Bombay High Court
Raju Arunrao Salve vs The State Of Maharashtra And Another on 24 April, 2026
2026:BHC-AUG:18103
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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
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.
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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.]
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