subsiding, that there was a delay of two days in lodging the complaint. The PW2 has also not been cross-examined, nor that any suggestion has been put that the delay was utilised in devising a ploy to falsely implicate the present Appellant in a false case. Minor discrepancy in the colour of the scooter does not discredit the testimony of PW2.
34. Considering the evidence on record, I am of the opinion that the trial Court has correctly appreciated the evidence on record and has rightly convicted the Appellant under Section 323 of the Indian Penal Code for having voluntarily caused 27 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 hurt to PW1.
35. The Appellant has also been convicted by the trial Court for the offence under Section 2(m)(i), punishable under Section 8(2) of the Goa Children's Act, 2003. It will be therefore necessary to see from the evidence on record, whether the Appellant can be convicted under the said Section 8(2) of the Goa Children's Act, 2003.
36. Section 8 of The Goa Children's Act 2003 defines what is Child Abuse.
8. Child Abuse "[and trafficking]. -- (1) All children should be assured of a safe environment. A safe environment is an environment in which he/she will not be abused in any way and his/her development will be nurtured.
[(1A) Child Trafficking shall be an offence punishable under this Act. Any person who commits or aids or abets in the child trafficking shall be punishable with imprisonment for a term which may extend to seven years and a fine which may extend to Rs. 1,00,000/;].
(2) Whosoever commits any [child abuse or sexual assault] as defined under this Act, shall be punished with imprisonment of either description for a term that may extend to three years and shall also be liable to fine of Rs. 1,00,000/- Whoever commits any Grave Sexual Assault shall be punished with imprisonment of either description for a term that shall not be less than [ten years] but which may extend to [life imprisonment] and shall also be liable to a fine of Rs. 2,00,000. Whoever commits shall be punished with imprisonment of either description 28 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 for a term that may extend to three years and shall also be liable to fine of Rs. 1,00,000/-. Whoever commits any Grave Sexual Assault shall be punished with imprisonment of either description for a term that shall not be less than 4[ten years] but which may extend to [life imprisonment] and shall also be liable to a fine of Rs. 2,00,000. Whoever commits incest shall be punished with imprisonment of either description for a term that shall not be less than ten years but which may extend to life imprisonment and also a fine which may extend to Rs.2,00,000/- [Statement of the child victim shall be treated on par with the statement of a child rape victim] under Section 375 of the IPC, as laid down by the Supreme Court of India.
Section 2(m) defines Child Abuse "Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following:--
(i) psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
(ii)any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;
(iii) unreasonable deprivation of his basic needs for survival such as food and shelter; or failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death"
37. The Hon'ble Apex Court in the latest judgment of Santosh Sahadev Khajnekar V/s The State of Goa, reported in Criminal Appeal No.(s) 1991 of 2023 has been pleased to observe as under 29 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 "13. On a bare perusal of the above provisions, it is evident that the offence of "child abuse" as provided under section 8 cannot be attracted to every trivial or isolated incident involving a child, but must necessarily co-relate with acts involving cruelty, exploitation, deliberate ill- treatment, or conduct intended to cause harm. The legislative intent is to protect children against serious forms of abuse and not to criminalise minor, incidental acts emanating during the course of simple quarrels.
14. The only allegation against the appellant as borne out from the statement of PW-3, the injured child is that the appellant hit him with the school bag belonging to his own son. Even if we accept the injured child's version in entirety, it would still not be sufficient to hold the appellant guilty for the offence of "child abuse" punishable under Section 8 of the Act of 2003.
15. The offence of child abuse necessarily presupposes an intention to cause harm, cruelty, exploitation, or ill-treatment directed towards a child in a manner that exceeds a mere incidental or momentary act during a quarrel. A simple blow with a school bag, without any evidence of deliberate or sustained maltreatment, does not satisfy the essential ingredients of child abuse. To invoke the penal consequences of such a serious offence in the absence of clear intention or conduct indicative of abuse would amount to an unwarranted expansion of the provision."
38. From the above judgment it can gathered that the Hon'ble Supreme Court has observed that offence of "child abuse" as provided under Section 8(2) and 2(m) of the Goa Children's Act, 2003, cannot be attracted to every trivial or isolated incident involving a child, but must necessarily co- relate with acts involving cruelty, exploitation, deliberate ill- 30 / 38
11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 treatment, or conduct intended to cause harm and the legislative intent is to protect children against serious forms of abuse and not to criminalise minor, incidental acts emanating during the course of simple quarrels. The offence of child abuse necessarily presupposes an intention to cause harm, cruelty, exploitation, or ill-treatment directed towards a child in a manner that exceeds a mere incidental or momentary act during a quarrel. A sudden reaction in the heat of the moment, without any evidence of deliberate or sustained maltreatment, does not satisfy the essential ingredients of child abuse.
39. In the present case, the allegation against the appellant is that, upon bad words being hurled at the daughter of the Appellant, the Appellant assaulted the PW1. This is an isolated incident. Merely because the victim is a child, by itself, cannot be sufficient to constitute an offence under Section 8. Even if the version of the PW1 is accepted in the entirety, it would still not be sufficient to hold the Appellant guilty for the offence of "Child Abuse" punishable under Section 8 of The Goa Children's Act, 2003. No doubt that the provisions of the Goa Children's Act was enacted with a laudable object of ensuring that the children in Goa are assured of a safe environment in 31 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 which the child will not be abused in any way and the development will be nurtured. However, considering the facts of the present case, which is a solitary incident, does not satisfy the essential ingredients of "child abuse".
40. Therefore, in my opinion, taking into consideration the facts of the present case, the trial Court has erred in convicting the Appellant under Section 8(2) of The Goa Children's Act, 2003 and therefore deserves to be acquitted for the said offence.
41. Another aspect which cannot be lost sight of is that offence punishable under Section 323 IPC carries a maximum punishment for one year and therefore, considering the facts of the case, whether the benefit of the Section 4 of the Probation of Offenders Act,1958 can be extended to the present Appellant?
42. The Hon'ble Apex Court in Chellammal and Another V/s State Represented by the Inspector of Police in Criminal Appeal No. 2065 of 2025, has been pleased to observe as under:
"23. At the dawn of this century, this Court in 32 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 Commandant, 20th Battalion, ITB Police v. Sanjay Binjola dwelled on the object of the Probation Act and what was held has been echoed, fairly recently, in Lakhvir Singh v. State of Punjab. After noticing the Statement of Objects and Reasons22 of the Probation Act, the coordinate Bench in the latter decision observed that the SoR explains the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, the increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society."
24.The decision in Hari Singh v. Sukhbir Singh provides the guiding light as to how first- time offenders are to be dealt. It was observed therein that:
"8. ... Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the court encourages their own sense of responsibility for their future and protects them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not shown to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate."
26. On consideration of the precedents and based on a comparative study of Section 360, Cr. P.C. and sub-section (1) of Section 4 of the Probation Act, what is revealed is that the latter is wider and expansive in its coverage than the former. Inter alia, while Section 360 permits release of an offender, more twenty-one years old, on probation when he is sentenced to imprisonment for less than seven years or fine, Section 4 of the Probation Act enables a court to 33 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 exercise its discretion in any case where the offender is found to have committed an offence such that he is punishable with any sentence other than death or life imprisonment. Additionally, the non-obstante clause in sub- section gives overriding effect to sub-section (1) of Section 4 over any other law for the time being in force. Also, it is noteworthy that Section 361, Cr. P.C. itself, being a subsequent legislation, engrafts a provision that in any case where the court could have dealt with an accused under the provisions of the Probation Act but has not done so, it shall record in its judgment the special reasons therefor.
27. What logically follows from a conjoint reading of sub-section (1) of Section 4 of the Probation Act and Section 361, Cr. P.C. is that if Section 360, Cr. P.C. were not applicable in a particular case, there is no reason why Section 4 of the Probation Act would not be attracted.
28. Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in subsection (1) of Section 4 of the Probation Act are attracted, the court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event, the court in its discretion decides to extend the benefit of probation, it may upon considering the report of the probation officer impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the court to record the reasons therefor.
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29. For the foregoing reasons and in the light of the factual matrix, we are unhesitatingly of the opinion that the Sessions Judge and the High Court by omitting to consider whether the appellants were entitled to the benefit of probation, occasioned a failure of justice.
Consequently, there was no worthy consideration as to whether the appellants could be extended the benefit of probation".
43. In Santosh Sahadev Khajnekar V/s The State of Goa reported in Criminal Appeal No.(s) 1991 of 2023 (supra) has been pleased to observe as under:
"19. At this stage, we may note that the offence punishable under Section 323 IPC carries maximum punishment of simple imprisonment for one year whereas offence punishable under Section 352 IPC carries maximum punishment of imprisonment for three months. Thus, the mandatory provision of Section 4 of the Probation of Offenders Act, 1958 would apply and the appellant deserves to be given benefit thereof."
21. We, however, confirm his conviction for the offences punishable under the Sections 323 and 352 of the IPC. Instead of making him to undergo the sentence immediately, the appellant shall be released on probation upon furnishing bonds before the jurisdictional trial Court, within a period of three months from today to keep peace and good behaviour for a period of one year."
44. In the facts of the present case, considering the fact that the offence punishable under Section 323 IPC carries a maximum punishment for one year, the mandatory provision of Section 4 of the Probation of Offenders Act, 1985 would 35 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 apply, and the Appellant deserves to be given the benefit thereof. The conviction for the offence punishable under Section 323 IPC is confirmed.
45. The Appellant is acquitted for the charge of the offence punishable under Section 8(2) of The Children's Act 2003. The impugned judgment is set aside to that extent. The conviction for the offence punishable under Section 323 of the Indian Penal Code is confirmed. While maintaining the conviction under Section 323 of the IPC, but considering the facts and circumstances of the case, the matter is remanded to the trial Court for limited consideration on the question of grant of probation to the Appellant upon obtaining a report of the relevant probation officer keeping in mind the pronouncement of the Apex Court in the case of Chellammal and Another v State Represented by the Inspector of Police (supra). The trial Court, considering the report of the Probation Officer can fix the period of probation.
46. It be noted that, the Trial Courts, considering the facts of each case and in appropriate cases need to consider the extension of beneficial legislation applicable to first time 36 / 38 11th November 2025 ::: Uploaded on - 11/11/2025 ::: Downloaded on - 11/11/2025 20:58:39 ::: CRIA 5.2019 offenders instead of sentencing to imprisonment, which would be a step towards reformation and rehabilitation of the first time offenders. All offenders are not dangerous criminals, but some of them have weak character, or some of them surrender to temptation or provocation or sometimes in a fit of rage, certain acts are committed, the consequences of which are not envisaged on the spur of moment. In placing such type of offenders on probation, the possible stigma of being a criminal can be avoided. Of course, the offender cannot seek an order for grant of probation as a matter of right but considering the salutary object, grant of probation seeks to achieve, unless applicability of Section 4 of the Probation of Offenders Act is excluded and in cases where circumstances stated in sub-Section (1) of Section 4 of the Probation of Offenders Act are attracted, the Court has no discretion to omit from its consideration release of the offender on probation. On the contrary a mandatory duty is cast upon the Court to consider whether the case before it warrants releasing of the offender upon fulfilment of stated circumstances.
47. Hence I pass the following order:
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(i) The Appeal is partly allowed.
(ii) The conviction and sentence of the Appellant under Section 323 of Indian Penal Code vide Judgment and Order dated 15.01.2019, passed by the Children's Court for the State of Goa at Panaji in Special Case No. 113/2015, is confirmed, however the matter is remanded to the trial Court for limited consideration on the question of grant of probation to the Appellant upon obtaining a report of the relevant probation officer and for fixing the period of probation.
(iii) The Appellant is acquitted for the charge of the offence punishable under Section 8(2) of The Children's Act 2003.
(iv) The Appellant is on bail. The fine amount paid by the Appellant be refunded to the Appellant within a period of eight weeks from today.
SHREERAM SHIRSAT, J.
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