Bombay High Court
Shriram S/O. Ukandrao Wasnik vs State Of Mah. Thr. Pso, Ps Hingna, Dist. … on 26 March, 2026
2026:BHC-NAG:4861
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 704 OF 2023
Shriram S/o. Ukandrao Wasnik,
Aged about 40 years, Occu. - Nil,
R/o. C/o. Shri Bhange, Gondkhairi,
Mouza-Metaumri, Tah. Hingna,
Dist. Nagpur
Convict No. C-11252, detained in
Central Prison, Nagpur ... Appellant
.. Versus ..
1) State of Maharashtra, Through
Police Station Officer, Police Station
Hingna, Dist. Nagpur.
2) "XYZ", Alleged Victim in Crime
No. 91/2020 registered with Police
Station Hingna, Dist. Nagpur. ...Respondents
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Shri A.S.Shukla, Advocate for appellant.
Ms. Sneha Dhote, APP for respondent/State.
Ms. Garima Jain, Advocate (Appointed) for Respondent no. 2.
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CORAM : NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT : 04/02/2026
DATE OF PRONOUNCING THE JUDGMENT: 26/03/2026
JUDGMENT
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This is an Appeal under Section 374(2) of the Code
of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) against the
judgment and order dated 01/02/2023, passed by the learned
Additional Sessions Judge, Nagpur in Special (POCSO) Case
No. 305/2020, convicting and sentencing the Appellant as
follows:-
“(1) The accused Shriram S/o Ukandrao Wasnik,
Aged 37 years, R/o. Dhotiwada, Tahsil Katol, At
present C/o Bhange, Gondkhairi, Mouza Metaumri,
Tahsil Hingna, District-Nagpur is hereby convicted
as per section 235(2) of the Cr.P.C. for the offence
punishable under section 376(3) of the I.P.C. and
he is sentenced to suffer R.I. for 20 years and to
pay fine of Rs.5,000/-. In default to pay fine R.1. for
one month.
(2) The accused is further convicted for the offence
punishable under sec. 363, 366, 376(2) (i) (j) and
(n) of the IPC and under sec. 5(1) r/w 6 of the
POCSO Act 2012 but no separate sentence is
awarded to him as per section 42 of the POCSO
Act as he is already awarded sentence under
section 376(3) of the IPC being grater in degree.
3 CRI.APEAL 704-2023.odt
(3) The accused is in custody. The accused is
entitled to get set off for the period already
undergone in jail as per section 428 of the Cr.P.C.
(4) Muddhemal properties be destroyed being
worthless after the appeal period is over.
(5) The amount of Rs.5000/- be paid to the victim
girl towards compensation as per section 357 of the
Cr.P.C. out of the fine amount if paid by the
accused after appeal period is over.
(6) ….
(7) …
(8) …”
2. The prosecution’s case as revealed from the police
report is as under:-
2.1 The victim was studying in the 7 th standard and
residing with her maternal uncle on the given address along with
her mother, as the relations between her parents were not cordial.
Later on, her mother died. Near the house of the victim’s
maternal uncle, there was a house of witness Geetabai. The
victim was on visiting terms with the said Geetabai. The
Appellant used to come to the house of Geetabai. The victim and
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the Appellant got acquainted with each other. The Appellant gave
a mobile phone to the victim and proposed for marriage. The
victim asked him to wait for 2-3 years. They developed
friendship. The victim expressed her desire to meet the
Appellant. One day, they decided to meet at the Temple. On
14/03/2020, the Appellant called the victim at the outskirts of the
village. After the victim came home from work, she informed her
maternal aunt that, she was going to attend the Bhagwat Saptaha
(Religious Discourse). The victim left home and joined the
Appellant. They went to another town where they stayed
together. During the said stay, the Appellant did sexual
intercourse with the victim. Thereafter, they went to another town
and stayed there in one field, where also the Appellant did sexual
intercourse with the victim. As the victim was not found, her
maternal uncle lodged a missing report with the Hingna Police
Station and Crime for kidnapping was registered vide Crime No.
0091/2020 against the unknown person. The Police were able to
trace the Appellant and the victim, and brought them to the
Hingna Police Station. The Police recorded the statement of the
victim. The victim was referred for medical examination. The
offence punishable under Sections 376(1)(2)(i) & (n) of the
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Indian Penal Code, 1860 (for short, ‘I.P.C.’) and the offences
punishable under Sections 4 and 8 of the Protection of Children
from Sexual Offences Act, 2012 (for short, ‘POCSO Act‘) came
to be added in the aforesaid Crime Number. The Appellant came
to be arrested and sent for medical examination. The spot
panchanama was drawn. The clothes of the victim and that of the
Appellant came to be seized. The statement of the witnesses were
recorded. The necessary documents were collected. The Articles
were sent to the Chemical Laboratory. On completion of
investigation, the Appellant came to be charge-sheeted.
2.2 The learned Trial Court framed the Charge against
the Appellant vide Exh.05 for the offences punishable under
Sections 363, 366, 376(2)(i)(j) & (n), 376(3) of IPC and for the
offence punishable under Section 6 of POCSO Act. The
Appellant pleaded not guilty and claimed to be tried. To prove
the charge, the prosecution examined in all thirteen (13)
witnesses and brought on record the relevant documents in the
evidence of the witnesses. After the prosecution filed the
evidence closure pursis, the learned Trial Court recorded the
statement of the Appellant under Section 313(1)(b) of the Cr.P.C.
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The Appellant stated that, he was falsely implicated. On
appreciating the evidence available on record, the learned Trial
Court passed the impugned judgment and order.
3. Heard the learned Advocate for the Appellant, the
learned APP for the State and the learned Advocate for the
Respondent no. 2 – victim. Scrutinized the evidence on record.
3.1 It is submitted by the learned Advocate for the
Appellant that, the prosecution failed to prove that, the victim
was a child below the age of 18 years. The victim’s evidence
shows that, she herself joined the company of the Appellant. The
two (2) witnesses examined by the prosecution did not support
the prosecution. The medical evidence does not support the case
of rape. There was delay in lodging the report with the Police.
The spot of incident was not proved. The victim was not the
witness of sterling quality. The prosecution failed to prove the
charge and the Appellant was entitled to benefit of doubt and
acquittal. In support of his contention, the learned Advocate
relied on the following judgments:-
(i) Prashant Daulat Korwate V/s. State of
Maharashtra {2018 DGLS (Bom.) 1178}
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(ii) Kisan Dashrath Tambile and ors. V/s. State of
Maharashtra and ors. {2021 DGLS (Bom.) 212}
(iii) Dilip Bhaiyyasingh Tekan V/s. State of
Maharashtra {2017 DGLS (Bom.) 2414}
(iv) Raju Sukhdeo Dabhade V/s. State of Maharashtra
and anr. {2018 DGLS (Bom.) 1619}
(v) P. Yuvaprakash V/s. State represented by Inspector
of Police {(2024) 17 SCC 684}
(vi) S. Varadarajan V/s. State of Madras {AIR 1965 SC
942}
3.2 It is submitted by the learned APP for the State that,
the prosecution proved the age of the victim and that the victim
was a child. There is no suggestion in the cross-examination in
respect of the difference in the name. The consent of the victim
was immaterial. The injuries on the victim are proved and not
denied. The omissions are not put to the Investigating Officer.
The Medical Officer has given no reason for the inconclusive
result in the reports of Chemical Analyzer (CA). The charge was
proved. Hence, the Appeal be dismissed.
3.3 It is submitted by the learned counsel for the Respondent
no. 2-victim that, she adopts the submissions made by the learned
APP.
4. In support of their case that, the victim was a child
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as defined under Section 2(d) of the POCSO Act i.e. below the
age of 18 years, the prosecution relies on the evidence of P.W.-8
Kailash Haribhau Urkude, P.W.-9 Prafulla S. Balpande and P.W.-
10 Padmakar Wasudeo Lanhore who were the Headmasters of the
schools where the victim took her education. The scrutiny of
their evidence show that, P.W.-10 Padmakar Lanhore was the
Headmaster of the Zilla Parishad Prathamik Shala, Nildoh where
the victim was first admitted for education. His evidence shows
that, he brought the relevant record with him. He deposed that,
the victim’s date of birth entered in the school record was
21/08/2006. The date of birth of the student is entered in school
admission register on the basis of birth certificate and if it is not
available, then on the basis of an affidavit by the guardian. The
victim’s date of birth was entered in the school record on the
basis of an affidavit given by the victim’s mother. However, it
has come in his cross-examination that, at the time of admission
of the victim in their school, no affidavit of the parents of the
victim was taken by the school authorities. The parents of the
victim also did not submit the birth certificate of the victim. This
being the evidence of the Headmaster where the victim was
admitted for the first time, it is clear that, the date of birth entered
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in the first school attended by the victim was not supported by
any document. There is no evidence to show as to on what basis,
the said date of birth of the victim was entered in the school
record. It is, therefore, not possible to accept the said date of birth
of the victim. The evidence of P.W.-9 Prafulla Balpande and
P.W.-8 Kailash Urkude show that, the victim was subsequently
admitted to their schools. Their evidence show that, the date of
birth was entered in their school record on the basis of the
document of the first school attended. As the date of birth and
age of the victim were challenged by the Appellant, it was
necessary for the prosecution to prove them. In the judgments
relied upon by the learned counsel for the Appellant, the
prosecution failed to prove the date of birth of the victim therein
by adducing the relevant evidence. As the date of birth of the
victim in the case at hand is not based on any document, the date
of birth brought on record by the prosecution is required to be
seen with doubt. True it is, the victim has deposed her date of
birth as the same i.e. 21/08/2006, however, the same is not
admissible being hearsay. The prosecution failed to establish that,
the victim was below the age of 18 years and thus, a child at the
relevant time.
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5. It is the case of prosecution that, the victim was
kidnapped and raped by the Appellant. The victim’s testimony
shows that, she was residing at the house of her maternal uncle.
Geetabai Uikey (P.W.-5) was residing nearby. She used to visit
the house of P.W.-5 Geetabai. The Appellant used to come to the
house of P.W.-5 Geetabai. She got acquainted with the Appellant.
They developed friendship. The Appellant presented a mobile
phone to her and expressed his desire to marry her. She asked
him to wait for some years. She expressed her desire to meet the
Appellant and they met at the temple on the day of
Mahashivratri. On 14/03/2020, the Appellant made a phone call
to her and told that, he had come at the outskirts of village. She
came home from the work at 06.00 p.m., changed her clothes and
informed her material aunt that, she was going to Temple for
Bhagwat Saptaha and left. She met the Appellant and they both
went to Katol where they stayed during the night. The Appellant
did sexual intercourse with her. On the next day, they went to
another town Karanja and from there, went to Pardi. They went
to the house of maternal uncle of the Appellant. There also the
Appellant did sexual intercourse with her. While they were in the
field, the Police came and apprehended them and brought to the
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Police Station. In cross-examination, her evidence that, she
herself expressed her desire to meet the Appellant is reiterated.
She did not inform her maternal uncle that, the Appellant
presented her a mobile phone. She did not tell anybody in
respect of the act done by the Appellant with her.
6. The victim’s evidence that, she and the Appellant
became acquainted with each other is supported by the testimony
of P.W.-5 Geetabai who deposed that, the victim and the
Appellant were introduced to each other at her house. The
evidence of the victim proves beyond doubt that, she eloped with
the Appellant. She stayed with the Appellant at different places
without any complaint. Nowhere, the victim deposed that, the
sexual intercourse was done without her consent or wish. She left
her home clandestinely to accompany the Appellant. It is clear
from the evidence of the victim that, she was the consenting
party. She willingly joined the company of the Appellant. The
essential ingredients for the offence under which the Appellant is
charged, are conspicuously absent from her testimony. The
victim’s evidence, therefore, is of no help to the prosecution to
prove the charge.
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7. There is medical evidence of P.W.-3 Dr. Megha D.
Davile who examined the victim on 20/03/2020. The history
noted by her corroborates the testimony of the victim that, she
willingly accompanied the Appellant and there was sexual
contact between them. No fresh injury was noticed on the victim.
The Hymen was old torn. The medical evidence is of no
assistance in proving the charge. The other evidence is that of
P.W.-1 Informant who was the maternal uncle of the victim who
lodged the missing report, the panch witnesses, the land owner
where the Appellant went with the victim and the Police Officers.
The CA report at Exh. 30 is inconclusive. There is no need to
burden this judgment by discussing the judgments relied on by
the learned Advocate for the Appellant. The evidence on record
do not prove the charge against the Appellant. With the evidence
discussed above, it is not possible to maintain the conviction and
sentence recorded by the learned Trial Court and the Appellant is
entitled for acquittal. The Appeal, therefore, succeeds. Hence, the
following order:-
ORDER
I) The Criminal Appeal is allowed.
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II) The conviction and sentence recorded by the learned
Additional Sessions Judge, Nagpur against the Appellant in
Special (POCSO) Case No. 305/2020, by the impugned judgment
and order dated 01/02/2023, is hereby quashed and set aside.
III) The Appellant is acquitted for the offences punishable
under Sections 376(3), 363, 366, 376(2)(i)(j) & (n) of IPC and
for the offence punishable under Section 6 of POCSO Act.
IV) The Appellant is behind the bars. He be set at liberty, if not
required in any other offence.
V) Record and Proceedings be sent back to the learned Trial
Court.
VI) For this Appeal, the fees of the learned Advocate appointed
to represent the Appellant is quantified at Rs. 10,000/- [Rupees
Ten Thousand Only], which shall be paid by the High Court
Legal Services Sub-Committee, Nagpur.
VII) For this Appeal, the fees of the learned Advocate appointed
to represent the victim is quantified at Rs. 5,000/- [Rupees Five
Thousand Only], which shall be paid by the High Court Legal
Services Sub-Committee, Nagpur.
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(VIII) The Criminal Appeal stands disposed of accordingly.
[NEERAJ P. DHOTE, J.]
B.T.K.
Signed by: Mr. B.T. Khapekar
Designation: PA To Honourable Judge
Date: 26/03/2026 18:26:58