Bombay High Court
Balwant Natthu Nikam (Patil) vs The State Of Maharashtra on 20 April, 2026
2026:BHC-AUG:16833
{1} CR APPEAL 723 OF 2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 723 OF 2025
. Balwant Natthu Nikam (Patil)
Age: 56 years, Occu.: Waiter,
Resident of 52, Krushi Colony,
Deopur, Tal. & Dist.Dhule. ....Appellant
(Orig. Accused)
Versus
1. The State of Maharashtra
Through the Police Station,
Investigating Officer, Deopur Police Station,
Tal. & Dist. Dhule.
2. XYZ (victim) .....Respondents
.....
Advocate for Appellant : Mr.Shivaji Bhimrao Bhapkar a/w.
Mr.Vinod Patil with Mr.B.R.Rathod
APP for Respondent no.1 : Mr.N.S.Tekale
Advocate for Respondent no.2 : Mr Jayshree Yogesh Sonawane
(Appointed)
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 16 APRIL , 2026
PRONOUNCED ON : 20 APRIL, 2026
JUDGMENT :
1. In this appeal, there is challenge to judgment and order dated
25-08-2025 passed by learned Special Judge (POCSO) and
Additional Sessions Judge, Dhule, in Special Case No.45 of 2022,
thereby convicting appellant for offence under Section 376(3) of the
{2} CR APPEAL 723 OF 2025
Indian Penal Code (IPC) and under Sections 4 and 6 of the Protection
of Children from Sexual Offences Act (POCSO Act).
BRIEF FACTS OF THE CASE
2. In brief, prosecution case in trial Court was that, informant’s
granddaughter PW3, aged 6 years, was playing on the terrace of her
own house. Accused, a tenant, called the child on the pretext of
offering snacks and it is alleged that after making her sleep on the
bed, he disrobed her, removed his own clothes, slept over her and
twice inserted his male organ in the private part of the victim. Victim
returned home and complained of irritation to the private part and
also narrated the episode of sexual assault to her grandmother, who
approached Police and set law into motion, on the basis of which
after registration of crime, investigation was carried out by PW9 and
finally, accused came to be chargesheeted and tried by learned
Special Judge (POCSO) and Additional Sessions Judge, Dhule, who
on appreciation of evidence, accepted the case of prosecution and
returned the guilt for above offence. There is challenge to the said
judgment and order of conviction by way of instant appeal.
SUBMISSIONS
On behalf of appellant :
3. Mr.Bhapkar, learned counsel for appellant took this Court
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through the entire evidence adduced by prosecution in trial court and
he would submit that, case of prosecution cannot be said to be
proved beyond reasonable doubt. Though, he at the outset stated
that there is no serious challenge to the age of victim, he takes strong
exception to the prosecution evidence and its manner of
appreciation.
4. His first criticism is on the manner of investigation. He would
point out that though crime was said to be cognizable and serious
one, and inspite of occurrence taking place in the afternoon, crime is
surprisingly shown to be recorded at 22:09 hours, more particularly,
when Police Station was in the same area where incident has
allegedly taken place. According to him, delayed FIR creates doubt
about veracity of prosecution case. At this point, he submitted that,
FIR is at the instance of grandmother, who has mere hearsay
information allegedly narrated by victim. He took this Court through
cross-examination of informant and would point out to specific
defence taken by accused, though denied by the victim, regarding
house of informant being mortgaged to accused and no payment
being made to the accused nor his house being vacated and as such,
it is his submission that in such backdrop, there is every possibility of
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false implication to avoid return of money as well as house.
5. It is his next submission that, here, inspite of statements of
several witnesses recorded by Investigating Officer, only chosen few
i.e. only relatives like grandmother, mother are examined. Father has
not been examined, who allegedly accompanied the victim to Police
Station as well as for medical examination.
6. His second attack on the prosecution case is on the point of no
timing reflected in the FIR or seizure panchanamas of clothes of
accused as well as victim and he even pointed to the answers given
by panchas as well as Investigating Officer in that regard. According
to him, surprisingly investigation seems to have commenced even
prior to registration of the FIR and therefore, it is his allegation that
possibility of false implication cannot be ruled out by creating the
evidence which suits prosecution.
7. Fiercely criticizing the testimony of victim, he would submit
that, from entire tenor of examination-in-chief as well as cross-
examination of victim, it is abundantly clear that child was tutored.
He pointed out that, on the day of examination-in-chief conducted
{5} CR APPEAL 723 OF 2025
i.e. on 12-06-2024, victim has not at all supported prosecution and
he took this Court through questions posed by prosecution and
answers given by victim from question no.33 onwards and he would
submit that repeatedly attempt is made to compel the victim witness
to answer in the manner desired by the prosecution even when victim
was categorically stating that nothing had happened with her. He
criticized such approach of prosecution and would submit that two
days after 12-06-2024 i.e. on 14-06-2024, when victim was examined
further, this time she had supported prosecution and it is his specific
accusation that the two days gap has been utilized to tutor the child,
who has also admitted that she was tutored by her mother. For such
reasons, it is his submission that, testimony of very prosecutrix comes
under shadow of doubt and it is his submission that though it is
settled law that there is no need for independent corroboration to the
testimony of prosecutrix, according to him, case in hand warrants
sufficient corroboration as the child was demonstrated to be tutored
to depose.
8. Questioning the credibility of scientific evidence, he submitted
that, medical reports and DNA reports negate prosecution allegation.
He pointed out that, sole piece of evidence is a hair found on the
{6} CR APPEAL 723 OF 2025
cloth of victim, but according to him, there are several reasons for
hair to be there and more particularly, when seizure panchanama is
not timed, he expresses possibility of planting and further he would
submit that even otherwise, it is a weak type of evidence. According
to him, medical evidence also does not wholeheartedly support
prosecution story as there are no injuries on the person of victim or
accused. Thus, according to him, there is no corroboration to the
testimony of victim.
9. Lastly, he would submit that only near and dear ones of victim
are examined. That, there is no explanation for not examining
independent witnesses like neighbours and therefore, he urges for
drawing adverse inference. While criticizing the judgment, he would
submit that, it was based on assumptions, presumptions and surmises
and against tenor of prosecution evidence. Consequently, he submits
that such judgment cannot be allowed to be sustained.
On behalf of Respondent no.1/State :
10. In answer to above, learned APP, while canvassing in favour of
impugned judgment and supporting it, would submit that though
there are nine witnesses examined by prosecution, according to him,
{7} CR APPEAL 723 OF 2025
relevant witnesses are victim, followed that of her grandmother,
mother and medical examiner. He also relied on the DNA analysis,
which according to him is confirming the occurrence.
11. While answering the criticism of learned counsel for
appellant/accused about child to be tutored, he would submit that, it
is not so and rather according to him, though on the first day of
examination-in-chief, the child did not open up and freely answered,
it is his submission that, her mental state should also be taken into
account. According to him, on 14-06-2024, the child narrated the
entire episode suffered by her. He would submit that, immediately
after prompt FIR, statement of victim is also recorded under Section
164 of the Cr.P.C. and therefore, even if at some point of time while
giving evidence in the Court, the child did not clearly narrate the
incidence, there is corroboration to her testimony from medical
evidence, which is independent and free from all biases. According
to him, both mother and grandmother have also deposed what they
have heard from victim herself and as such according to him, there is
no reason to disbelieve them. According to him, answers given by
victim, more particularly to question nos.74, 81, 83 and 84, pins
down the accused to be the perpetrator of the crime. He pointed out
{8} CR APPEAL 723 OF 2025
that, scientific evidence also confirms the prosecution story and
therefore, he justifies trial Court employing Section 29 of the POCSO
Act to draw presumption, which according to him, accused failed to
rebut.
On behalf of Respondent No.2/victim :
12. Learned counsel for victim also supported the verdict of trial
Court and prays to dismiss the appeal for want of merits.
13. After hearing the above submissions, the fundamental grounds
raised in appeal could be summarized as firstly FIR to be untimed,
secondly investigation commenced even prior to registration of FIR,
thirdly child witness to be tutored and fourthly no corroboration to
the testimony of prosecutrix.
BRIEF ACCOUNT OF EVIDENCE ADDUCED IN TRIAL COURT
14. PW1 Informant/grandmother of victim deposed that they
resided on ground floor whereas accused, their tenant, resided on
first floor since 17 years. She deposed that, on 19-02-2022 at around
10:00 a.m. her granddaughter, aged 6 years, went to play on terrace
as usual. That time, accused, who was alone in the house as his wife
{9} CR APPEAL 723 OF 2025
was gone for work, called her granddaughter in his house on the
pretext of giving snacks, made her sleep on the bed, removed her
clothes as well as his own, slept over the person of victim, he inserted
his private part twice in the private part of victim and committed
rape, which victim narrated to her. That, at around 1:30 p.m. even
wife of accused came and her granddaughter narrated the incident to
her also and they went to Police Station to lodge FIR. She identified
the FIR as well as accused.
While under cross-examination, she is asked about the
situation of the house, number of rooms, its locations, and then she is
questioned about house being mortgaged to the accused for
Rs.50,000/- to which she admitted and also admitted about not
repaying the loan amount to the tune of Rs.6,00,000/- to
Rs.7,00,000/- till date. She denied lodging false FIR to avoid return
of money.
15. PW2 Rajendra Patil is pancha to seizure of clothes, who
deposed about panchanama exh.32 pertaining to clothes of accused,
exh.33 pertaining to clothes of victim and exh.34 spot panchanama
to be drawn in his presence. He also identified the articles seized
and shown to him in the Court.
{10} CR APPEAL 723 OF 2025
While under cross-examination, he admitted that he did not
take entry in the office register while leaving. He answered that on
19-02-2022 he left the office at around 10:00 – 10:30 a.m. and he is
unable to state who all were present in the Police Station, but stated
that accused was sitting in another room of Police Station and he also
answered that he remembers the description of the clothes of accused
as well as victim. He admitted about not enquiring about owner of
the spot. He answered that there were no written orders by his
superior to go and act as pancha.
16. PW3 is victim and she is examined at exh.36. Her
examination-in-chief is in question-answer form. Upto question
no.56 is the examination-in-chief and thereafter upto question no.85
is the cross-examination. Relevant questions and answers would be
dealt at appropriate place.
17. PW4 is mother of victim and she deposed that accused resided
in the upper floor of their house. According to her, incident took
place in February at approximately 11:00 a.m. when her victim
daughter had been to play on terrace and had come down for
urination but could not pass it and complained of pain to her private
{11} CR APPEAL 723 OF 2025
part. She deposed that, at that time, only her mother-in-law was in
the house and by that time, tenant of upper floor Sarla Patil and
Mangla had returned from the work. When her husband made
enquiry, she claims that victim told that when she had gone to play
on the upper floor, Baba removed her pant, removed his pant too,
slept on her person, and touched his private part on her private part
and asked her whether she is feeling smooth or not and she further
told that he committed sexual intercourse with her and further said
that they will do it again after some time. She clarified Baba to be
accused.
While under cross-examination she admitted about good
relations with tenant. She is unable to state when victim left house
and returned home. She admitted that her daughter was making
complain of irritation to private part. That her mother-in-law
informed to Police, who had come. She denied that since previously
her daughter complaining of irritation to private part. She is unable
to give time when her victim daughter informed her grandmother.
Rest is all denial.
18. PW5 Maruti Somnath Ghuge is the Chemical Analyzer, who
deposed at exh.40 about receiving communication from Police for
{12} CR APPEAL 723 OF 2025
supply of DNA kit and accordingly, providing it and again on
23-02-2022 receiving muddemal with letter and about receiving
blood samples of victim, that of accused, a small hair found on her
cloth and its analysis being done. He deposed that, on complete
analysis, he found DNA profile obtained from exh.2 i.e. hair is of
male origin and it matched with DNA profile obtained from exh.1 i.e.
blood sample of accused.
While under cross-examination, he answered that samples can
be preserved for a year if properly preserved and admitted about not
making remark to that extent in the report. However, he volunteered
that samples were received by Laboratory and its analysis was done.
To a question as to which chemicals are used for preserving, he
answered that DNA kit already contains E.D.T.A. preservative
chemical. He admitted that samples were received on 23-02-2022
and analysis commenced on 19-08-2022 and he assigned reason that
he had to complete DNA profile in another cases. He volunteered
that DNA kits were preserved in freezer. He admitted not taking
special education in Human DNA Inspection and Analysis. To a
question whether there was acknowledgment of receipt of three DNA
kits, he gave detailed answer that register is maintained carrying
details of crime, name of the Police Station, who demanded kit and
{13} CR APPEAL 723 OF 2025
to whom handed over. He answered that he did not carry register.
He answered that approximately 10-20 hairs of victim were found.
To a question whether kit, if removed from refrigerator, comes in
contact with sunlight, gets spoiled, he denied. Rest is all denial
except admission that hair of a person can be found on the person of
another if they live together in the same house.
PW6 Mahendra and PW8 Rakhi are the carriers.
19. PW7 Dr.Nagsen is the Medical Officer, who deposed about
Deopur Police forwarding victim for examination with requisition
letter, victim’s grandmother narrating the history, and on
examination, not noticing external injuries, but on local examination
of genitals, the same were found with inflamed labia majora and
fresh abrasion on left side labia minora admeasuring 0.5 cm, hymen
to be intact. He deposed about issuing report exh.59.
While under cross-examination, medical expert admitted that
there can be inflammation due to bacterial infection in labia majora
and that he did not find any marks of assault on the person of victim.
He denied issuing false report and to a question whether in case of
bacterial infection, patient has fever, he answered in affirmative, but
to a further question whether victim had fever, he denied by
{14} CR APPEAL 723 OF 2025
answering it in negative.
PW9 Sachin Namdeo Bendre is the Investigation Officer, who
narrated all the steps taken by him during investigation till filing of
chargesheet.
ANALYSIS
20. Re-appreciated the evidence, more particularly in the backdrop
of grounds raised in appeal reproduced above.
FIRST AND SECOND GROUNDS :
21. The fundamental and foremost grounds raised in this appeal
are that FIR does not carry time and that in the light of deposition of
pancha to seizure, even prior to FIR, investigation had commenced.
In the light of above submission, record is put to scrutiny and it
is noticed that, FIR at the behest of PW1 informant is of 19-02-2022,
but as pointed out, admittedly there is no timing of recording of
crime. However, occurrence of morning 10:00 a.m. is finally learnt
by informant grandmother in the afternoon and thereafter, she had
approached Police Station but on the same day. On mere failure on
the part of Police Station Officer (PSO) to note the timing on a typed
{15} CR APPEAL 723 OF 2025
report, no advantage could be derived by defence unless what
prejudice has been caused by such lacuna to his case is
demonstrated by the accused.
Law is fairly settled that mere commencement of investigation
prior to formal registration of FIR is always not fatal to prosecution.
On this point, this Court takes support of judgment of the Hon’ble
Apex Court dated 25-11-2016 passed in Criminal Appeal No.298 of
2006 (Anjan Dasgupta v. The State of West Bengal and Others). In
paragraph 16 of the judgment, the Hon’ble Apex Court has observed
that “….The receipt and the recording of First Information Report is
not a condition precedent for setting in motion of a criminal
investigation.” Such proposition by the Hon’ble Apex Court is on the
strength of its earlier judgment in the case of of Apren Joseph Alias
Current Kunjukunju and Others v. The State of Kerala, 1973 (3) SCC
114, wherein paragraph 11 reads as under ” As observed by the Privy
Council in K.E. v. Khwaja, the receipt and recording of information
report by the Police is not a condition precedent to the setting in
motion of criminal investigation.”
In series of judgments, time and again, the Hon’ble Apex Court
has reiterated and echoed the views that defective investigation is not
automatically fatal to the prosecution and that, flaws or defects in the
{16} CR APPEAL 723 OF 2025
investigation on the point of timing does not vitiate the entire
prosecution which is otherwise shown to be credible and reliable.
Unless accused demonstrates what prejudice has been caused
to him on account of failure of PSO to specifically note the timing of
FIR, he cannot be allowed to derive the benefit.
Consequently, though, here, there is no timing on the report
lodged by PW1 informant, complaint is lodged on the same day and
FIR is recorded in the night itself. Considering the gravity of
allegations, delay if any in such cases even otherwise is not of much
significance. Here, there is no allegation by appellant that FIR is ante
timed. Therefore, both above grounds have no force.
THIRD AND FOURTH GROUNDS :
22. In the light of allegation that victim was tutored and she
having admitted to that extent, it needs to be seen whether indeed it
is so and whether testimony of prosecutrix is worthy of credence and
reliable. Consequently, her testimony before trial Court is visited
and appreciated.
On carefully going through her examination-in-chief, it is
noticed that the same is undertaken by posing questions initially by
learned APP and cross-examination is by posing questions by
{17} CR APPEAL 723 OF 2025
defence. Victim PW3 is initially questioned about her details so as to
allow her to get acquainted with the trial process. Learned trial
Court itself seems to have posed general questions to victim i.e. upto
question no.27 and got itself satisfied that the victim understands the
questions and in position to give rational answers. Thereafter,
learned Public Prosecutor is permitted to conduct examination-in-
chief and she answered that their house has two floors, they live on
ground floor, upper floor to be rented to accused. She answered that
she used to play on the ground as well as on terrace. She answered
that incident happened in the afternoon. To the question who was
present at that time, she named accused as well as his wife and to the
next question she answered that wife was washing utensils. Then
she answered that she was taken to the hospital and when asked for
what reason, she answered that she was having irritation to private
part and to the question about reason for irritation, she answered it
to be general. She denied anybody doing anything with her, she
falling down and flatly denied that accused did anything with her. To
the question whether she told anything about what accused had
done, she answered that she does not know. To question no.49
whether she remembers anything about incident, she answered in
negative. Thereafter, recording of evidence for the day seems to have
{18} CR APPEAL 723 OF 2025
ended and trial Court has noted “further examination-in-chief is
adjourned as the child witness is not feeling comfortable”
Her examination-in-chief to above extent was concluded on
12-06-2024 and it was resumed on 14-06-2024 and to question no.50
which was starting point of examination-in-chief that day, when she
was asked what did accused do with her, she answered that he called
her for giving sweet, gagged her mouth with cloth and to further
question, she answered that he removed her clothes, slept on her
person, touched his private part on her private part, therefore, she
had irritation to private part. To a question as to whom she told the
incident, the child answered that to mother and to Police.
Thereafter, further questions are posed by defence in cross-
examination commencing from question no.57 and to such questions,
she has answered and admitted that informant is father’s mother, she
admitted that she listens and obeys her grandmother. To question
no.70 in cross-examination as to whether her grandmother tutored
her about incident, she answered that mother tutored her. Similarly
to question no.74 whether grandmother tutored her about the
incident, she denied, but she admitted that she stated before Police as
tutored by her mother and grandmother. To specific question no.81
that she was deposing false that Baba called her for giving sweets,
{19} CR APPEAL 723 OF 2025gagged her mouth with cloth, removed her clothes, and slept over
her and touched his private part to her private part, she flatly
answered in negative and also identified accused.
23. True it is that on 12-06-2024 when victim was examined, while
answering question no.37, she has answered that, accused was
present with his wife and though wife is not examined, no adverse
inference can be drawn. At times she does seem to have answered
that she is unable to remember and has also at one point to a
question as to did anything happen, she answered in negative. In
similar manner, she also answered to question nos.46 and 49.
However, it is pertinent to note at this juncture that, learned
trial Court has noted what is observed by it and remarked that,
“further examination-in-chief adjourned as child witness is not
feeling comfortable”. Therefore, such remark and noting shows that
trial Court was on guard and was taking note of the demeanor of the
witness and finding child witness in discomfort, further examination-
in-chief was deferred and it was admittedly resumed after two days
i.e. on 14-06-2022 and on this day, she answered that, accused called
her for giving sweet, gagged her mouth, removed her clothes, slept
on her person, touched his private part on her private part.
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Therefore, her such deposition, though after two days, is consistent
and in tune with the contents of FIR. Moreover, as pointed out by
learned APP, it is also in tune with statement under Section 164 of
the Cr.P.C.
24. It needs to be noted that a child of six years had faced the
proceedings of trial Court though in camera, at such tender age, the
child may have hesitated to give answers to direct questions posed to
her about the incident. Further, merely to a specific question
whether accused did anything with her that day, she has answered in
negative, but immediately thereafter, trial Court noted the child to be
uncomfortable and has paused the process of examination-in-chief.
Such circumstances also need consideration. Though after two days,
the child has narrated the acts of accused in the similar manner in
which her grandmother and her mother have deposed. Even her
statement under Section 164 of the Cr.P.C. is on similar lines.
Resultantly, part of examination-in-chief cannot be selectively chosen
to declare the witness to be tutored.
At this juncture, it would be profitable to take reference to and
rely on the judgment of Hon’ble Apex Court in the case of State of
M.P. v. Ramesh, (2011) 4 SCC 786 and the relevant observations in
{21} CR APPEAL 723 OF 2025
para 13 are as under “Part of the statement of the child witness,
even if tutored can be relied upon, if the tutored part can be
separated from the untutored part, in case of such remaining
untutored part inspires confidence. In such eventuality, the tutored
part can be believed or atleast taken into consideration for the
purpose of corroboration as in the case of hostile witness “.
Consequently, in the light of above judicial precedent, here, even if
victim’s testimony is shown to be tutored, it can still be relied upon if
the same is found to be believable after separating the tutored part
from the untutored part.
Further, recently the Hon’ble Apex Court in the case of State of
Rajasthan v. Chatra, (2025) 8 SCC 613, has held that “child victim
deposing nothing about offence, but merely shedding silent tears
during an examination, and remaining silent, would not accrue to
the benefits to the accused”.
In above referred case, the Hon’ble Apex Court has dealt with
principles to be borne in mind while appreciating evidence of child
victim i.e. on the basis of judicial precedent laid down in the case of
Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5 SCC 341;
Hari Om v. State of U.P., (2021) 4 SCC 345; State of Himachal
Pradesh v. Sanjay Kumar, (2017) 2 SCC 51; Pradeep v. State of
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Haryana, (2023) 19 SCC 221 and deduced the following principles.
“23.1 No hard and fast rule can be laid down qua testing
the competency of child witness to testify at trial.23.2 Whether or not given child witness will testify is a
matter of trial Judge being satisfied as to the ability and
competence of the said witness. To determine the same,
the Judge is to look to the manner of the witness,
intelligence or lack of, as may be apparent; and
understanding of distinction between truth and falsehood
etc.23.3 Non-administration of oath to child witness will not
render their testimony doubtful or unusable.
23.4 Trial Judge must be alive to the possibility of child
witness being swayed, influenced or tutored or being their
innocence, such matters are of ease for those who may
wish to influence the outcome of the trial in one direction
or another.
23.5 Seeking corroboration therefore of the testimony of
child witness is well placed practical wisdom.23.6 There is no bar on cross-examination of child witness.
If the witness withstood the cross-examination, prosecution
would be entirely within its rights to seek conviction even
solely relying thereon.”
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25. Bearing above principles in mind, here, initial examination-in-
chief and answers given by victim on 12-06-2024 are apparently
when the witness was not comfortable with the Court proceedings
and therefore, recording of evidence was suspended and resumed
after two days i.e. on 14-06-2024 and this time, victim reproduced
the events occurred with her. Her such testimony cannot get
redumberated.
26. Even otherwise, here, even if it is considered that child has
shown to be tutored and she admitted to that extent, in the
considered opinion of this Court, there is corroboration from medical
evidence because medical expert PW7 Dr.Nagsen, has noted
inflammation to labia majora with fresh abrasion on left side labia
minora. That examination is done on the day of occurrence itself.
Though medical witness attributed inflammation also to bacterial
infection, defence itself has by further questioning the expert brought
on record that victim had no fever and therefore, there is
confirmation that the inflammation and abrasion was result of acts of
accused and nothing else. Resultantly, here, there is corroboration to
the testimony of victim from medical expert, which appellant was
insisting for.
{24} CR APPEAL 723 OF 2025
27. Further investigating machinery collected DNA samples of both
accused and victim and on analysis by PW5 Maruti Somnath Ghuge,
reports are brought on record. This expert has categorically stated
that, on completion of analysis, he found DNA profile obtained from
exh.2 i.e. hair to be of male origin and it to be matching with DNA
profile of obtained from exh.1 which is blood sample of accused.
Hair of accused was found on the clothes of victim, which must have
got stuck due to his physical contact with victim while he slept over
her. Only on close physical contact, there could be transfer of hair of
accused on her clothes. Such scientific and forensic evidence also
puts the final nail and confirms the acts of accused. Resultantly, in
the light of above discussion, prosecution has discharged its burden
of proving sexual assault on victim by accused.
28. Though, as submitted, there are no independent witnesses, in
cases of such nature, it is obvious that there would be testimony of
victim and her family members only and therefore, as tried to be
submitted by appellant, no adverse inference need to be drawn for
non-examination of independent witnesses like neighbours, friend of
victim or wife of accused, more particularly, when there is sufficient
{25} CR APPEAL 723 OF 2025evidence on behalf of prosecution. It is the quality of evidence that
matters and not the quantity, is settled position. It is total
prerogative of prosecution to chose the witnesses they intend to
examine. Material evidence of victim, her mother, grandmother and
Doctor is sufficient to decide the fate of prosecution case.
29. Perused the judgment under challenge. It is pertinent to note
that, it is the very Court, which has recorded the evidence, had
occasion to even deal with the trial and decide the case and
therefore, there is double reinforcement to the quality of output. As
no patent perversity or illegality is brought to the notice of this Court,
this Court refrains from interference. Accordingly, following order is
passed :
ORDER
(I) Criminal Appeal is dismissed.
(II) Fees of the learned counsel appointed for respondent
no.2 is to be paid through the High Court Legal
Services Sub-Committee, Aurangabad, as per Rules.
( ABHAY S. WAGHWASE )
JUDGE
SPT
