Raju Arunrao Salve vs The State Of Maharashtra And Another on 24 April, 2026

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    Bombay High Court

    Raju Arunrao Salve vs The State Of Maharashtra And Another on 24 April, 2026

    2026:BHC-AUG:18103
    
    
                                                                       CriAppeal-1092-2024
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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD
    
    
                                   CRIMINAL APPEAL NO. 1092 OF 2024
    
    
                     Rajendra Arunrao Salve
                     Age 40 years, Occu. : Nil,
                     R/o. Rohidas Chowk, Belwandi,
                     Taluka Shrigonda, District Ahmednagar.          ... Appellant
                                                                   [Orig. Accused]
                          Versus
    
                     1.   The State of Maharashtra
                          Through Police Station Officer,
                          Shrigonda Police Station,
                          District Ahmednagar.
    
                     2.   XYZ                                        ... Respondents
    
                                                      .....
                     Mr. Nitin V. Gaware, Patil h/f Mr. Z. H. Farooqui, Advocate for
                     Appellant.
                     Mrs. Saie S. Joshi, APP for Respondent No.1 State.
                     Ms. Pooja Apache, Advocate for Respondent No.2 (appointed)
                                                       .....
    
                                            CORAM :         ABHAY S. WAGHWASE, J.
                                            Reserved on         : 18.04.2026
                                            Pronounced on       : 24.04.2026
    
                     JUDGMENT :

    1. Correctness of judgment and order dated 25.09.2024 passed in

    Special (POCSO) Case No. 165 of 2023 recording guilt for offence

    SPONSORED

    under Sections 376(2)(f)(n), 354A of IPC and Section 5(m)(l)
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    punishable under Section 6 of the Protection of Children from Sexual

    Offences Act (POCSO Act) is under challenge at the instance of the

    convict.

    BRIEF RESUME OF PROSECUTION STORY

    2. Victim, who was studying in 4th standard and was barely 9

    years of age, was summoned by accused, her class teacher, in his

    office in the recess time. He initially planted kiss on her lips and

    cheeks and after pulling down her undergarment, he inserted a finger

    in her private part. This happened twice/thrice before Diwali. She

    reported her distress to her aunt, who further reported it to police,

    resulting into registration of crime. On completion of investigation,

    accused was chargesheeted and tried by the Special Court,

    Ahmednagar, who accepted the case of prosecution and returned guilt

    for above offences. Hence, instant appeal.

    SUBMISSIONS/ARGUMENTS

    On behalf of the Appellant :

    3. Learned counsel Mr. Gaware h/f Mr. Farooqui, would criticize

    the judgment and findings on the ground that prosecution utterly

    failed to prove its case beyond reasonable doubt and that narrative of

    prosecutrix does not inspire confidence. While elaborating his above
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    submissions, he first questioned the FIR on the ground of delay. He

    pointed out that, there are vague allegations, that too, by informant

    aunt, who has mere hearsay information. He pointed out that, specific

    date is neither reflected in the FIR, nor it is deposed by the victim and

    therefore, when there is failure to quote exact date of incident either

    in testimony or before the Magistrate, victim’s version cannot be said

    to worthy of credence. He pointed out that it is merely stated in the

    FIR as well as in the testimony of victim that incident happened prior

    to Diwali but, according to him, ‘exactly when’ has not come on

    record.

    4. Learned counsel further submitted that, informant herself has

    admitted in cross that there was no disclosure of any of the earlier

    episodes, i.e. prior to 30.11.2015. He would express surprise as to

    how prosecution failed to bring on record from the testimony of

    victim the exact dates of incidents. He pointed out that alleged

    occurrence is prior to Diwali and thereafter victim had visited her

    parents, spent time with them, but did not even report to them and

    rather came back and at the time of reopening of the school after

    vacation, it is alleged that, she gave information to her aunt.

    Consequently, he questions such narrative of prosecutrix.

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    5. His second attack is on alleged failure of prosecution to prove

    minority of the victim. On such count, he took this Court through the

    testimony of Headmistress PW3 and would submit that, what she has

    produced is mere extract of admission register and that, very source

    of date of birth reflected therein is admitted to be missing. He pointed

    out that, even there are doubtful documents on the point of presence

    of victim on alleged date of occurrence i.e. 30.11.2015 and on such

    count, he compared the material in Exhibit 36 and Exhibit 38.

    According to him, the same are contradictory, and thereby he

    questions the very occurrence alleged by the prosecution. He is very

    assertive that, from the school record it is emerging that victim was

    not present in the school on 30.11.2015 as the attendance register is

    blank.

    In support of above arguments regarding failure to prove

    minority of victim, reliance is placed on the judgment of this Court in

    Kachru Narhari Sarode v. State of Maharashtra and others

    MANU/MH/3466/2026 and the decision of Hon’ble Apex Court in

    Jarnail Singh v. State of Haryana (2013) 7 SCC 263.

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    6. Pointing to the evidence of prosecutrix, he would submit that

    her testimony is also vague on the point of date of occurrence. That

    she had also, in her testimony before the court, failed to specify the

    dates of occurrence and that she rather merely stated that incidents

    took place prior to Diwali and that too, twice/thrice. According to

    him, such vague deposition ought not to have been accepted by trial

    court as it was not inspiring confidence and was not of “sterling

    quality”. On this count he seeks reliance on the decision of the

    Hon’ble Apex Court in the case of Rai Sandeep alias Deepu v. State

    (NCT 0f Delhi) (2012) 8 SCC 21 and in case of Tameezuddin alias

    Tammu v. State (NCT of Delhi) (2009) 15 SCC 566.

    7. On the point of testimony of child witness and need of cautious

    approach while appreciating evidence of child witness, he seeks

    reliance on the decision of Hon’ble Apex Court in Panchhi and others

    v. State of U.P. (1998) 7 SCC 177 and the recent judgment in State of

    Madhya Pradesh v. Balveer Singh (2025) 8 SCC 545.

    8. He would strenuously submit that, here, it has come in the very

    prosecution evidence, more particularly evidence of PW3

    Headmistress that, there was no occurrence that day, nor it was

    reported to her. He pointed out that this witness as well as accused,
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    who are both Headmistress and teacher respectively, had lunch

    together i.e. in the recess and therefore, when nothing was reported

    or known to the superior and colleague of accused, reporting of the

    occurrence at a belated stage, according to him, renders the story of

    prosecution doubtful.

    9. His further challenge is to the finding recorded by the trial

    court, more particularly regarding medical evidence. According to

    him, medical examiner PW4 has not noticed any injuries of violence

    nor there were any external injuries and rather, hymen was found to

    be intact and resultantly, he questions the findings and reasons

    recorded by the trial court while accepting the case of prosecution

    and recording guilt for offence under Sections 376(2)(f)(n) of IPC

    and Section 5(m)(l) and 6 of POCSO Act. According to him, there is

    no iota evidence about penetrative sexual assault, and on this count

    he seeks reliance on the decision of the Hon’ble Apex Court in the

    case of P. Yuvaprakash v. State Represented by Inspector of Police

    (2024) 17 SCC 684 ; 2023 SCC OnLine SC 846.

    10. According to him, here, fatal part for prosecution is non

    availability of testimony of Investigating Officer. On this count he

    emphasized that defence is deprived of opportunity to question the
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    documentary evidence on the point of age and alleged minority of

    victim and thus, great prejudice has been caused to the accused on

    account of non examination of Investigating Officer.

    11. To sum up, he raises serious doubt about case of prosecution to

    be proved beyond reasonable doubt which, according to him, is the

    fundamental principle of criminal jurisprudence and on this count he

    seeks reliance of the judgment of the Hon’ble Apex Court in the case

    of Krishnegowda and others v. State of Karnataka By Arkalgud Police

    (2017) 13 SCC 98. According to him, there are glaring inconsistencies

    on the point of occurrence as well as presence of victim on alleged

    date of occurrence in the school.

    For above reasons, he urges to set aside the judgment and order

    of conviction and to allow the appeal.

    On behalf of the Respondent i.e. State and victim :

    12. In contrast, learned APP as well as learned counsel appointed

    for the victim would put up strong oppose to the above submissions

    by contending that case of prosecution is proved beyond reasonable

    doubt. According to them, here, there is breach of trust of the victim

    by appellant who is her teacher and who, under the garb of
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    educating, called the victim in his office and indulged in above acts.

    They would submit that, trust reposed on the teacher has been

    severely breached.

    13. On the point of age, they would submit that admittedly victim

    was studying in 4th standard when the alleged incidents took place.

    That, her date of birth has come in her testimony as well as her

    statement under Section 164 Cr.P.C. They pointed out that, victim’s

    testimony was recorded when she was in 12th standard. So, on the

    date of occurrence, she must be barely 9 to 10 years of age. Learned

    APP hastened to add that, apart from evidence of Headmistress of the

    school who carried original record, there is evidence of medical expert

    regarding age of the victim determined by dentist and radiologist and

    as such, it is her submission that, there is overwhelming and clinching

    evidence on the point of minority of the victim.

    14. On the point of occurrence, learned APP submits that,

    documentary evidence, more particularly attendance register extract,

    clearly shows that victim was present. Her name is reflected in the

    attendance sheet and moreover, accused, her class-teacher has also

    marked his presence on the said date and as such, she submits that,

    there is no reason to question the occurrence or the date on the
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    ground that there is no reliable evidence. She pointed out that,

    Headmistress PW3 has placed on record extract of admission register

    and she had also carried original register which, according to her, was

    verified in the very court. That, bonafide certificate is also placed on

    record. She would point out that incident had taken place in the

    recess and that merely because PW3 was present and she did not see

    any incident or any incident not to be reported to her, that would not

    mean that there was no occurrence at all. That, only when the child

    was alone, accused had called her in his office and had sexually

    molested her, which the child had not only categorically deposed

    before the court, but has also withstood the cross examination

    without flinching.

    15. Advancing an argument that when the victim’s evidence

    inspires confidence, there is no need for corroboration, both, learned

    APP as well as learned counsel appointed for the victim, still added

    that here, there is confirmation by medical evidence i.e. by the doctor

    who had occasion to examine the victim, and even medical papers to

    that extent confirm the occurrence of assault. For above reasons, they

    justify and support the judgment and order of conviction to be

    perfectly valid and legal and that it needs no interference.

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    BRIEF ACCOUNT OF THE DEPOSITIONS IN TRIAL COURT

    16. In order to establish its case, prosecution has examined in all

    four witnesses. Their role and status as well as the sum and substance

    of their evidence can be summarized as under.

    17. PW1 victim, who was examined in the question-answer form,

    answered that she had passed 12th standard i.e. on the date of

    recording of evidence dated 08.07.2024. After giving her date of birth

    as 31.01.2007, she testified that in the year 2015, she was in 4 th

    standard and studying in Zilla Parishad Primary School. After quoting

    her favourite subject to be history, she named accused to be her class-

    teacher and then deposed that before Diwali vacation in the year

    2015 accused called her alone in the office with slate and pencil and

    he used to take kiss of her lips, cheeks and also used to insert his

    fingers in her private part and rub his hands on her private part.

    According to her, accused committed same type of act three to four

    times before Diwali and she reported the incidents to her aunt and

    accompanied her grandfather as well as such aunt to police station

    where her aunt lodged report and that, then she to be referred for

    medical examination. She deposed that her statement was recorded in

    the court, which she identified to be at Exhibit 24, and stated that at
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    such time her parents, who were vegetable vendors, were residing at

    Surat and she resided with her uncle, aunt and grandparents. After

    the incident, her uncle obtained TC and got her admitted in other

    school. She identified accused in the court to be her class teacher.

    While facing cross, she admitted that office and Headmaster’s

    chamber are two different places and six to seven feet apart. She gave

    the timing of school as 10.00 a.m. to 05.00 p.m. She answered that at

    the time of incident, she had two/three friends. That, her grandfather

    used to drop her at school and pick up her from school. She answered

    that she had no discussion with grandfather about what happened in

    the whole day. In para 4, she answered that she stayed with her aunt

    and admitted not informing her parents any incident taking place in

    the school, nor she shared the incident with her friends in school. She

    answered that she had occasion to go to her parents in both, summer

    and Diwali vacation, and while in 4th standard, she had been to her

    parents, but she did not tell the incident to them. She answered that,

    she does not remember for how many days she stayed with them and

    does not remember after returning from parents’ place, whether after

    seven to eight days school reopened after vacation. She also answered

    that she does not remember the date when school began after Diwali

    vacation when she was in 4th standard. She answered that before
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    Diwali, she used to go to school regularly and even stay at home if

    there was any problem. She answered that, she does not remember

    whether before Diwali vacation there was any dispute between

    accused and other teachers. In para 5 she answered that, at the time

    of incident, 1st and 3rd standard and 2nd standard and 4th standard

    were jointly sitting. She is unable to state strength of staff members in

    the school and unable to remember in November 2015 and December

    2015 for how many days she attended the school. Giving the timing of

    lunch recess as 1.30 p.m. she answered that she used to take lunch

    with her friends and after recess, classes began at 2.00 p.m. She is

    unable to state exact date when the alleged incident is committed by

    accused with her. She admitted that, she did not tell about it to

    anyone. She stated that her statement was recorded in the court while

    her grandfather accompanied her. She answered that at that time,

    court had asked her whether she was willing to give statement and he

    has written in her statement as “No”, but she volunteered that she

    had said “Yes”. She answered that, her statement was read over and

    that time she had not taken objection after reading question no.9. She

    denied being tutored by grandfather, police or aunt. She admitted

    that, she had not stated dates of incidents happened with her to the

    police or to the court. In para 6, she answered that she does not

    remember whether on 30.11.2015 she was present in the school for
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    whole day, and that all students gathered together and shared their

    experience during Diwali vacation. Rest is all denial.

    18. Prosecution has adduced evidence of victim’s aunt as PW2 at

    Exhibit 29 wherein she deposed that her niece who was residing with

    them, in 2015 was 9 years old and studying in Zilla Parishad Primary

    School and her parents used to come to meet occasionally. In para 2

    of chief she deposed that on 30.11.2015 here father-in-law dropped

    the victim in school and in the evening he brought her back after

    which she became fresh, played for some time and when she was

    asked to study, that time victim started crying. She claims to have

    asked the reason of crying and victim allegedly told her that her sir

    Raju Arun Salve called her in the office in lunch break at about 1.30

    to 2.00 p.m. He called her near him, took kiss of her cheek and

    rubbed her private part and inserted finger in it. She also further told

    that such type of incident had taken place with her two/three times

    prior to Diwali and that, victim told that she does not want to go to

    that school. Accordingly witness deposed that she informed her in-

    laws and on next day they went to police station and she lodged

    report which she identified at Exhibit 30.

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    While under cross, she answered that prior to 30.11.2015

    victim was regularly attending school but she had never said that she

    does not want to go to school. To further question, she stated that her

    relation with victim are like daughter and mother. She admitted that,

    before 30.11.2015 victim had not raised any complaint. In para 4 she

    admitted that in Diwali vacation, victim stayed with her for some

    days, went to her parents and resided there for some days. After

    Diwali vacation, victim was regularly going to school. She answered

    that whatever incident was told to her by victim, she did not share

    with anybody. Rest of the cross is not material except that, since 3 rd,

    victim was going to another school.

    19. On the point of age, prosecution had adduced evidence of PW3

    Headmistress who at Exhibit 32 deposed that, she joined school as

    Assistant Teacher in 2008 and became Headmistress in 2011. Said

    school had two teachers. The school had classes up to 4 th standard

    and they used to take 1st and 3rd standard together in one classroom

    and 2nd and 4th standard in another classroom. According to her, out

    of the two teachers, the senior was looking after the charge of

    Headmaster. She testified that accused joined school as Assistant

    Teacher in 17.07.2014. That, victim was studying in their school since
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    1st standard. That, victim was admitted in the school on 19.06.2012

    and in the year 2015 she was studying in 4 th standard. She deposed

    about carrying original admission register. She identified entry of the

    victim at Sr. No.48 and as per school record, her date of birth to be

    31.01.2007. That, victim’s grandfather, demanded bonafide certificate

    of victim from her school. She also deposed about carrying original

    application and that, bonafide certificate was issued as per record of

    admission register and its contents to be true and correct and as such

    it was marked as Exhibit 33. That, entry in the admission register and

    on the xerox copy of the page, on comparison, to be as per original,

    and therefore she tendered Exhibit 34 and there is noting by the court

    that original register is returned to the witness. She further deposed

    that she gave true copy of attendance register of teachers since June

    2015 to December 2015 and also carried original attendance register,

    and answered that on 30.11.2015 accused was present in the school

    as per school record, which she claims to have verified and she placed

    true copy at Exhibit 35. She stated that she had also brought

    attendance register of 4th standard of the year 2015 and placed true

    copy of the register of the month of November 2015 which was

    marked at Exhibit 36. She further deposed that on 30.11.2015 victim

    was present in the school. Diwali vacation in 2015 was from

    05.11.2015 to 24.11.2015 and accused to be class-teacher of 4th
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    standard in 2015. Then she deposed about visit of Shrigonda police

    accompanied by Gramsevak and preparing panchanama Exhibit 37.

    Above witness is subjected to extensive cross, wherein she

    stated that she was present in the school on the whole day of

    30.11.2015 and she and accused had lunch together. She answered

    that on 30.11.2015 she had not left her office. She admitted that on

    02.12.2015 during visit of police for spot panchanama, she had told

    police that no incident had taken place in her presence. She answered

    that victim has not made any complaint to her about any incident

    with her on 30.11.2015. She denied that office remains closed as and

    when she goes to teach in the class. She admitted that on 30.11.2015

    it is noted in the admission register that five students were present

    and one student was absent. In case of presence of student, ‘P’ is

    mentioned and in case of absence ‘A’ is mentioned. She answered

    that, she has handed over true copies of attendance register of

    students of 4th standard since June 2015 to December 2015 and that

    true copy is as per original which is marked at Exhibit 38. She admits

    that there is difference between attendance register Exhibit 36 and

    Exhibit 38 regarding attendance of victim. She admitted that, on

    30.11.2015 ‘A’ is not mentioned in front of student who were absent

    and in Exhibit 38 for the month of November 2015 presentee of
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    student is not mentioned. She admitted that, attendance at Exhibit 38

    was not handed over to police at the time of spot panchanama. She

    answered that victim was absent in school since 26 November to 29

    November. She answered that in original register percentage of

    attendance is mentioned but it is not so mentioned in Exhibit 36. That

    in Exhibit 38, percentage of attendance of student is not mentioned

    and she volunteered that percentage is to be written by class-teacher.

    Admitting that there is difference in original register Exhibit 36 and

    38, she volunteered that variance is only to the extent of percentage

    of attendance of students. She answered that from Exhibit 38 one

    cannot say whether victim was present on the day or not. Witness

    admits that in the admission register, source of date of birth is not

    mentioned. Thereafter witness volunteered that they used to maintain

    separate record of birth issued by Gram Panchayat which she was not

    carrying that day. She admits that entries in the register of 2012 do

    no bear her signature. She denied that, she falsely gave the date of

    birth of victim as 31.01.2007.

    20. PW4 is the doctor, who at Exhibit 41 deposed that while she

    was attached to Civil Hospital as Medical Officer, on 02.12.2015

    victim was brought for medical examination. He accordingly

    conducted it at 4.30 p.m. and after examining the patient, she further
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    referred her to respective departments. She deposed that victim gave

    history of insertion of finger in private part. Perineum and near place

    where Urine is passed before Diwali twice and on Monday 30.11.2015

    and 01.12.2015. History also narrated that, he kissed her lips. No

    history of removal of clothes and just pulling down pant inserted

    finger by Raju Arunrao Salve in his office. Expert did not notice

    external injury on chest, breast, abdomen, neck, back, thigh and other

    parts. She further testified about referring the patient to gynecologist,

    dentist, psychiatrist and radiologist. She deposed that in gynecology

    Department, Doctor Bangar examined her who gave report that libia

    majora and minora are developing, hymen intact, no bleeding, there

    is no sexual contact. Dentist gave age of victim as 9 to 10 years.

    Psychiatrist gave report that current status is normal and radiologist

    gave age as 8 to 10 years. After receiving reports from concerned

    department, witness issued certificate Exhibit 42.

    Only cross of above witness is on the point of giving referral

    paper, not obtaining signature of victim or uncle below the history,

    but she denied that she falsely deposed about history given by the

    victim. She answered that victim is physically examined by Dr.

    Bangar.

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    ANALYSIS AND CONCLUSION

    21. There being charge and conviction for offence under Section

    5(m)(l) punishable under Section 6 of POCSO Act, it is incumbent

    upon the courts as well as prosecution to ascertain whether

    prosecution has succeeded in demonstrating that victim was child, i.e.

    below 18 years of age. Here, there is serious contest on this issue of

    age by appellant as well as respondent State. Resultantly, available

    evidence on this point is put to careful scrutiny.

    22. Victim in the opening lines of her chief has first narrated her

    date of birth as 31.01.2007. According to her, in 2015 she was in 4 th

    standard. As regards to she to be studying in 4 th standard, there is no

    serious challenge in the cross of victim, as even questions are directed

    by asking her that, whether while in 4 th standard she had gone to her

    parent’s place during Diwali vacation. Therefore, such manner of

    cross denotes that there is no serious dispute about victim to be

    studying in 4th standard.

    23. The second witness on the point of age is PW3 Headmistress

    and she has deposed that, victim was studying in their school since 1 st

    standard and being admitted in their school on 19.06.2012. Going by
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    such date of admission in 1st standard and taking into account the

    date of birth given by victim as 31.01.2007, it is clear that while in 1 st

    standard she had almost attained age six years which is an approved

    age for securing admission in 1 st standard. This witness PW3 has

    carried original admission register to the court and after comparison,

    its extract are tendered by her on record. Based on entries marked in

    such original register, she has stated date of birth of victim as

    31.01.2007 which is in tune with the date of birth quoted by victim.

    Merely because PW3 answered in cross that source of date of birth is

    not noted in the admission register, it would not be sufficient to

    disbelieve the prosecution story that victim was minor.

    24. It is tried to be submitted that, in view of judgment of Hon’ble

    Apex Court more particularly in the case of P. Yuvaprakash (supra), it

    was necessary for prosecution to show the exact source of information

    of date of birth reflected in the school register. Argument is also

    advanced that no detailed inquiry is conducted by court and secondly,

    child was not referred before Medical Board for ascertainment of age.

    In the above referred judgment, hierarchy of documents while

    determining age is given, i.e. (i) matriculation or equivalent

    certificate if available, and in absence thereof, (ii) date of birth

    certificate from school (other than play school) first attended and in
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    absence thereof; (iii) birth certificate issued by corporation/municipal

    authority or panchayat and only in absence thereof, it is directed that

    there has to be (iv) medical opinion which is sought from duly

    constituted Medical Board which shall declare the age of

    child/juvenile.

    25. In the light of above discussion, in the considered opinion of

    this Court, firstly, here there is extract of original admission register

    of the first school attended by the victim. Witness PW3 had

    volunteered that school has also maintained record of birth certificate

    issued by Panchayat, though it was not carried in the court.

    Therefore, at least required of document as held in above judgment of

    P. Yuvaprakash about date of birth appearing in the first school

    attended is available from prosecution side. Under such

    circumstances, there was no need for court to conduct further

    detailed inquiry or refer the matter to Medical Board, as is tried to be

    submitted.

    Further, PW3 while facing cross in paragraph 5, after admitting

    that source of date of birth of victim is not mentioned, she

    volunteered that they used to maintain separate record of birth

    certificate issued by Gram Panchayat, and further on being
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    questioned, stated that, that day she had not brought it and thereafter

    she denied that she cannot state whether date of birth of victim is

    correct or not. Thus, this witness has deposed before the court, that

    too in the cross, that school maintained birth certificate even issued

    by Gram Panchayat. Therefore, even requirement as spelt out in the

    judgment of P. Yuvaprakash regarding birth certificate issued by

    Gram Panchayat is available with the school authorities.

    Here, further even medical expert PW4 has testified before the

    court about referring the child to dentist as well as radiologist and she

    has quoted the age reported by them, i.e. 9 to 10 years as per dentist

    and 8 to 10 years as per radiologist.

    Consequently, it is the considered opinion of this Court, there is

    abundant material on the point of age which is worthy of credence.

    Therefore, by all means, prosecution has indeed demonstrated that

    victim was a child within the meaning of Section 2(d) of POCSO Act.

    26. As regards to second ground of FIR to be delayed and vague,

    admittedly here, FIR is by aunt of victim. It has come in the testimony

    of this witness as well as victim that, victim was put up with

    informant aunt and her parents were at Surat. PW2 informant has
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    categorically stated that on 30.11.2015, grandfather of victim took

    her to school, dropped her there and even brought her home after the

    school. PW3 has also in cross flatly denied about she falsely deposing

    that on 30.11.2015 victim was present in the school.

    27. It is tried to be submitted that victim has not given date of

    actual occurrence dated 30.11.2015, but PW2, her aunt has stated

    that when she had asked victim to study, while weeping victim

    narrated the incident with her and further also stated that it had

    happened twice/thrice before Diwali. Immediately on receiving such

    information, PW2 has approached police. Obviously, only on learning

    about the incident from the victim, aunt has set law into motion, that

    too immediately. It needs to be noted that, victim was in 4 th standard

    when the incident took place. The incident had happened in the

    school timing while she was in school. It also needs to be noted that

    when informant asked victim to study, that time her memories about

    the occurrence in school during the day must have revived and she

    had accordingly narrated the incident to her aunt. Therefore, there is

    nothing unusual in failure of victim to not to report the instances

    prior to Diwali or on the said date. Even otherwise, it is fairly settled

    position that, in cases of such nature, delay cannot be given overdue

    importance.

    CriAppeal-1092-2024
    -24-

    28. As regards to submissions that, FIR and testimony of victim to

    be vague, in the considered opinion of this Court, it is not so. Victim

    has categorically deposed about accused calling her in the office while

    she was alone with the slate and pencil and committing the above

    referred acts with her. It is further pertinent to note that testimony of

    victim is recorded in 2024 i.e. when she had completed 12 th standard,

    and therefore it would be unreasonable and absurd to expect her to

    give specific dates of the incidents which had taken place while she

    was in 4th standard. For above reasons, neither evidence of

    prosecutrix can be said to be vague nor it can be said to be delayed

    reporting and to raise doubt about it.

    29. It is also the submission of learned counsel that penetrative

    sexual assault is not proved and on this count, he takes support of

    testimony of medical expert PW4 who stated that there were no

    external injuries on the person of victim. Again, it is to be borne in

    mind that here, there are allegations of rubbing over private part and

    insertion of finger in private part. Therefore, there cannot be any

    injury with such acts. Here, alleged incident is of 30.11.2015 and

    examination is done on 02.12.2025 and therefore, it is possible that

    PW4 may not have noticed anything abnormal. However, this
    CriAppeal-1092-2024
    -25-

    independent witness has also stated about receiving history of

    insertion of finger in private part. Therefore, mere absence of visible

    injuries is no good ground to discard the prosecution story about

    commission of offence of penetrative and aggravated penetrative

    sexual assault. Here, act done by accused falls in the Section 3(b) of

    POCSO Act and being teacher, Section 5(f) as well as Section 5(l)(m)

    get gravitated. Further, law is also settled that, there is no need for

    corroboration to the sole testimony of prosecutrix, more particularly

    when it inspires confidence. It would be profitable to reproduce

    settled legal position as spelt out by the Hon’ble Apex court in the

    case of State of Himachal Pradesh v. Manga Singh (2019) 16 SCC

    759, wherein, in paragraphs 10 and 11 following observations are

    made :

    “10. The conviction can be sustained on the sole testimony of the
    prosecutrix, if it inspires confidence. The conviction can be based
    solely on the solitary evidence of the prosecutrix and no corroboration
    be required unless there are compelling reasons which necessitate the
    courts to insist for corroboration of her statement. Corroboration of
    the testimony of the prosecutrix is not a requirement of law, but a
    guidance of prudence under the given facts and circumstances. Minor
    contractions or small discrepancies should not be a ground for
    throwing the evidence of the prosecutrix.

    11. It is well settled by a catena of decisions of the Supreme Court
    that corroboration is not a sine qua non for conviction in a rape case.
    If the evidence of the victim does not suffer from any basis infirmity
    CriAppeal-1092-2024
    -26-

    and the “probabilities factor” does not render it unworthy of credence.
    As a general rule, there is no reason to insist on corroboration except
    from medical evidence. However, having regard to the circumstances
    of the case, medical evidence may not be available. In such cases,
    solitary testimony of the prosecutrix would be sufficient to base the
    conviction, if it inspires the confidence of the court.”

    Consequently, merely because there are no visible injuries or

    marks or medical report to be negative, itself is no good ground to

    acquit the accused.

    30. The last limb of the argument which remains for consideration

    is on the point of failure to examine the Investigating Officer. Learned

    counsel for the appellant would submit that, appellant/accused has

    been deprived of opportunity to question the Investigating Officer on

    the point of investigation over age of the victim.

    Admittedly, legal position is fairly settled that non-examination

    of Investigating Officer is not always fatal. To this extent, law is dealt

    and decided in numerous judgments, like S. K. Rashid and Others v.

    State of Bihar MANU/BH/0173/1986, Bahadur Naik v. State of Bihar

    MANU/SC/0405/2000, Raj Kishore Jha v. State of Bihar and others

    MANU/SC/0783/2003, Baldev Singh v. State of Haryana

    MANU/SC/1268/2015 and recently in the case of Munna Lal v. State
    CriAppeal-1092-2024
    -27-

    of Uttar Pradesh 2023 LiveLaw (SC) 60. Only and only if it is

    demonstrated that material omissions and contradictions are not got

    proved through Investigating Officer, it can be said to be fatal. But,

    this further depends on facts of each case.

    Here, no omissions or contradictions are brought in the

    evidence of any of the prosecution witnesses. More particularly, here,

    there is plausible reason for non-examination of Investigating Officer,

    as case papers show that at Exhibit 43, APP tendered pursis that

    Investigating Officer R. D. Mantode is no more and his death

    certificate was placed on record. Police Constable Zunjar was reported

    to be suffering from paralysis and as such, unable to appear in the

    court. Likewise, API Wangade did not respond to the WhatsApp

    message. Here, thus, main Investigating Officer who conducted

    investigation was not available on account of his demise and

    therefore, failure on the part of prosecution to examine him cannot be

    termed as fatal when there is other cogent, convincing and reliable

    evidence. Even otherwise, on the point of age, relevant evidence of

    school authority, i.e. Headmistress, is available for appreciation.

    31. To sum up, here, prosecution has indeed substantiated and

    proved that PW1 was victim of rape and sexual assault at the hands of
    CriAppeal-1092-2024
    -28-

    her own teacher who was expected to act as her guardian. He has

    breached the trust reposed on him by the victim by attending his call

    and he has ravished her. Prosecution has indeed proved her to be

    minor and a child below 18 years of age at the time of incident. Her

    testimony cannot be said to be not of sterling quality. Rather, her

    story inspires confidence and even needs no corroboration though it is

    available here in this case.

    32. Visited the citations relied by learned counsel, which are on

    settled legal propositions of which there is no dispute. Perused the

    impugned judgment. The view taken by learned trial court is the

    possible view that could emerge even on re-appreciation. There being

    no error, illegality or perversity in the impugned judgment, the same

    needs to be kept intact. Hence, following order :

    ORDER

    I. The criminal appeal is hereby dismissed.

    II. Fees of the counsel appointed to represent respondent no.2 be
    paid by the High Court Legal Services Sub-Committee, Aurangabad as
    per Rules.

    [ABHAY S. WAGHWASE, J.]
    vre



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