Bombay High Court
Nagpur Bench At Nagpur vs The State Of Maharashtra on 17 December, 2025
2025:BHC-NAG:14370
1 apeal-652-2023-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL No. 652/2023
Bandu S/o Shankarrao Kuttarmare : APPELLANT
Aged 53 years, Occu. Service,
R/o Chandrapur,
Tq. & District Chandrapur
Vs.
1) The State of Maharashtra, : RESPONDENTS
Through Police Station Officer,
Police Station Ramnagar, Chandrapur,
Tah. & District Chandrapur
2) XYZ, Victim, (Deleted as per Order
Crime NO. 892/2018, Police Station Dt. 12-11-2024)
Ramnagar, Chandrapur, Tahsil and
District Chandrapur.
Mr. P.R. Agrawal, Advocate for the Appellant,
Mr. S.S. Hulke, Adll.P.P. for the Respondent.
CORAM: NIVEDITA P. MEHTA, J.
Date of reserving the judgment : 09-12-2025
Date of pronouncing the judgment : 17-12-2025
JUDGMENT :
The present appeal has been preferred by the appellant challenging the judgment and order dated 20.06.2023, passed by the learned Additional Sessions Judge, Special Court (POCSO), Chandrapur in Special (POCSO) Case No. 74/2018, whereby the appellant has been convicted for multiple offences under the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
2 apeal-652-2023-J.odt The appellant has been convicted for the offence punishable under Section 354A(ii) of the IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of ₹2,000/-, in default to suffer rigorous imprisonment for six months.
He has further been convicted for the offence punishable under Section 6 of the POCSO Act, read with Sections 376(2)(j)(k) and 376(3) of the IPC, and sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of ₹5,000/-, in default to suffer rigorous imprisonment for twelve months. The appellant has further been convicted for the offence punishable under Section 506 of the IPC, for which he has been sentenced to undergo rigorous imprisonment for one year, and to pay a fine of ₹2,000/-, in default to suffer rigorous imprisonment for three months.
However, the learned Trial Court acquitted the appellant of the offences punishable under Sections 10 and 12 of the POCSO Act.
2. The prosecution case, in brief, is that on 06.09.2018, the informant, who was working as a Counsellor in the District Child Protection Unit, Chandrapur, lodged a report alleging that on the said date, the Chairperson of the Child Welfare Committee, Ms. Varsha Jamdar, telephonically informed Shri Sakharkar, District Child Protection Officer, regarding certain complaints made by the girls residing at Sneh-Deep Balgruha. Acting on such information, Shri Sakharkar instructed the 3 apeal-652-2023-J.odt informant and a social worker, Ms. Pratibha Madavi, to visit the Balgruha. personally and make necessary enquiries.
2.1 Accordingly, at about 10:40 a.m., both officers reached Sneh Deep Balgruha. Each girl residing in the institution was individually interviewed regarding her grievances. During this process, victim R, aged 14 years, studying in the 8th Standard at Hinglas Bhawani Middle High School, disclosed that she had been residing at the Balgruha. for about two months. She narrated that on the 14.07.2018, during the afternoon hours, the appellant had called her into the office, asked her name, pressed her breasts, slapped her on the back, and threatened her with dire consequences if she disclosed the incident to anyone. She further stated that on the 21.07.2018, the appellant again called her under the pretext of providing bathing soap from the office and told her that if she required anything, she should demand the same from him. On the following day, 22.07.2018, the appellant called her to the office, made her sit on a chair, inserted his hand inside her underwear, and when she objected, he pressed her mouth. At that juncture, the sound of the iron gate opening was heard, and the appellant immediately released her and pretended to examine some files. These occurrences allegedly took place on 14.07.2018, 21.07.2018, and 22.07.2018. 2.2 Another girl, victim S, aged 16 years, resident of Vitthal Mandir Ward, Chandrapur, also disclosed that on 29.08.2018, she had gone out of the Balgruha. and returned late at night. On the next morning, i.e., 30.08.2018, between 11:00 a.m. and 12:00 noon, the appellant summoned her to the office, pressed her breasts, slapped her on the back, and questioned her about her whereabouts on the 4 apeal-652-2023-J.odt previous day. The informant recorded the statements of both victim girls R and S, and thereafter lodged the report.
3. Upon receiving the complaint, Police Station Ramnagar, Chandrapur registered FIR No. 892/2018 for offences punishable under Sections 354A(ii), 376(2)(j)(k), 376(3), and 506 of the IPC, and Sections 6, 10, and 12 of the POCSO Act. The Investigating Officer conducted the investigation, recorded statements of witnesses, collected relevant documents, and filed the charge-sheet before the competent Court.
4. The learned Trial Court framed charges under Sections 354A(ii), 376(2)(j)
(k), 376(3), 506 of the IPC, and Section 5(p) punishable under Section 6 POCSO Act, Section 9(p) punishable under Section 10 POCSO Act and Section 12 of the POCSO Act vide Exh.7. The appellant pleaded not guilty and claimed to be tried. His defence was that of complete denial and false implication.
5. To substantiate its case, the prosecution examined eleven witnesses, namely: PW-1 Pratibha Nilkanth Madavi, Social Worker (Exh.14), PW-2 Priya Chandrabhan Pimpalshende, Informant (Exh.28), PW-3 Dr. Mrunalini Yuvraj Jagne, Medical Officer (Exh.39), PW-4 Pushpa Pitambar Ambone, Caretaker at Balgruha. (Exh.48), PW-5 Chandrashekhar Ratnakar Kundarpawar, Superintendent of Balgruha. (Exh.50), PW-6 Victim R (Exh.55), PW-7 Dr. Ghansham Ramchandra Patil, Retired Medical Officer (Exh.58), P.W. 8 Ashwini Shamrao Wakde, PSI (Exh.61), P.W. 9 Raju Madhukar Thiratkar, Deputy Registrar At Nagar Parishad, 5 apeal-652-2023-J.odt Warora (Exh.65), PW 10 Avinash Sudhakarrao Reshimwale, Senior Clerk (Exh.70) and PW 11 Savita Shrikrushna Kaware, API (Exh.79)
6. Upon appreciation of the evidence, the learned Trial Court held that the victim had been subjected to aggravated penetrative sexual assault and that the testimony of the victim inspired confidence. The learned Trial Court concluded that the sole testimony of the victim was sufficient to establish the allegations against the appellant, particularly in view of the presumption under Section 29 of the POCSO Act. The learned Trial Court further observed that the defence had failed to bring on record any material to rebut the said presumption or to cast doubt on the victim's version. The learned Trial Court also recorded that the medical evidence and other supporting witnesses corroborated the testimony of the victim. Accordingly, it returned a finding of guilt for the offences punishable under Sections 354-A(ii), 376(2)(j) and (k), 376(3), and 506 of the IPC along with Section 6 of the POCSO Act. The learned Trial Court, however, noted that victim "S" did not appear for recording of evidence; consequently, the allegations made by her remained unproved.
7. It is pertinent to note that while imposing the sentence, the learned Trial Court applied the amended Section 6 of the POCSO Act, brought into force in 16.08.2019, which prescribes a minimum punishment of 20 years' rigorous imprisonment, extendable to imprisonment for the remainder of natural life, and also providing for the sentence of death. In contrast, the unamended Section 6, applicable at the time of the alleged offence, prescribed a minimum punishment of 6 apeal-652-2023-J.odt ten years' rigorous imprisonment, extendable to life imprisonment. The amended provision reads as follows:
"6. Punishment for aggravated penetrative sexual assault.-- (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."
8. It is evident that the alleged offence in the present matter occurred on 14.07.2018, i.e., prior to the amendment of Section 6 of the POCSO Act which came into force on 16.08.2019. Therefore, the sentence was required to be imposed in accordance with the unamended Section 6, which prescribed a minimum sentence of ten years' rigorous imprisonment. The amended provision, being prospective in nature, could not have been applied to an offence committed prior to its enforcement. Consequently, the sentence imposed by the learned Trial Court on the basis of the amended Section 6 stands legally unsustainable and warrants modification in accordance with the law applicable at the time of commission of the offence.
9. It may be noted that Sections 376(2)(j) and (k) and Section 376(3) of the IPC also prescribe stringent punishment for rape committed on a minor below sixteen years of age, providing for rigorous imprisonment for a term not less than ten years and twenty years respectively, extendable to imprisonment for the remainder of the person's natural life, and also imposing liability to fine.
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10. I have heard Mr. Agrawal, learned Counsel appearing for the appellant, and Mr. Hulke, learned Additional Public Prosecutor for the respondent-State, at length.
11. Submissions on behalf of the Appellant:
The learned Counsel for the appellant, at the very outset, contended that the sentence of 20 years' rigorous imprisonment imposed under Section 6 of the POCSO Act is legally unsustainable. He submits that the enhanced minimum punishment of 20 years under Section 6 came into force with effect from 16.08.2019, and therefore could not have been invoked for an incident occurring prior to the said amendment. According to him, under the unamended Section 6, the minimum punishment prescribed was 10 years, extendable to imprisonment for life, and thus the sentence requires modification. 11.2 He further submits that the victim's version stands materially improved, especially regarding the allegation of sexual intercourse, which she introduced for the first time in her statement under Section 164 Cr.P.C. and her deposition before the Court. The earliest version disclosed to the Snehadeep Balgruha. Committee, and even her subsequent statement, only alleged that the appellant pressed her breasts, slapped on her back and inserted his hand into her underwear. These allegations alone, according to him, may at the highest constitute sexual assault, but not penetrative sexual assault.
8 apeal-652-2023-J.odt 11.3 It is submitted that a comparative evaluation of the victim's statement before the Snehadeep Balgruha. Committee (Exh.51), her statement under Section 164 Cr.P.C., and her deposition reveal substantial embellishments in the prosecution case. The allegation of sexual intercourse was never disclosed in her earliest versions. Learned Counsel emphasizes that the absence of such a grave allegation in the first opportunity available to the victim renders the later improved version doubtful.
11.4. Learned Counsel further submits that the victim never disclosed any allegation of forcible sexual intercourse either to the caretakers, fellow inmates, or even to her relatives though opportunities existed. This conduct, according to him, is inconsistent with normal human behaviour and casts a serious doubt on the reliability of her improved version.
11.5 He also argues that the medical evidence does not support the allegation of penetrative sexual assault. The Medical Officer has only stated that the hymen was ruptured, which, as conceded in her deposition, may be attributable to several causes other than sexual intercourse. The doctor also admitted that the rape kit was not used, and the conclusions regarding penetrative sexual assault were inconclusive. The finger-test findings, as noted by the doctor, are themselves impermissible and carry no evidentiary value.
11.6. The learned Counsel submits that the omissions in the testimony of PW-4 were not duly proved as they were not confronted to the Investigating Officer, 9 apeal-652-2023-J.odt thereby weakening the prosecution case. He reiterates that no other witness has supported the allegation of sexual intercourse.
11.7 He submits that at the highest, an offence under Section 9 of the POCSO Act (sexual assault) may be made out, which is punishable under Section 10, prescribing imprisonment of not less than five years, extendable to seven years.
The appellant, who has already undergone more than seven years of incarceration since 08.09.2018, has thus served the maximum prescribed punishment even if Section 10 were to be invoked.
11.8 He therefore prays that the conviction under Section 6 of the POCSO Act be set aside, and considering the period already undergone, the appellant be released forthwith. He placed reliance on the judgment in The State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, 2022 LiveLaw (SC) 890, and the judgment of this Court in Gajanan @ Raju v. State of Maharashtra and others, Criminal Appeal No. 309/2023.
12. Submissions on behalf of the State:
Per contra, Mr. Hulke, learned Additional Public Prosecutor, submitted that the statements of victims R and S under Section 164 Cr.P.C. clearly indicate that the appellant was sexually assaulting the girls residing in the Balgruha. He, however, fairly conceded that victim R, in her statement under Section 164 Cr.P.C., narrated only the incident of sexual assault and did not specifically allege sexual intercourse. He also fairly stated that in the earliest statement recorded by the 10 apeal-652-2023-J.odt Snehadeep Balgruha. Committee, the allegation of sexual intercourse does not find place, and the said disclosure was made for the first time only on 07.09.2018 before the police.
12.2 Learned Additional Public Prosecutor further submitted that victim S did not enter the witness box, thereby restricting the scope of evidence only to victim R. He also acknowledged that the medical evidence does not conclusively establish penetrative sexual assault.
12.3. He fairly submits that the appellant has already undergone seven years of imprisonment and that the amended Section 6, prescribing the minimum sentence of 20 years, cannot apply in the present case as the incident is prior to 16.08.2019.
Under the unamended Section 6, the minimum sentence is ten years, extendable to life, and therefore the Court may consider exercising discretion while determining the appropriate sentence.
13. Now, coming to the evidence of PW1 - Pratibha Madavi, Panch Witness from District Child Protection Unit: PW1, a social worker requisitioned by the police, has acted as a panch for several procedural steps including spot panchnama, seizure of victim's clothes, relevant service documents, institutional records, blood samples, seizure of appellant's cloths, and electronic material. Her testimony establishes the chain of custody of crucial material objects. She consistently states that all panchnamas were drawn in her presence on different dates, and she has explained the sequence of these events with precision. Her deposition is natural, consistent, and free from material contradictions.
11 apeal-652-2023-J.odt 13.1 The defence suggestion that PW1 signed the panchnamas at one time or upon the say of the Institution is categorically denied, and nothing in cross- examination discredits her credibility. She has given clear topographical details of the spot, thus supporting the reliability of the spot panchnama. The presence of PW1, an independent public servant with no prior enmity, lends assurance to the procedural integrity of the investigation.
13.2 The minor omissions elicited in cross-examination do not shake her version nor create any doubt about the authenticity of the seizure memos or spot panchnama. Hence, PW1's testimony inspires confidence and stands accepted.
14. PW2 - Counsellor and First Informant: PW2 Priya Pimpalshende is a crucial witness as she conducted enquiry on behalf of the District Child Protection Unit and recorded the initial version of both victims. She has given a detailed account of the victims narrating sexual harassment and sexual assault by the accused. She promptly reduced these statements into writing (Exhs.29 & 30) and thereafter lodged a report (Exh.31). Her conduct is consistent with the duties of a counsellor dealing with children in distress.
14.1 The victims' narration to PW2 is spontaneous and independent. PW2 has also cross-verified dates with institutional registers. Her evidence establishes the initial version of the victims, which is crucial in sexual offence cases. Her presence during in-camera police recording of victim statements further corroborates the truthfulness of the victims.
12 apeal-652-2023-J.odt 14.2 Cross-examination does not succeed in impeaching her credit. The defence focuses on alleged lack of enquiry with other girls or staff, but the same is not material, as corroboration from additional sources is not mandatory in sexual assault matters. PW2 appears impartial, having no motive to implicate the accused falsely. Hence, her testimony holds substantial probative value.
15. PW3 - Medical Officer: PW3 Dr. Mrunalini Jagne examined victim R on 07.9.2018 and found a ruptured hymen with one-finger admission, and opined that it was a case of sexual assault. As per the Forensic Medical Examination Report (Exh.42), the overall findings were consistent with assault or sexual intercourse however final opinion was kept pending till receipt of FSL Report. Though defence argued that hymenal rupture may occur due to physical activities, PW3 clarified that her finding was based on clinical examination and not merely on victim history.
16. The refusal of medical examination by victim No.2 has been duly recorded and explained. It does not affect the case regarding victim R, whose medical condition stands independently proved.
17. PW4 - Caretaker Pushpa Ambone: PW4 Caretaker of girl students, is among the first to whom both victims disclosed the incident. She states that victim S first complained on 23.08.2018 about molestation, and soon thereafter victim R narrated in detail the repeated sexual assault committed by the accused. Her evidence constitutes immediate corroborative disclosure, which carries significant evidentiary value under Section 157 of the Evidence Act.
13 apeal-652-2023-J.odt Though PW4 admits she did not witness the act, her testimony about disclosure is trustworthy and natural. Minor omissions regarding threats in her police statement do not amount to material contradictions. These are normal memory lapses and do not overshadow the core fact, both victims reported the misconduct promptly to her.
18. The allegation that PW 4 deposed falsely due to institutional pressure is neither substantiated nor probable. The sequence of reporting through her to the Superintendent appears consistent and logical. PW4's evidence thus reinforces the prosecution case.
19. PW5 - Superintendent Chandrashekhar Kundarpawar: PW5 is the institutional head who received PW4's call on 24-08-2018 and promptly came to the Balgruha. He states that both victims narrated that the accused pressed their breasts, touched them inappropriately, and misbehaved sexually. He immediately informed the Secretary, who made enquiry from the victims and PW 4 Pushpa and immediately dismissed the accused. This demonstrates that the victims' version was considered credible by the institution itself at the first opportunity. 20 PW5 has produced institutional records, committee statements (Exhs.51-
53) and documents seized by the police. The defence's attempt to portray his inquiry as irregular is immaterial, as this is not a departmental proceeding but a criminal trial. What matters is whether his evidence regarding victims' disclosure is credible and it is consistent, spontaneous, and supported by PW4 and PW2.
14 apeal-652-2023-J.odt No major contradiction is elicited in cross-examination to discredit him. His evidence also explains the removal of the accused from service, which constitutes conduct relevant under Section 8 of the Evidence Act, showing that the allegations were taken seriously immediately.
21. PW6 - Victim R: PW6 is the most crucial witness. She gives a detailed and graphic account of two incidents, first on 14.07.2018 involving molestation, and second on 21.07.2018 involving forcible penile-vaginal penetration. Her narrative is inconsistent across her statements, medical evidence, and testimony in Court. 21.1 Her description of being laid on the floor, accused pressing her mouth, removing her clothes, penetrating her vagina, subsequent burning, bleeding, and discharge, are all inconsistent with medical findings of ruptured hymen and pain. Her account regarding threats also explains the delayed reporting. 21.2 There is no material contradiction brought in cross-examination. Her cross- examination is lengthy but fails to show false implication, tutoring, or motive. The defence suggestion about school distance or number of girls does not affect the core issue of sexual assault. Her with time disclosure to co-residents and staff is natural and consistent.
21.3. The victim's testimony alone, if credible, is sufficient for conviction in sexual assault cases. Here, it stands further corroborated by medical evidence, contemporaneous disclosures, institutional action, documentary record, and the absence of enmity with the accused.
15 apeal-652-2023-J.odt
22. PW-7: Dr. Ghansham Patil (Radiologist) : PW-7, the Radiologist, deposed that on 08.09.2018 he conducted the ossification test of the victim and on the basis of the radiological findings opined that the victim was "not less than 14 years and not more than 15 years." He identified his signature on the x-ray report at Ex.59.
In cross-examination, the witness clarified that the ossification test is a recognised scientific method for age estimation and denied the suggestions that the margin of error must necessarily be ±2½ years, or that the report was prepared by a technician or was merely his opinion unsupported by his own examination. Nothing material was elicited to cast doubt on the genuineness of the ossification report.
23. PW-8: Ashwini Shamrao Wakde, PSI: PW-8 stated that on 07.09.2018 she was directed by the SDPO to take over investigation of Crime No. 892/2018. She proceeded to the spot, issued letters to the District Child Welfare Officer for securing panch witnesses (Ex.62), sent intimation to the panchas (Ex.15), and also issued intimation to the photographer (Ex.63). She recorded the statements of the victims R and S in the presence of the District Child Welfare Officer and later handed over the case diary to the regular police officer of POCSO.
In cross-examination, she denied the suggestion that she recorded the statements as per the narration of the District Welfare Officer. Her testimony is largely formal and pertains to initial procedural steps.
24. PW-9: Raju Madhukar Thiratkar, Deputy Registrar (Births & Deaths), Nagar Parishad, Warora Exhibits: Extract of Birth Register Exh.67; Birth Certificate 16 apeal-652-2023-J.odt Exh.68. PW-9 produced the Birth Register maintained by the Nagar Parishad, Warora and proved the entry at Serial No. 699 showing the victim's date of birth as 07.07.2005, based on the report from Rural Hospital, Warora. He filed the certified copy of the birth record at Exh.67 and identified the original Birth Certificate at Exh.68. In cross-examination, he stated that the name of the child was later mutated based on an application submitted by one Prabha Anandrao Ghorpade. He denied suggestions that the date of birth was incorrectly entered or that the extract was false. The defence could not shake the evidentiary value of the official birth record.
25. PW-10: Avinash Sudhakarrao Reshimwale (Senior Clerk, F.E.S. Girls' High School): PW-10 deposed that on receipt of a letter from the Police Station, Ramnagar, the school Principal furnished the Leaving Certificate of the victim S along with covering letters (Exh.72, Exh.73). The Leaving Certificate at Exh.74 bears his signature and reflects the date of birth of victim S as 12.10.2002. He produced the Admission Register for the year 2010-11 and the extract thereof at Exh.75 showing that the victim S were admitted to 5 th Standard on 09.05.2012, coming from Mahatma Gandhi Primary School.
In cross-examination, he stated that admissions are generally granted on the basis of the previous School's Leaving Certificate. He denied the suggestion that the date of birth recorded in the school record was incorrect.
26. PW-11: Savita Shrikrushna Kaware, API: PW-11 is the primary Investigating Officer. She deposed that after taking over the investigation on 17 apeal-652-2023-J.odt 07.09.2018, she issued letters for securing panch witnesses (Exh.80) and drew the spot panchanama (Exh.17) in the presence of panchas after issuing intimation at Exh.16. She took photographs of the spot (Art. P-1 to P-10), issued requisitions to Sneh-Deep Balgruha. for documents (Exh.81), referred both victims for medical examination (Exh.40 and Exh.82), PW 11 seized medical samples and clothes of the victim R and prepared seizure panchanama Exh.20 and Exh.18 respectively. PW 11 recorded the statements of both victims and also obtained their age-related documents through requisitions (Exh.83, Exh.84), sought the birth certificate of victim R from Municipal Council, Warora (Exh.85), sought school records of victim S (Exh.72), arrested the accused under Exh.86, seized his clothes and medical samples (Exh.22, Exh.24), sent muddemal to C.A. (Exh.87), and forwarded the file for recording the victims' statements under Section 164 CrPC (Ex.88). She also seized documents from Sneh-Deep Balgruha. under Exh.19 and ultimately filed the charge-sheet.
In cross-examination, PW 11 admitted that neither victim lodged the initial report and that the case originated from documents seized from Sneh-Deep Balgruha. She also admitted that she did not verify the victims' presence in their respective schools at the time of incident and that she did not produce any documentary proof of school timings or attendance on the relevant day. She denied suggestions that the victims were in school during the alleged incident or that the spot panchanama was falsely prepared in the police station. No material contradiction was elicited, but the omissions do demonstrate certain investigative lapses.
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27. The prosecution has examined PW-1 to PW-11 to substantiate the allegations of sexual assault and penetrative sexual assault on the minor victim residing in the Balgruha. The evidence of the official and panch witnesses broadly supports the procedural steps of investigation, seizure of documents, and chain of custody of the material objects. Their testimonies are largely formal and do not create any substantive doubt against the prosecution. However, the core issue requiring careful scrutiny relates to the nature of sexual act alleged, particularly in view of the defence contention that the allegation of penetrative sexual assault is an improvement and therefore unsafe to accept for sustaining a conviction under Section 6 of the POCSO or Section 376 of the IPC.
28. PW-1, the District Child Protection Unit witness, PW-2 the Counsellor and first informant, PW-4 the Caretaker, and PW-5 the Superintendent, all speak of the victim disclosing sexual misconduct at the hands of the accused. Their testimonies consistently establish that the victim complained of "misbehaviour" and "sexual touching" by the accused. While they also refer to the victim narrating sexual assault, their versions do not always explicitly delineate the act of penetration in clear, specific terms. These earlier disclosures, recorded contemporaneously, assume importance in determining whether the allegation of penile vaginal penetration was indeed stated from the inception.
29. PW-6, the victim, has given a detailed and more elaborate account before the Court describing penile-vaginal penetration. However, when her testimony is juxtaposed with her earliest version before PW-2 (Exh.29) and with the disclosures narrated by PW-4 and PW-5, it appears that the level of detail regarding 19 apeal-652-2023-J.odt penetration in Court is different than what was stated earlier. The improvements are not merely elaborative but are qualitative in nature, inasmuch as the first statement focused on molestation and sexual assault broadly, whereas the deposition introduces more explicit assertions of penetration, accompanied by graphic details.
30. It is well settled that improvements which introduce a new substratum of the prosecution case cannot be lightly brushed aside, particularly when the case rests substantially on the sole testimony of the victim. The victim is a child, and the Court must remain conscious that minor variations are natural. Yet, where the improved version materially alters the nature of the offence, from non-penetrative sexual assault to penetrative sexual assault, the Court must examine such embellishment with circumspection. In Krishan Kumar Malik vs. State of Haryana, (2011) 7 SCC 130, the Hon'ble Supreme Court lays down as follows;
"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.
32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant."
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31. The Hon'ble Supreme Court in Nirmal Premkumar and Another v. State, Rep. By Inspector of Police, 2024 SCC OnLine SC 260, made a reference to the decision in Rai Sandeep alias Deepu vs. State (NCT of Delhi) and observed inter alia 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. On this aspect, the appellant has force in contending that the prosecution has not satisfactorily explained why the earliest disclosure lacked specifics regarding penetration, which were later introduced for the first time.
32. The medical evidence of PW-3 shows a ruptured hymen and one-finger admission. However, PW-3 admitted that hymenal rupture may be caused by activities other than sexual intercourse. The medical examination was conducted several weeks after the alleged incident, further reducing its probative weight for conclusively proving penetration. While the medical findings are consistent with sexual activity, they are not independently conclusive of penile penetration. Thus, the medical evidence cannot be said to eliminate the possibility that the assault 21 apeal-652-2023-J.odt was confined to sexual touching amounting to aggravated sexual assault under Sections 9 and 10 of the POCSO Act.
33. The testimonies of PW-7 (Radiologist), PW-9 (Birth & Death Registrar), and PW-10 (School Clerk) consistently establish the victim's minority. The defence has not disputed the age. However, once penetration itself appears doubtful due to improvements, the question shifts from "whether the victim was a minor subjected to penetrative sexual assault" to "whether the victim was a minor subjected to sexual assault". On the latter question, the evidence is overwhelmingly clear. The disclosures to PW-4, PW-5, PW-2 and the consistent narration of molestation and sexual touch by the accused fully satisfy the ingredients of aggravated sexual assault under Section 9 of the POCSO Act.
34. Investigating lapses noted in PW-11's cross-examination, including non- verification of school attendance and lack of documentation of time overlap, while not entirely exonerating the accused, do create additional hesitation in accepting an improved version of penetration. These lapses strengthen the defence argument that the prosecution has not attained the high threshold of proof required to sustain a conviction under Section 6 of the POCSO Act or Section 376 of the IPC, but nevertheless fully establishes non-penetrative sexual assault.
35. It is thus reasonable to hold that the prosecution has proved sexual assault of a minor, attracting Section 10 of the POCSO Act (Aggravated Sexual Assault), but has not proved penetrative sexual assault beyond reasonable doubt. The presence of improvements in the victim's deposition on material aspects, coupled 22 apeal-652-2023-J.odt with the absence of explicit earlier disclosure and inconclusive medical opinion, renders a conviction under Section 6 of the POCSO Act legally unsustainable.
36. Turning to the question of sentence, it is noted that the appellant has been in custody for about seven years and has no criminal antecedents. The offence, though undoubtedly serious, now stands reduced to one under Section 10 of the POCSO Act, which prescribes a maximum punishment of five years, extendable up to seven years, along with fine.
37. Having regard to the period of incarceration already undergone, the mitigating circumstances on record, and the settled principle that the sentence must be proportionate to the offence actually proved, the appellant is entitled to substantial leniency. In these circumstances, the ends of justice would be adequately met by confining the sentence to the period already undergone as he is under incarceration since his date of arrest i.e. 08-09-2018. Consequently, the conviction is liable to be altered from Section 6 of the POCSO Act to Section 10 of the POCSO Act, with the sentence limited to the period already undergone. Hence, I proceed to pass the following order:
ORDER
(i) Criminal Appeal is partly allowed.
(ii) The impugned judgment and order dated 20-06-2023 passed by the learned Additional Sessions Judge, Special Court (POCSO), Chandrapur in Special (POCSO) Case No. 74/2018 is hereby quashed and set aside.
23 apeal-652-2023-J.odt
(iii) The conviction and sentence for the offences punishable under Section 354-A(ii) and 506 of the IPC and fine as imposed by the trial Court is maintained.
(iv) The conviction is altered from Section 6 of the POCSO Act to Section 10 of the POCSO Act, with the sentence limited to the period already undergone. The sentence of fine for the said offence is maintained.
(v) Rest of operative part of the trial Court's judgement is maintained.
(vi) The appellant be released forthwith, if not required in any other case.
(NIVEDITA P. MEHTA, J.) MPDeshpande Signed by: Mr. M.P. Deshpande Designation: PA To Honourable Judge Date: 17/12/2025 17:25:43