Bombay High Court
Suresh S/O Govindrao Muneshwar vs State Of Mah. Thr. Pso Ps Sewagram … on 23 February, 2026
Author: Anil L. Pansare
Bench: Anil L. Pansare
2026:BHC-NAG:3294-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 461 OF 2020
APPELLANT : Suresh S/o. Govindrao Muneshwar,
Aged about 63 Years, Occ: Labour,
R/o. Ward No.4, Barbadi, Tahsil and
District Wardha.
//VERSUS//
RESPONDENT : The State of Maharashtra, through its
Police Station Officer, Police Station
Sewagram, District : Wardha.
__________________________________________________________
Mr. Anil Mardikar, Senior Advocate a/b. Mr. S.A. Kanetkar, Advocate
for the Appellant.
Mr. S.S. Doifode, APP for the Respondent/State.
__________________________________________________________
CORAM : ANIL L. PANSARE AND
RAJ D. WAKODE, JJ.
RESERVED ON : 26th NOVEMBER, 2025.
PRONOUNCED ON : 23rd FEBRUARY, 2026.
JUDGMENT (PER : RAJ D. WAKODE, J.)
Heard Mr. Anil Mardikar, learned Senior Counsel assisted by
Mr. S.A. Kanetkar, learned counsel for the appellant, and Mr. S.S.
Doifode, learned APP for the respondent/State.
02. The present appellant has approached this Court seeking
challenge to the impugned judgment and order dated 23 rd October,
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2020, passed by the learned District Judge-2 and Special Judge
(POCSO Act), Wardha, in Special (POCSO) Case No. 40 of 2016,
whereby the learned Special Judge convicted the present appellant for
the offences punishable under Section 376(2)(f)(i) of the Indian Penal
Code, 1860, and Sections 5(i), 5(m), and 5(p), punishable under
Section 6 of the Protection of Children from Sexual Offences Act, 2012
and sentenced him to suffer imprisonment for life, meaning
imprisonment for the remainder of his natural life, for the offence
punishable under Section 376(2)(f)(i) of the IPC and under Section 6
of the POCSO Act. He has also been directed to pay a fine of
Rs.2,00,000/- (Rupees Two Lakhs only), which shall be payable to the
victim.
03. The prosecution case leading to the conviction of the present
appellant is as follows:
PW-2 Dinesh Sudhakar Fulzele, the complainant, is the
maternal uncle of the victim. The victim was residing with her maternal
grandmother and maternal uncles at Mouza Barbadi, Tahsil and District
Wardha. On 11th October, 2015, at about 5:00 p.m., the complainant
was at home, while the victim was playing with her friends near the
house. The complainant took some money from his mother and went
out. Upon his return, the victim also came home and went to his
mother. It was noticed that the victim’s frock was soaked with blood.
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04. The complainant’s mother removed the victim’s clothes,
including her panties, in his presence and saw that the victim’s vagina
was bleeding profusely. When questioned by the complainant’s mother,
the victim stated that she had gone to Bittu’s house to play and that
Bittu’s father had inserted something into her vagina, causing pain and
bleeding. When the complainant questioned her again, she reiterated
the same thing. The victim’s frock and panties were found soaked in
blood.
05. Thereafter, the complainant and his elder brother admitted
the victim to Sewagram Hospital. Upon examination, the doctor
informed them that the victim had been sexually assaulted.
Consequently, the complainant approached the respondent police
station and lodged a complaint on 11 th October, 2015, which is at
Exhibit 22. On the basis of the said complaint, FIR No.345/2015 was
registered against the present appellant on the same day, which is at
Exhibit 23.
06. Pursuant to the registration of the FIR, the respondent
conducted the investigation and, upon completion thereof, filed the
charge-sheet. The learned Trial Court framed the charge against the
appellant vide Exhibit 4. The appellant pleaded not guilty and claimed
to be tried.
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07. In order to bring home the guilt of the appellant, the
prosecution examined total of 14 witnesses and relied upon various
documentary evidence. After the prosecution evidence was concluded,
the appellant examined one defence witness, namely ASI Kishor G.
Kohad, in support of his case.
08. Upon consideration of the charge framed against the
appellant, the evidence led by the prosecution, the defence taken by the
appellant, and after hearing the arguments of the learned counsel for the
parties, the learned Trial Court convicted the present appellant for the
aforesaid offences by its impugned judgment dated 23 rd October, 2020.
Being aggrieved by the said conviction and sentence, the appellant has
preferred the present appeal before this Court.
09. We have gone through the evidence, documents, and the
impugned judgment. We will refer the same to the extent if necessary to
decide the following points that arise for our consideration. We have
recorded our findings thereon for the reasons to follow:
Sr. No. Points Findings
(i) Whether prosecution proves that on Yes.
11th October, 2015 at the house of
the accused at Mouza Barbadi,
accused inserted his finger in the
vagina of the six-year old victim
(who was residing in his
neighborhood) and committed
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penetrative sexual assault and
thereby committed an offence under
Section 5(i)(m)&(p) punishable by
Section 6 of the POCSO Act and
Section 376(2)(f)(i) of the IPC?
(ii) Whether interference is called for in No
the impugned judgment?
(iii) What order? Appeal is dismissed.
REASONS
As to point Nos.(i) to (iii)
10. A perusal of the paper-book and the original record of the
learned Trial Court reveals that the age of the victim at the time of the
incidence, i.e., on 11th October, 2015, was 5 years and 11 months. The
prosecution proved the birth certificate of the victim at Exhibit 24. The
date of birth recorded therein is 27 th November, 2009, and the date of
the incidence is 11th October, 2015. Thus, the victim had not even
completed six years of age at the time of the incidence.
11. The said birth certificate and the date of birth mentioned
therein were not disputed by the present appellant during the
cross-examination of any of the prosecution witnesses and, therefore,
the same stands proved.
12. The victim, in her statement dated 12 th October, 2015, as
well as in her supplementary statement dated 25 th December, 2015,
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specifically narrated the incidence and the crime committed by the
present appellant. The evidence of the victim is at Exhibit 27 (record
page No.42). A perusal of the said evidence reveals that the victim had
specifically attributed the overt act to the present appellant, which reads
thus:
“Bittu used to stay near our house. I used to go to his house to
play. One day when I had gone to Bittu’s house to play, I was
playing on the swing. At that time Bittu’s father inserted his
finger in my organ of urination ‘सू’ची जागा’. I had lot of pain. I
came home and narrated the incident to my grand-mother that
Bittu’s father inserted his finger in my organ of urination ‘ सू’ची
जागा’. Thereafter, she removed my clothes. There was blood on
my clothes. My grand- mother removed my clothes and saw.
Dinesh mama was at home at that time. They took me to the
hospital at Sewagram.
13. A perusal of the further examination-in-chief of the victim
reveals that she identified the appellant before the learned Trial Court.
She specifically deposed on oath that she was scared of him and did not
want to go near him.
14. The learned Trial Court has recorded the demeanor of the
victim as regards the present appellant, which reads thus:
“Witness has cringed at the sight of the accused. She also became
afraid and stated 2 to 3 times that she does not want to go near
him.”
15. The aforesaid demeanor of the victim, even after the lapse of
three years from the date of the incidence, speaks volumes about the
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mental trauma suffered by her and her mental condition upon seeing
the present appellant.
16. In his cross-examination, the appellant attempted to suggest
that the injury sustained by the victim was due to her falling while
playing. The said suggestion was categorically denied by the victim.
Thus, the cross-examination of PW-4 (Victim) could not shake her clear
and consistent examination-in-chief, which pointed towards the guilt of
the present appellant.
17. The testimony of PW-4 (Victim) is duly corroborated by the
testimonies of her mother (PW-3), her maternal uncle and complainant
(PW-2), and their neighbour, Smita Satishrao Tamgade (PW-5). The
learned Trial Court, in paragraphs 14, 15, and 16 of the impugned
judgment, has elaborately recorded how these witnesses corroborated
the incidence as narrated by PW-4 (Victim).
18. There are no material omissions or contradictions in their
testimonies which go to the root of the matter. Though there are certain
minor inconsistencies in the statement of the victim, it must be borne in
mind that she was a minor aged about six years at the relevant time.
Considering her tender age and the trauma endured by her, such minor
inconsistencies were bound to occur. However, these minor
discrepancies do not affect the core of the prosecution case.
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19. The evidence of the aforesaid prosecution witnesses, namely
PW-2, PW-3, PW-4, and PW-5, stands strongly corroborated by PW-6,
Dr. Rahul Uddhav Ramteke, who examined the victim and prepared the
forensic medical report. PW-6 specifically deposed regarding the injuries
found on the private parts of the victim, which reads thus:
“On examination I found that the patient was oriented to time,
place and person but was not co-operative in giving history about
the incident. I found linear abrasion (scratch) on back of trunk of
length 4 cm. Reddish in color. Patient was shifted to OT and
examination was carried under anesthesia. On local examination,
I found in fourchette and introitus/vagina that blood clots were
present in vagina, reddish in color. Hymen was torn at multiple
places, reddish in color with fresh bleeding.”
20. PW-6 further deposed that his findings on medical
examination were consistent with vaginal penetration, with evidence of
hymenal tears at multiple places. He explained that such hymenal tears
can occur only when there is penetration to a certain depth. He further
clarified that insertion of a finger into the hymen could cause such
injuries. Thus, the evidence of PW-6 strongly corroborates the
prosecution case regarding penetrative sexual assault upon PW-4
(Victim) by the present appellant.
21. PW-6 proved the forensic medical report, which was
exhibited at Exhibit 36. A perusal of the said report reveals that there
was active bleeding at the time of examination. Owing to the tender age
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of the victim, the examination was conducted in the operation theatre
under anesthesia. Blood clots, reddish in colour, were found in the
vagina. The hymen was torn at multiple places and was reddish in
colour with fresh bleeding. The doctor concluded that the findings were
consistent with vaginal penetration with evidence of hymenal tears at
multiple places.
22. PW-6 also proved the discharge summary of PW-4 (Victim),
which is at Exhibit 38 (record page No.58). The discharge summary
clearly supports the prosecution case regarding vaginal bleeding caused
by penetration of a finger, resulting in rupture of the hymen and the
presence of intravaginal clots, which were removed and cleaned at the
hospital. Thus, the medical evidence strongly corroborates the
prosecution case and establishes the guilt of the accused.
23. At this stage, it would be relevant to consider the definition
of “rape” as provided under Section 375(b) of the Indian Penal Code,
1860, which reads thus:
“(b) inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a woman
or makes her to do so with him or any other person;”
Thus, Section 375(b) of the IPC provides that the insertion
of any object or a part of the body, not being the penis, into the vagina,
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urethra or anus of a woman shall be rape as per the aforesaid section.
The medical evidence clearly showing the penetration of a finger into
the vagina of the victim by the appellant is duly proved and thus it can
be safely concluded that the appellant has committed an offence under
Section 376 of the IPC.
24. The same position emerges from the scientific evidence.
According to the prosecution, the frock and panties of the victim were
soaked in blood. The Investigating Officer noticed blood stains at the
spot, including on the stairs and on the road. He collected, seized, and
sealed the said bloodstained material, including cement concrete mixed
with earth, with the help of a hammer and chisel while preparing the
spot panchanama. The clothes of the victim were also seized from PW-2
Dinesh S. Fulzele.
25. The requisition dated 30th November, 2015, for sending the
seized muddemal property to the Regional Forensic Science Laboratory,
Nagpur, is at Exhibit 45 (record page No.67). In response to the said
requisition, the Investigating Officer received the report dated
20th August, 2016, from the Regional Forensic Science Laboratory,
Nagpur, which is at Exhibit 82 (record page No.121).
26. A perusal of the said report reveals that the blood detected
on the clothes of the victim, as well as on the cement concrete mixed
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with earth, was human blood. Further analysis was conducted by the
Assistant Chemical Analyzer at the Regional Forensic Science
Laboratory, Nagpur, by preparing a DNA profile. The DNA profile
revealed that the DNA found on the exhibits was identical and matched
with the DNA profile obtained from the bloodstained sample of the
victim. Thus, the Chemical Analyzer’s report also corroborates the
prosecution case.
27. When the appellant was questioned by the learned Trial
Court regarding the aforesaid incriminating findings, he failed to offer
any explanation and raised a two-fold defence, namely, that of alibi and
false implication, which reads thus:
“On the date of the incident, I had left the house at 8.00 am. for
my duty at Walfad Petrol Pang I was working as a Manager there.
I used to return home at 7.00 to 8.00 pm. I am not aware about
the incident at all. The police came to my house at about 10.00 to
10.30 pm. that night. I had guests in my house that day since it
was a Sunday. I was sleeping at night with my wife. I do not know
what happened. Police woke me up from my sleep and informed
me that an offence is registered against me and that I should
accompany them to the police station. I changed my clothes and
went to the police station along with my son on his motorcycle.
Police made enquiry with me. Since I did not know anything
about the incident, I became confused. I told the police that I
came home at night, had dinner and slept. I told them that I was
sleeping because I had to attend duty the next day. I do not know
anything about the incident. In 2014 my wife had stood for
elections for the opposition party and her opponent was Rajvilas
Domaji Moon. He used to persuade us to join him and fight the
elections together. However, we did not want to be on his side.
The elections got over. He was the friend of Dinesh Fulzale. We
had an argument with Rajvilas during elections. I therefore feel
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that Rajvilas has filed this case as a revenge because of the said
dispute. I do not know anything else.”
28. However, the aforesaid defence raised by the appellant is not
supported by the suggestions put forth in the cross-examination of the
prosecution witnesses. Though the appellant raised the plea of alibi,
except for his bare statement, there is not an iota of evidence on record
to substantiate the said plea. The appellant has not even remotely
established his absence from the scene of offence, either through
cross-examination of the prosecution witnesses or by examining any
defence witness in support of his case.
29. Further, the appellant did not put any question to the
prosecution witnesses, particularly PW-5, regarding any alleged enmity
with him. On the contrary, in the cross-examination of PW-3, it was
suggested that she was a neighbour of the appellant, that they shared
cordial relations, and that there was no dispute between them. Such
cross-examination at the instance of the appellant clearly washes out the
defence of false implication.
30. In fact, during the cross-examination of PW-4 (Victim), the
appellant attempted to suggest that there was a broken tree lying near
his house, that the victim used to play on the said tree along with her
friends, and that on the day of the incidence she fell while playing and
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sustained injuries. The said suggestion was categorically denied by the
victim. Nevertheless, it is evident that the defence was sought to be
developed on the theory of accidental injury while playing.
31. Further, the cross-examination of PW-6 (Doctor) reveals that
the appellant attempted to suggest that the injury sustained by the
victim could possibly occur if the girl inserted her own finger into her
vagina due to itching. These inconsistent and contradictory defences
taken by the appellant only strengthen the prosecution case. Thus, in
our considered opinion, the learned Trial Court was fully justified in
convicting the present appellant for the aforesaid offences on the basis
of the oral as well as documentary evidence on record.
32. Mr. Mardikar, learned Senior Counsel, invited our attention
to the evidence of PW-1 Nilesh Shende, who is a panch witness to the
spot panchanama. In his examination-in-chief, PW-1 deposed that the
house of the appellant is situated in Ward No.3. Mr. Mardikar further
pointed out the intimation notice dated 12 th October, 2015, issued by
the Investigating Officer, which is at Exhibit 11 (record page No.14). In
the said intimation notice, the sport of incidence is described as “the
residence of the appellant in Ward No.3, Mouza Barbadi.” However, the
spot panchanama dated 12th October, 2015 (Exhibit 12) records that the
house of the appellant is situated in Ward No.4. He vehemently
contended that such a discrepancy regarding the ward number is fatal to
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the prosecution case and creates a serious doubt about the correctness of
the investigation.
33. Mr. Doifode, learned APP, however, submitted that the
aforesaid discrepancy does not go to the root of the matter and does not
render the said spot panchanama inadmissible in evidence.
34. A perusal of the deposition of PW-12, Brijpalsingh
Rajpalsingh Thakur, the Investigating Officer, reveals that he has
specifically deposed that the spot of incidence was the house of the
appellant situated at Mouza Barbadi, Grampanchayat Ward No.4. It is
further noteworthy that, in the entire cross-examination relating to the
spot panchanama, no suggestion was put to the Investigating Officer on
the aforesaid aspect. In view thereof, the ground raised by the appellant
regarding the alleged discrepancy in the ward number deserves to be
rejected.
35. Mr. Mardikar, learned Senior Counsel, then sought to assail
the seizure reports. In that context, he invited our attention to Exhibit
13, the seizure panchanama dated 12 th October, 2015, thereby showing
the seizure of the frock, skirt, cloth and knickers of the victim. He also
referred to another seizure panchanama dated 13 th October, 2015
(Exhibit 70), pertaining to the seizure of the blood samples of the
appellant.
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36. The contention raised is that though the aforesaid muddemal
articles were seized on 12th October, 2015 and 13th October, 2015,
Property No.152/2015 came to be assigned only on 11 th November,
2015. In support of this contention, the appellant examined DW-1, ASI
Kishor G. Kohad (Exhibit 96), to substantiate that muddemal articles
are required to be assigned a property number on the day they are
deposited.
37. However, the record reveals that the appellant did not
cross-examine the Investigating Officer on this aspect. A perusal of the
cross-examination of PW-12 shows that though the witness was
extensively cross-examined in paragraphs 11 and 12 regarding the
seizure panchanama, there is no suggestion whatsoever about any
discrepancy in the assignment of the property number. In the absence of
any such suggestion, the appellant cannot now be permitted to
challenge the seizure panchanama on a ground for which no
opportunity was afforded to the Investigating Officer to furnish an
explanation.
38. Further, it is pertinent to note that the Chemical Analyser’s
report is only a corroborative piece of evidence. The guilt of the accused
stands established primarily on the basis of the substantive evidence of
PW-4 and other prosecution witnesses, which is duly corroborated by
the medical examination reports.
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39. Similarly, with regard to the alleged discrepancy as to
whether the clothes of the victim were seized at her house or at the
police station, all the prosecution witnesses have consistently deposed
that the clothes were soaked in blood. This version is corroborated by
the CA report as well as the DNA profile report. Therefore, the said
ground also deserves to be rejected.
40. Mr. Mardikar, learned Senior Counsel, further invited our
attention to the deposition of PW-1 Nilesh Shende (Exhibit 10, record
page No.11), wherein he admitted that before entering the witness box
he had gone through the contents of the documents. He also referred to
the cross-examination of PW-4 (victim), who admitted that she had
come to Court in the morning and was sitting in the office of the Public
Prosecutor.
41. Mr. Mardikar, learned Senior Counsel, relying upon the
judgment of the Gujarat High Court in Kanbi Vaghji Savji v. State of
Gujarat [AIR 1968 Gujarat 11], argued that the evidence of the
aforesaid two witnesses becomes inadmissible by reason of the bar
under Section 162 of the Code of Criminal Procedure. However, the
cross-examination of PW-4 does not disclose any admission that her
police statement was read over to her immediately before the recording
of her evidence. The same is the position with respect to PW-1.
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42. The Full Bench of the Gujarat High Court in Nathu
Manchhu v. State of Gujarat [1977 SCC OnLine Guj 37] has held thus:
“34. We may now examine the decision of the Division Bench of
the Bombay High Court in State v. Maganbhai Jhaverbhai,
Criminal Appeal No. 460 of 1953 decided by Vyas and Bavdekar,
JJ. on Sept. 29, 1953. The learned Judges were considering the
evidence of one Bai Sabu, daughter of Kashia Khalpa. Her
evidence would have connected the accused of that case with the
offence of murder under consideration. Her case was that while
she was preparing loaves, the deceased all of a sudden hurriedly
entered her house and ran into the back yard in a bleeding
condition. He was closely followed in to the backyard by the six
accused who were armed. Thereupon, she was terrified and ran
away from the house. It was found that her police statement was
read out to her before her evidence was recorded in the
Committing Magistrate’s Court as well as Sessions Court. Her
statement was recorded under S. 164 of the Code by a Magistrate
and before that also her police statement was read out to her. The
case would fall under case No. 1 of the five illustrative cases set
out earlier. Vyas, J. was of the view that on account of reading out
of her police statement at three stages her evidence was
inadmissible in view of the decisions of the Privy Council in
Zahiruddin’s case (48 Cri LJ 679(PC)) (supra). In his opinion,
the view expressed by the Privy Council was not to be confined
“only to the physical use or tangible use of her police statement by
a witness while giving evidence in Court.” The learned Judge
went on to say: “In other words, in order that the
observations of their Lordships made by them in the above
mentioned case may be attracted, the police statement of a
witness need not necessarily be in his hands or before his eyes at
the time of giving evidence in the court.”
“Speaking for myself, I have no doubt that their Lordships’
observations would apply with equal force even if a witness made
a mental use of his police statement, which was just previously
read out to him, because by reason of such mental use, the
witness’s evidence was bound to be moulded by or modelled on
his police statement.” The learned Judge then proceeded to give
illustration of a case in which a witness is “almost made to commit
to memory his police statement before stepping into the witness
box to give evidence”; and reasoned on this basis that the
evidence of such a witness was bound to be almost a copy of his
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police statement. Speaking with great respect, this is an extreme
example; and extreme examples do not become helpful in
interpretation of statute. With regard to Sabu’s evidence, the
learned Judge observed that material parts of her police statement
“must have almost come to be committed to memory” and her
evidence “must have been modelled on her police statement”. In
the end, the learned Judge said that reading over of the police
statement to witness before her stepping into the box amounts to
use of the police statement at the trial. Of course, in the
alternative, the learned Judge also said that the value of Sabu’s
evidence must suffer considerably.
Bavdekar, J. refused to express any opinion on “how far
the evidence of a witness would become inadmissible on the
ground that the witness’ police statement was used to refresh his
memory. He at the same time expressed concern on the practice
of reading over police statement to the witness before he enters
the box and said “it is doubtful how far the practice, which has
been deprecated by this court so often, would stop unless this
court were to hold categorically that the evidence of a witness
would be inadmissible in case his statement to the police was used
to refresh his memory”. What is of utmost significance for our
purpose is the learned Judge’s exposition of the basis of the Privy
Council’s decision in Zahiruddin’s case. The learned Judge said:
—
“But the fact remains that, in the case which was before
their Lordships of the Privy Council, the witness had used the
statement to refresh his memory while he was under examination
in the witness box and it was obvious, therefore, that it could not
be argued with any reason that the statement was not used at the
trial. I am inclined to think that the decision of their Lordships of
the Privy Council to exclude altogether from the evidence the
deposition of a witness given by him in such circumstances was
based not upon the view that the witness’s evidence amounted to
a police statement, but upon the view that it was the policy of the
Legislature to prevent any use of the police statement of a witness
at the enquiry or trial and if the witness was allowed to use his
police statement to refresh his memory when he gave the
evidence, it would be defeating the statute to allow his evidence
to come on record”. (Emphasis supplied), With respect, that is the
correct exposition of the ratio of the Privy Council decision which
was not based on any supposed identity between the police
statement and the evidence given, at the trial. If this is the correct
ratio laid down with respect to actual use of the police statement
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while giving evidence, what logically follows from it cannot be
considered to be the ratio of the Privy Council’s decision. The
said ratio does not apply to the questions referred to this Full
Bench and those questions are not concluded by the Privy
Council decision.
35. We have already seen that in State v. Maganbhai (Cri.
App. No. 460 of 1953, D/- 29-9-1953) (Bom) (supra) it was the
opinion of Vyas, J. alone which laid down that the evidence of a
witness to whom police statement was read over thrice at different
times before she gave evidence in the Sessions Court was
inadmissible on the basis that the bar of S. 162(1) was
contravened. Bavdekar, J., in terms refrained from expressing
definite opinion on this question. The Division Bench of this
High Court consisting of Divan and J.B. Mehta, JJ. in Kathi Moti
Lakha v. State of Gujarat, Criminal Appeal No. 543 of 1962
decided on 21/22nd Nov. 1963 laid down a similar principle after
referring to the decision of the Privy Council in Zahiruddin’s case
(48 Cri LJ 679(PC)) (supra) and Maganbhai‘s case (supra). The
Division Bench of this Court as appears from its judgment
reproduced the observations of Vyas, J. in Maganbhai‘s case
under the impression that that was the decision of the Division
Bench. Speaking with great respect, I am of the opinion that the
interpretation of S. 162 made by Vyas, J. and the Division Bench
of this Court is not correct in view of the conclusion reached by
me as to the interpretation and scope of the prohibition contained
in S. 162(1) in the context of the questions referred to the Full
Bench. It is already shown earlier that the cases covered by the
questions referred to this Full Bench are not governed by the
dictum laid down by the Privy Council in Zahiruddin’s case
(supra).
36. It must, however, be emphasised that the practice of
reading over police statements to witnesses before they enter the
box is not healthy practice.
37. In cases where such practice is resorted to, the
Magistrates and Judges should carefully consider the evidence
given by the witness and decide upon the probative value of such
evidence in view of the facts and circumstances of each case.
38. Answers to the questions referred to this Full Bench
are as under:
(1) The evidence of such witness does not become
inadmissible; its probative value has to be judged in the
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circumstances of each case. No hard and fast rule can be laid
down that in all such cases the evidence of such witness will be of
no value whatsoever.
(2) Reading over of the police statement to the witness
before he enters the box does not amount to contravention of the
prohibition contained in S. 162(1). But the fact of reading over of
the statement may affect the probative value of the evidence of
the witness.
(3) Reading over of such a statement to the witness before he
enters the box does not amount to use of such statement contrary
to S. 162(1). The matter will now go back to the Division Bench.”
43. Thus, so far as PW-4 (victim) is concerned, she has not at all
admitted that her police statement was read over to her prior to the
recording of her deposition before the Court. So far as PW-1 is
concerned, even if it is assumed that he had gone through the contents
of his documents, his evidence cannot be said to be completely
inadmissible. However, the probative value of evidence given by this
witness will be considered as per the facts and circumstances of the case.
44. In the present case, both the oral as well as the documentary
evidence strongly point towards the guilt of the accused. Consequently,
the ground raised by the appellant with regard to alleged improper
refreshing of memory loses its force and is accordingly rejected.
45. The submissions advanced by Mr. Mardikar, learned Senior
Counsel, regarding the presence of guests at the house of the appellant
on the date of the incidence, as well as the non-examination of the
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children who were allegedly playing with the victim, are noted only for
the purpose of rejection. Even if it is assumed that guests were present at
the house of the appellant, the presumption that the accused could not
have committed the offence in their presence runs contrary to the
principles laid down by the Hon’ble Supreme Court.
46. So far as the ground regarding the non-examination of the
minor children playing with the victim is concerned, the same is
unsustainable in law. The victim has categorically deposed about the
guilt of the accused, and her testimony stands corroborated by other
prosecution witnesses, the medical examination reports, and the
Chemical Analyser’s report. No further corroboration was required in
the facts of the case. Hence, the said ground also stands rejected.
47. Mr. Mardikar, learned Senior Counsel, invited our attention
to the evidence of PW-2, Dinesh Fulzele, the complainant, who
admitted in his cross-examination that the victim herself had given the
history of sexual assault to the doctor. He also referred to the deposition
of PW-4 (victim), who stated that she had informed the doctor about
the incidence. It was contended that these statements are contradicted
by PW-6, Dr. Rahul Ramteke, who, in his examination-in-chief,
deposed that the history was narrated by the victim’s maternal uncle.
According to the learned Senior Counsel, such contradiction vitiates the
prosecution case.
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48. Such submission at the behest of the learned Senior Counsel
deserves to be rejected by this Court on the ground that the history is
only one column in the forensic medical report. The main content of
such report is the severe bleeding injuries caused in vagina of PW-4
(victim) resulting in profuse bleeding at the behest of the appellant,
which supported the prosecution case. The medical report clearly
pointed out that the findings are consistent with penetration of vagina
with evidence of hymenal tears at multiple places.
49. Significantly, the aforesaid findings of PW-6 have not been
challenged by the appellant either during cross-examination or before
this Court in the present appeal. In such circumstances, the question as
to who narrated the history to the doctor becomes irrelevant in view of
the categorical medical findings recorded after a detailed examination of
PW-4, which strongly corroborate the prosecution case.
50. The last limb of the argument advanced by Mr. Mardikar,
learned Senior Counsel, pertains to the recording of the FIR. It is
contended that the prosecution failed to examine ASI Sayara Pathan,
who recorded the FIR, and therefore the appellant is entitled to the
benefit of doubt. However, the learned Senior Counsel has not
demonstrated as to what prejudice has been caused to the appellant on
account of such non-examination, particularly when the registration of
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the FIR has been duly proved through the depositions of PW-12, API
Brijpalsingh Rajpalsingh Thakur, and PW-13, PSI Pranita Sonaji Karale.
51. Moreover, it is noteworthy that the appellant has not
disputed the factum of recording of the FIR. In the absence of any
challenge to its registration or any prejudice shown to have been caused,
the said contention is devoid of merit and deserves to be rejected.
Accordingly, Issue No.(i) is answered in the affirmative, and Issue
No.(ii) in the negative.
52. In view of the aforesaid discussion, we are of the considered
opinion that the present appeal lacks merit and is accordingly dismissed.
Pending applications, if any, stand disposed of.
(RAJ D. WAKODE, J.) (ANIL L. PANSARE, J.)
53. At this stage, Mr. Mardikar, learned Senior Counsel, submits
that the appellant is 69 years of age and that the learned Trial Court has
imposed the sentence of imprisonment for life, which means
imprisonment for the remainder of his natural life, for the offences
punishable under Section 376(2)(f)(i) of the IPC and Section 6 of the
POCSO Act.
54. Mr. Mardikar, learned Senior Counsel, places reliance upon
the judgment of the Hon’ble Supreme Court in Criminal Appeal
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No.1072 of 2018 (Umesh Yadav & Ors. vs. The State of Bihar, decided
on 30th October, 2025) and submits that the approach adopted by the
Hon’ble Supreme Court in the said judgment, where the sentence was
modified to a fixed term of 14 years of actual imprisonment considering
the advanced age of the appellants therein, ought to be adopted by this
Court. He, therefore, prays that the quantum of punishment imposed
upon the present appellant be reduced to a fixed term of 14 years.
55. Mr. Mardikar, learned Senior Counsel, has also tendered
across the bar certain documents regarding the health condition of the
appellant to demonstrate that he is not in good health. However, a
perusal of the aforesaid judgment of the Hon’ble Supreme Court reveals
that, in that case, the learned counsel for the appellants had not
challenged the conviction on merits. Furthermore, the incidence therein
had taken place more than three decades earlier, and the offences
alleged were under Sections 302/149 and 323/149 of the IPC.
56. The case in hand clearly defers from the aforesaid case, as the
learned Senior Counsel has extensively argued the appeal on merits.
The incidence in the present case is of the year 2015, and the offence
involved is one of aggravated penetrative sexual assault and rape upon a
minor child aged five years and eleven months, allegedly committed by
the appellant, who was more than 60 years of age at the time of the
incidence.
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57. Section 42 of the POCSO Act mandates that where an act
constitutes an offence punishable both under the IPC, including
Section 376, and under the POCSO Act, the offender shall be liable to
punishment which is greater in degree.
58. The learned Trial Court, while imposing the maximum
punishment upon the present appellant, has recorded the following
reasons:
“It is a well-settled principle governing sentencing policy that the
punishment for the offense should be commensurate with the
gravity of the crime. In the case at hand, a young innocent child
who trusted the accused went to his house to play was meted out
with a grotesque, diabolical and dastardly act by the accused. She
suffered severe injuries which lead to profuse bleeding of her
vagina. She had to be admitted to the ICU. Needless to add that
the victim has endured enormous physical, mental and emotional
pain due to the said offense. The act committed by the accused
wreaks of gross perversion. The photographs of her blood-soaked
clothes and the spot speak volumes of the severe injury inflicted
upon the victim as a result of the sexual assault. The victim had
not even completed 6 years of age on the date of commission of
the offense. Offenses against women and children are on the rise
in our country and need to be dealt with an iron hand.”
59. Thus, for the reasons stated hereinabove, we are not inclined
to accede to the request made by the learned Senior Counsel for
reduction of the sentence of imprisonment imposed upon the appellant.
The said request is, accordingly, rejected.
(RAJ D. WAKODE, J.) (ANIL L. PANSARE, J.)
Signed by: Mr. Vijay Kumar
Vijaykumar
Designation: PA To Honourable Judge
Date: 25/02/2026 18:51:36
