Suresh S/O Govindrao Muneshwar vs State Of Mah. Thr. Pso Ps Sewagram … on 23 February, 2026

Bombay High Court

Suresh S/O Govindrao Muneshwar vs State Of Mah. Thr. Pso Ps Sewagram … on 23 February, 2026

Author: Anil L. Pansare

Bench: Anil L. Pansare

2026:BHC-NAG:3294-DB

                                             -1-                   APPEAL.461.2020.odt



                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH : NAGPUR.

                           CRIMINAL APPEAL NO. 461 OF 2020

                APPELLANT                :     Suresh S/o. Govindrao Muneshwar,
                                               Aged about 63 Years, Occ: Labour,
                                               R/o. Ward No.4, Barbadi, Tahsil and
                                               District Wardha.

                                                     //VERSUS//

                RESPONDENT               :     The State of Maharashtra, through its
                                               Police Station Officer, Police Station
                                               Sewagram, District : Wardha.


                __________________________________________________________
                  Mr. Anil Mardikar, Senior Advocate a/b. Mr. S.A. Kanetkar, Advocate
                  for the Appellant.
                  Mr. S.S. Doifode, APP for the Respondent/State.
                __________________________________________________________
                                CORAM : ANIL L. PANSARE AND
                                        RAJ D. WAKODE, JJ.
                                RESERVED ON :     26th NOVEMBER, 2025.
                                PRONOUNCED ON : 23rd FEBRUARY, 2026.



                JUDGMENT (PER : RAJ D. WAKODE, J.)

Heard Mr. Anil Mardikar, learned Senior Counsel assisted by

Mr. S.A. Kanetkar, learned counsel for the appellant, and Mr. S.S.

Doifode, learned APP for the respondent/State.

02. The present appellant has approached this Court seeking

challenge to the impugned judgment and order dated 23 rd October,

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2020, passed by the learned District Judge-2 and Special Judge

(POCSO Act), Wardha, in Special (POCSO) Case No. 40 of 2016,

whereby the learned Special Judge convicted the present appellant for

the offences punishable under Section 376(2)(f)(i) of the Indian Penal

Code, 1860, and Sections 5(i), 5(m), and 5(p), punishable under

Section 6 of the Protection of Children from Sexual Offences Act, 2012

and sentenced him to suffer imprisonment for life, meaning

imprisonment for the remainder of his natural life, for the offence

punishable under Section 376(2)(f)(i) of the IPC and under Section 6

of the POCSO Act. He has also been directed to pay a fine of

Rs.2,00,000/- (Rupees Two Lakhs only), which shall be payable to the

victim.

03. The prosecution case leading to the conviction of the present

appellant is as follows:

PW-2 Dinesh Sudhakar Fulzele, the complainant, is the

maternal uncle of the victim. The victim was residing with her maternal

grandmother and maternal uncles at Mouza Barbadi, Tahsil and District

Wardha. On 11th October, 2015, at about 5:00 p.m., the complainant

was at home, while the victim was playing with her friends near the

house. The complainant took some money from his mother and went

out. Upon his return, the victim also came home and went to his

mother. It was noticed that the victim’s frock was soaked with blood.

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04. The complainant’s mother removed the victim’s clothes,

including her panties, in his presence and saw that the victim’s vagina

was bleeding profusely. When questioned by the complainant’s mother,

the victim stated that she had gone to Bittu’s house to play and that

Bittu’s father had inserted something into her vagina, causing pain and

bleeding. When the complainant questioned her again, she reiterated

the same thing. The victim’s frock and panties were found soaked in

blood.

05. Thereafter, the complainant and his elder brother admitted

the victim to Sewagram Hospital. Upon examination, the doctor

informed them that the victim had been sexually assaulted.

Consequently, the complainant approached the respondent police

station and lodged a complaint on 11 th October, 2015, which is at

Exhibit 22. On the basis of the said complaint, FIR No.345/2015 was

registered against the present appellant on the same day, which is at

Exhibit 23.

06. Pursuant to the registration of the FIR, the respondent

conducted the investigation and, upon completion thereof, filed the

charge-sheet. The learned Trial Court framed the charge against the

appellant vide Exhibit 4. The appellant pleaded not guilty and claimed

to be tried.

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07. In order to bring home the guilt of the appellant, the

prosecution examined total of 14 witnesses and relied upon various

documentary evidence. After the prosecution evidence was concluded,

the appellant examined one defence witness, namely ASI Kishor G.

Kohad, in support of his case.

08. Upon consideration of the charge framed against the

appellant, the evidence led by the prosecution, the defence taken by the

appellant, and after hearing the arguments of the learned counsel for the

parties, the learned Trial Court convicted the present appellant for the

aforesaid offences by its impugned judgment dated 23 rd October, 2020.

Being aggrieved by the said conviction and sentence, the appellant has

preferred the present appeal before this Court.

09. We have gone through the evidence, documents, and the

impugned judgment. We will refer the same to the extent if necessary to

decide the following points that arise for our consideration. We have

recorded our findings thereon for the reasons to follow:

Sr. No.                 Points                             Findings
  (i)     Whether prosecution proves that on                 Yes.
          11th October, 2015 at the house of
          the accused at Mouza Barbadi,
          accused inserted his finger in the
          vagina of the six-year old victim
          (who    was     residing  in    his
          neighborhood)     and committed
                                -5-                    APPEAL.461.2020.odt



          penetrative sexual assault and
          thereby committed an offence under
          Section 5(i)(m)&(p) punishable by
          Section 6 of the POCSO Act and
          Section 376(2)(f)(i) of the IPC?
  (ii)    Whether interference is called for in              No
          the impugned judgment?
  (iii)   What order?                             Appeal is dismissed.

                               REASONS


As to point Nos.(i) to (iii)

10. A perusal of the paper-book and the original record of the

learned Trial Court reveals that the age of the victim at the time of the

incidence, i.e., on 11th October, 2015, was 5 years and 11 months. The

prosecution proved the birth certificate of the victim at Exhibit 24. The

date of birth recorded therein is 27 th November, 2009, and the date of

the incidence is 11th October, 2015. Thus, the victim had not even

completed six years of age at the time of the incidence.

11. The said birth certificate and the date of birth mentioned

therein were not disputed by the present appellant during the

cross-examination of any of the prosecution witnesses and, therefore,

the same stands proved.

12. The victim, in her statement dated 12 th October, 2015, as

well as in her supplementary statement dated 25 th December, 2015,

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specifically narrated the incidence and the crime committed by the

present appellant. The evidence of the victim is at Exhibit 27 (record

page No.42). A perusal of the said evidence reveals that the victim had

specifically attributed the overt act to the present appellant, which reads

thus:

“Bittu used to stay near our house. I used to go to his house to
play. One day when I had gone to Bittu’s house to play, I was
playing on the swing. At that time Bittu’s father inserted his
finger in my organ of urination ‘सू’ची जागा’. I had lot of pain. I
came home and narrated the incident to my grand-mother that
Bittu’s father inserted his finger in my organ of urination ‘ सू’ची
जागा’. Thereafter, she removed my clothes. There was blood on
my clothes. My grand- mother removed my clothes and saw.
Dinesh mama was at home at that time. They took me to the
hospital at Sewagram.

13. A perusal of the further examination-in-chief of the victim

reveals that she identified the appellant before the learned Trial Court.

She specifically deposed on oath that she was scared of him and did not

want to go near him.

14. The learned Trial Court has recorded the demeanor of the

victim as regards the present appellant, which reads thus:

“Witness has cringed at the sight of the accused. She also became
afraid and stated 2 to 3 times that she does not want to go near
him.”

15. The aforesaid demeanor of the victim, even after the lapse of

three years from the date of the incidence, speaks volumes about the

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mental trauma suffered by her and her mental condition upon seeing

the present appellant.

16. In his cross-examination, the appellant attempted to suggest

that the injury sustained by the victim was due to her falling while

playing. The said suggestion was categorically denied by the victim.

Thus, the cross-examination of PW-4 (Victim) could not shake her clear

and consistent examination-in-chief, which pointed towards the guilt of

the present appellant.

17. The testimony of PW-4 (Victim) is duly corroborated by the

testimonies of her mother (PW-3), her maternal uncle and complainant

(PW-2), and their neighbour, Smita Satishrao Tamgade (PW-5). The

learned Trial Court, in paragraphs 14, 15, and 16 of the impugned

judgment, has elaborately recorded how these witnesses corroborated

the incidence as narrated by PW-4 (Victim).

18. There are no material omissions or contradictions in their

testimonies which go to the root of the matter. Though there are certain

minor inconsistencies in the statement of the victim, it must be borne in

mind that she was a minor aged about six years at the relevant time.

Considering her tender age and the trauma endured by her, such minor

inconsistencies were bound to occur. However, these minor

discrepancies do not affect the core of the prosecution case.

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19. The evidence of the aforesaid prosecution witnesses, namely

PW-2, PW-3, PW-4, and PW-5, stands strongly corroborated by PW-6,

Dr. Rahul Uddhav Ramteke, who examined the victim and prepared the

forensic medical report. PW-6 specifically deposed regarding the injuries

found on the private parts of the victim, which reads thus:

“On examination I found that the patient was oriented to time,
place and person but was not co-operative in giving history about
the incident. I found linear abrasion (scratch) on back of trunk of
length 4 cm. Reddish in color. Patient was shifted to OT and
examination was carried under anesthesia. On local examination,
I found in fourchette and introitus/vagina that blood clots were
present in vagina, reddish in color. Hymen was torn at multiple
places, reddish in color with fresh bleeding.”

20. PW-6 further deposed that his findings on medical

examination were consistent with vaginal penetration, with evidence of

hymenal tears at multiple places. He explained that such hymenal tears

can occur only when there is penetration to a certain depth. He further

clarified that insertion of a finger into the hymen could cause such

injuries. Thus, the evidence of PW-6 strongly corroborates the

prosecution case regarding penetrative sexual assault upon PW-4

(Victim) by the present appellant.

21. PW-6 proved the forensic medical report, which was

exhibited at Exhibit 36. A perusal of the said report reveals that there

was active bleeding at the time of examination. Owing to the tender age

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of the victim, the examination was conducted in the operation theatre

under anesthesia. Blood clots, reddish in colour, were found in the

vagina. The hymen was torn at multiple places and was reddish in

colour with fresh bleeding. The doctor concluded that the findings were

consistent with vaginal penetration with evidence of hymenal tears at

multiple places.

22. PW-6 also proved the discharge summary of PW-4 (Victim),

which is at Exhibit 38 (record page No.58). The discharge summary

clearly supports the prosecution case regarding vaginal bleeding caused

by penetration of a finger, resulting in rupture of the hymen and the

presence of intravaginal clots, which were removed and cleaned at the

hospital. Thus, the medical evidence strongly corroborates the

prosecution case and establishes the guilt of the accused.

23. At this stage, it would be relevant to consider the definition

of “rape” as provided under Section 375(b) of the Indian Penal Code,

1860, which reads thus:

“(b) inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a woman
or makes her to do so with him or any other person;”

Thus, Section 375(b) of the IPC provides that the insertion

of any object or a part of the body, not being the penis, into the vagina,

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urethra or anus of a woman shall be rape as per the aforesaid section.

The medical evidence clearly showing the penetration of a finger into

the vagina of the victim by the appellant is duly proved and thus it can

be safely concluded that the appellant has committed an offence under

Section 376 of the IPC.

24. The same position emerges from the scientific evidence.

According to the prosecution, the frock and panties of the victim were

soaked in blood. The Investigating Officer noticed blood stains at the

spot, including on the stairs and on the road. He collected, seized, and

sealed the said bloodstained material, including cement concrete mixed

with earth, with the help of a hammer and chisel while preparing the

spot panchanama. The clothes of the victim were also seized from PW-2

Dinesh S. Fulzele.

25. The requisition dated 30th November, 2015, for sending the

seized muddemal property to the Regional Forensic Science Laboratory,

Nagpur, is at Exhibit 45 (record page No.67). In response to the said

requisition, the Investigating Officer received the report dated

20th August, 2016, from the Regional Forensic Science Laboratory,

Nagpur, which is at Exhibit 82 (record page No.121).

26. A perusal of the said report reveals that the blood detected

on the clothes of the victim, as well as on the cement concrete mixed

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with earth, was human blood. Further analysis was conducted by the

Assistant Chemical Analyzer at the Regional Forensic Science

Laboratory, Nagpur, by preparing a DNA profile. The DNA profile

revealed that the DNA found on the exhibits was identical and matched

with the DNA profile obtained from the bloodstained sample of the

victim. Thus, the Chemical Analyzer’s report also corroborates the

prosecution case.

27. When the appellant was questioned by the learned Trial

Court regarding the aforesaid incriminating findings, he failed to offer

any explanation and raised a two-fold defence, namely, that of alibi and

false implication, which reads thus:

“On the date of the incident, I had left the house at 8.00 am. for
my duty at Walfad Petrol Pang I was working as a Manager there.
I used to return home at 7.00 to 8.00 pm. I am not aware about
the incident at all. The police came to my house at about 10.00 to
10.30 pm. that night. I had guests in my house that day since it
was a Sunday. I was sleeping at night with my wife. I do not know
what happened. Police woke me up from my sleep and informed
me that an offence is registered against me and that I should
accompany them to the police station. I changed my clothes and
went to the police station along with my son on his motorcycle.
Police made enquiry with me. Since I did not know anything
about the incident, I became confused. I told the police that I
came home at night, had dinner and slept. I told them that I was
sleeping because I had to attend duty the next day. I do not know
anything about the incident. In 2014 my wife had stood for
elections for the opposition party and her opponent was Rajvilas
Domaji Moon. He used to persuade us to join him and fight the
elections together. However, we did not want to be on his side.
The elections got over. He was the friend of Dinesh Fulzale. We
had an argument with Rajvilas during elections. I therefore feel

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that Rajvilas has filed this case as a revenge because of the said
dispute. I do not know anything else.”

28. However, the aforesaid defence raised by the appellant is not

supported by the suggestions put forth in the cross-examination of the

prosecution witnesses. Though the appellant raised the plea of alibi,

except for his bare statement, there is not an iota of evidence on record

to substantiate the said plea. The appellant has not even remotely

established his absence from the scene of offence, either through

cross-examination of the prosecution witnesses or by examining any

defence witness in support of his case.

29. Further, the appellant did not put any question to the

prosecution witnesses, particularly PW-5, regarding any alleged enmity

with him. On the contrary, in the cross-examination of PW-3, it was

suggested that she was a neighbour of the appellant, that they shared

cordial relations, and that there was no dispute between them. Such

cross-examination at the instance of the appellant clearly washes out the

defence of false implication.

30. In fact, during the cross-examination of PW-4 (Victim), the

appellant attempted to suggest that there was a broken tree lying near

his house, that the victim used to play on the said tree along with her

friends, and that on the day of the incidence she fell while playing and

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sustained injuries. The said suggestion was categorically denied by the

victim. Nevertheless, it is evident that the defence was sought to be

developed on the theory of accidental injury while playing.

31. Further, the cross-examination of PW-6 (Doctor) reveals that

the appellant attempted to suggest that the injury sustained by the

victim could possibly occur if the girl inserted her own finger into her

vagina due to itching. These inconsistent and contradictory defences

taken by the appellant only strengthen the prosecution case. Thus, in

our considered opinion, the learned Trial Court was fully justified in

convicting the present appellant for the aforesaid offences on the basis

of the oral as well as documentary evidence on record.

32. Mr. Mardikar, learned Senior Counsel, invited our attention

to the evidence of PW-1 Nilesh Shende, who is a panch witness to the

spot panchanama. In his examination-in-chief, PW-1 deposed that the

house of the appellant is situated in Ward No.3. Mr. Mardikar further

pointed out the intimation notice dated 12 th October, 2015, issued by

the Investigating Officer, which is at Exhibit 11 (record page No.14). In

the said intimation notice, the sport of incidence is described as “the

residence of the appellant in Ward No.3, Mouza Barbadi.” However, the

spot panchanama dated 12th October, 2015 (Exhibit 12) records that the

house of the appellant is situated in Ward No.4. He vehemently

contended that such a discrepancy regarding the ward number is fatal to

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the prosecution case and creates a serious doubt about the correctness of

the investigation.

33. Mr. Doifode, learned APP, however, submitted that the

aforesaid discrepancy does not go to the root of the matter and does not

render the said spot panchanama inadmissible in evidence.

34. A perusal of the deposition of PW-12, Brijpalsingh

Rajpalsingh Thakur, the Investigating Officer, reveals that he has

specifically deposed that the spot of incidence was the house of the

appellant situated at Mouza Barbadi, Grampanchayat Ward No.4. It is

further noteworthy that, in the entire cross-examination relating to the

spot panchanama, no suggestion was put to the Investigating Officer on

the aforesaid aspect. In view thereof, the ground raised by the appellant

regarding the alleged discrepancy in the ward number deserves to be

rejected.

35. Mr. Mardikar, learned Senior Counsel, then sought to assail

the seizure reports. In that context, he invited our attention to Exhibit

13, the seizure panchanama dated 12 th October, 2015, thereby showing

the seizure of the frock, skirt, cloth and knickers of the victim. He also

referred to another seizure panchanama dated 13 th October, 2015

(Exhibit 70), pertaining to the seizure of the blood samples of the

appellant.

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36. The contention raised is that though the aforesaid muddemal

articles were seized on 12th October, 2015 and 13th October, 2015,

Property No.152/2015 came to be assigned only on 11 th November,

2015. In support of this contention, the appellant examined DW-1, ASI

Kishor G. Kohad (Exhibit 96), to substantiate that muddemal articles

are required to be assigned a property number on the day they are

deposited.

37. However, the record reveals that the appellant did not

cross-examine the Investigating Officer on this aspect. A perusal of the

cross-examination of PW-12 shows that though the witness was

extensively cross-examined in paragraphs 11 and 12 regarding the

seizure panchanama, there is no suggestion whatsoever about any

discrepancy in the assignment of the property number. In the absence of

any such suggestion, the appellant cannot now be permitted to

challenge the seizure panchanama on a ground for which no

opportunity was afforded to the Investigating Officer to furnish an

explanation.

38. Further, it is pertinent to note that the Chemical Analyser’s

report is only a corroborative piece of evidence. The guilt of the accused

stands established primarily on the basis of the substantive evidence of

PW-4 and other prosecution witnesses, which is duly corroborated by

the medical examination reports.

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39. Similarly, with regard to the alleged discrepancy as to

whether the clothes of the victim were seized at her house or at the

police station, all the prosecution witnesses have consistently deposed

that the clothes were soaked in blood. This version is corroborated by

the CA report as well as the DNA profile report. Therefore, the said

ground also deserves to be rejected.

40. Mr. Mardikar, learned Senior Counsel, further invited our

attention to the deposition of PW-1 Nilesh Shende (Exhibit 10, record

page No.11), wherein he admitted that before entering the witness box

he had gone through the contents of the documents. He also referred to

the cross-examination of PW-4 (victim), who admitted that she had

come to Court in the morning and was sitting in the office of the Public

Prosecutor.

41. Mr. Mardikar, learned Senior Counsel, relying upon the

judgment of the Gujarat High Court in Kanbi Vaghji Savji v. State of

Gujarat [AIR 1968 Gujarat 11], argued that the evidence of the

aforesaid two witnesses becomes inadmissible by reason of the bar

under Section 162 of the Code of Criminal Procedure. However, the

cross-examination of PW-4 does not disclose any admission that her

police statement was read over to her immediately before the recording

of her evidence. The same is the position with respect to PW-1.

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42. The Full Bench of the Gujarat High Court in Nathu

Manchhu v. State of Gujarat [1977 SCC OnLine Guj 37] has held thus:

“34. We may now examine the decision of the Division Bench of
the Bombay High Court in State v. Maganbhai Jhaverbhai,
Criminal Appeal No. 460 of 1953 decided by Vyas and Bavdekar,
JJ. on Sept. 29, 1953. The learned Judges were considering the
evidence of one Bai Sabu, daughter of Kashia Khalpa. Her
evidence would have connected the accused of that case with the
offence of murder under consideration. Her case was that while
she was preparing loaves, the deceased all of a sudden hurriedly
entered her house and ran into the back yard in a bleeding
condition. He was closely followed in to the backyard by the six
accused who were armed. Thereupon, she was terrified and ran
away from the house. It was found that her police statement was
read out to her before her evidence was recorded in the
Committing Magistrate’s Court as well as Sessions Court. Her
statement was recorded under S. 164 of the Code by a Magistrate
and before that also her police statement was read out to her. The
case would fall under case No. 1 of the five illustrative cases set
out earlier. Vyas, J. was of the view that on account of reading out
of her police statement at three stages her evidence was
inadmissible in view of the decisions of the Privy Council in
Zahiruddin’s case (48 Cri LJ 679(PC)) (supra). In his opinion,
the view expressed by the Privy Council was not to be confined
“only to the physical use or tangible use of her police statement by
a witness while giving evidence in Court.” The learned Judge
went on to say: “In other words, in order that the
observations of their Lordships made by them in the above
mentioned case may be attracted, the police statement of a
witness need not necessarily be in his hands or before his eyes at
the time of giving evidence in the court.”

“Speaking for myself, I have no doubt that their Lordships’
observations would apply with equal force even if a witness made
a mental use of his police statement, which was just previously
read out to him, because by reason of such mental use, the
witness’s evidence was bound to be moulded by or modelled on
his police statement.” The learned Judge then proceeded to give
illustration of a case in which a witness is “almost made to commit
to memory his police statement before stepping into the witness
box to give evidence”; and reasoned on this basis that the
evidence of such a witness was bound to be almost a copy of his

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police statement. Speaking with great respect, this is an extreme
example; and extreme examples do not become helpful in
interpretation of statute. With regard to Sabu’s evidence, the
learned Judge observed that material parts of her police statement
“must have almost come to be committed to memory” and her
evidence “must have been modelled on her police statement”. In
the end, the learned Judge said that reading over of the police
statement to witness before her stepping into the box amounts to
use of the police statement at the trial. Of course, in the
alternative, the learned Judge also said that the value of Sabu’s
evidence must suffer considerably.

Bavdekar, J. refused to express any opinion on “how far
the evidence of a witness would become inadmissible on the
ground that the witness’ police statement was used to refresh his
memory. He at the same time expressed concern on the practice
of reading over police statement to the witness before he enters
the box and said “it is doubtful how far the practice, which has
been deprecated by this court so often, would stop unless this
court were to hold categorically that the evidence of a witness
would be inadmissible in case his statement to the police was used
to refresh his memory”. What is of utmost significance for our
purpose is the learned Judge’s exposition of the basis of the Privy
Council’s decision in Zahiruddin’s case. The learned Judge said:

—

“But the fact remains that, in the case which was before
their Lordships of the Privy Council, the witness had used the
statement to refresh his memory while he was under examination
in the witness box and it was obvious, therefore, that it could not
be argued with any reason that the statement was not used at the
trial. I am inclined to think that the decision of their Lordships of
the Privy Council to exclude altogether from the evidence the
deposition of a witness given by him in such circumstances was
based not upon the view that the witness’s evidence amounted to
a police statement, but upon the view that it was the policy of the
Legislature to prevent any use of the police statement of a witness
at the enquiry or trial and if the witness was allowed to use his
police statement to refresh his memory when he gave the
evidence, it would be defeating the statute to allow his evidence
to come on record”. (Emphasis supplied), With respect, that is the
correct exposition of the ratio of the Privy Council decision which
was not based on any supposed identity between the police
statement and the evidence given, at the trial. If this is the correct
ratio laid down with respect to actual use of the police statement

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while giving evidence, what logically follows from it cannot be
considered to be the ratio of the Privy Council’s decision. The
said ratio does not apply to the questions referred to this Full
Bench and those questions are not concluded by the Privy
Council decision.

35. We have already seen that in State v. Maganbhai (Cri.

App. No. 460 of 1953, D/- 29-9-1953) (Bom) (supra) it was the
opinion of Vyas, J. alone which laid down that the evidence of a
witness to whom police statement was read over thrice at different
times before she gave evidence in the Sessions Court was
inadmissible on the basis that the bar of S. 162(1) was
contravened. Bavdekar, J., in terms refrained from expressing
definite opinion on this question. The Division Bench of this
High Court consisting of Divan and J.B. Mehta, JJ. in Kathi Moti
Lakha v. State of Gujarat, Criminal Appeal No. 543 of 1962
decided on 21/22nd Nov. 1963 laid down a similar principle after
referring to the decision of the Privy Council in Zahiruddin’s case
(48 Cri LJ 679(PC)) (supra) and Maganbhai‘s case (supra). The
Division Bench of this Court as appears from its judgment
reproduced the observations of Vyas, J. in Maganbhai‘s case
under the impression that that was the decision of the Division
Bench. Speaking with great respect, I am of the opinion that the
interpretation of S. 162 made by Vyas, J. and the Division Bench
of this Court is not correct in view of the conclusion reached by
me as to the interpretation and scope of the prohibition contained
in S. 162(1) in the context of the questions referred to the Full
Bench. It is already shown earlier that the cases covered by the
questions referred to this Full Bench are not governed by the
dictum laid down by the Privy Council in Zahiruddin’s case
(supra).

36. It must, however, be emphasised that the practice of
reading over police statements to witnesses before they enter the
box is not healthy practice.

37. In cases where such practice is resorted to, the
Magistrates and Judges should carefully consider the evidence
given by the witness and decide upon the probative value of such
evidence in view of the facts and circumstances of each case.

38. Answers to the questions referred to this Full Bench
are as under:

(1) The evidence of such witness does not become
inadmissible; its probative value has to be judged in the

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circumstances of each case. No hard and fast rule can be laid
down that in all such cases the evidence of such witness will be of
no value whatsoever.

(2) Reading over of the police statement to the witness
before he enters the box does not amount to contravention of the
prohibition contained in S. 162(1). But the fact of reading over of
the statement may affect the probative value of the evidence of
the witness.

(3) Reading over of such a statement to the witness before he
enters the box does not amount to use of such statement contrary
to S. 162(1). The matter will now go back to the Division Bench.”

43. Thus, so far as PW-4 (victim) is concerned, she has not at all

admitted that her police statement was read over to her prior to the

recording of her deposition before the Court. So far as PW-1 is

concerned, even if it is assumed that he had gone through the contents

of his documents, his evidence cannot be said to be completely

inadmissible. However, the probative value of evidence given by this

witness will be considered as per the facts and circumstances of the case.

44. In the present case, both the oral as well as the documentary

evidence strongly point towards the guilt of the accused. Consequently,

the ground raised by the appellant with regard to alleged improper

refreshing of memory loses its force and is accordingly rejected.

45. The submissions advanced by Mr. Mardikar, learned Senior

Counsel, regarding the presence of guests at the house of the appellant

on the date of the incidence, as well as the non-examination of the

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children who were allegedly playing with the victim, are noted only for

the purpose of rejection. Even if it is assumed that guests were present at

the house of the appellant, the presumption that the accused could not

have committed the offence in their presence runs contrary to the

principles laid down by the Hon’ble Supreme Court.

46. So far as the ground regarding the non-examination of the

minor children playing with the victim is concerned, the same is

unsustainable in law. The victim has categorically deposed about the

guilt of the accused, and her testimony stands corroborated by other

prosecution witnesses, the medical examination reports, and the

Chemical Analyser’s report. No further corroboration was required in

the facts of the case. Hence, the said ground also stands rejected.

47. Mr. Mardikar, learned Senior Counsel, invited our attention

to the evidence of PW-2, Dinesh Fulzele, the complainant, who

admitted in his cross-examination that the victim herself had given the

history of sexual assault to the doctor. He also referred to the deposition

of PW-4 (victim), who stated that she had informed the doctor about

the incidence. It was contended that these statements are contradicted

by PW-6, Dr. Rahul Ramteke, who, in his examination-in-chief,

deposed that the history was narrated by the victim’s maternal uncle.

According to the learned Senior Counsel, such contradiction vitiates the

prosecution case.

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48. Such submission at the behest of the learned Senior Counsel

deserves to be rejected by this Court on the ground that the history is

only one column in the forensic medical report. The main content of

such report is the severe bleeding injuries caused in vagina of PW-4

(victim) resulting in profuse bleeding at the behest of the appellant,

which supported the prosecution case. The medical report clearly

pointed out that the findings are consistent with penetration of vagina

with evidence of hymenal tears at multiple places.

49. Significantly, the aforesaid findings of PW-6 have not been

challenged by the appellant either during cross-examination or before

this Court in the present appeal. In such circumstances, the question as

to who narrated the history to the doctor becomes irrelevant in view of

the categorical medical findings recorded after a detailed examination of

PW-4, which strongly corroborate the prosecution case.

50. The last limb of the argument advanced by Mr. Mardikar,

learned Senior Counsel, pertains to the recording of the FIR. It is

contended that the prosecution failed to examine ASI Sayara Pathan,

who recorded the FIR, and therefore the appellant is entitled to the

benefit of doubt. However, the learned Senior Counsel has not

demonstrated as to what prejudice has been caused to the appellant on

account of such non-examination, particularly when the registration of

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the FIR has been duly proved through the depositions of PW-12, API

Brijpalsingh Rajpalsingh Thakur, and PW-13, PSI Pranita Sonaji Karale.

51. Moreover, it is noteworthy that the appellant has not

disputed the factum of recording of the FIR. In the absence of any

challenge to its registration or any prejudice shown to have been caused,

the said contention is devoid of merit and deserves to be rejected.

Accordingly, Issue No.(i) is answered in the affirmative, and Issue

No.(ii) in the negative.

52. In view of the aforesaid discussion, we are of the considered

opinion that the present appeal lacks merit and is accordingly dismissed.

Pending applications, if any, stand disposed of.

(RAJ D. WAKODE, J.) (ANIL L. PANSARE, J.)

53. At this stage, Mr. Mardikar, learned Senior Counsel, submits

that the appellant is 69 years of age and that the learned Trial Court has

imposed the sentence of imprisonment for life, which means

imprisonment for the remainder of his natural life, for the offences

punishable under Section 376(2)(f)(i) of the IPC and Section 6 of the

POCSO Act.

54. Mr. Mardikar, learned Senior Counsel, places reliance upon

the judgment of the Hon’ble Supreme Court in Criminal Appeal

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No.1072 of 2018 (Umesh Yadav & Ors. vs. The State of Bihar, decided

on 30th October, 2025) and submits that the approach adopted by the

Hon’ble Supreme Court in the said judgment, where the sentence was

modified to a fixed term of 14 years of actual imprisonment considering

the advanced age of the appellants therein, ought to be adopted by this

Court. He, therefore, prays that the quantum of punishment imposed

upon the present appellant be reduced to a fixed term of 14 years.

55. Mr. Mardikar, learned Senior Counsel, has also tendered

across the bar certain documents regarding the health condition of the

appellant to demonstrate that he is not in good health. However, a

perusal of the aforesaid judgment of the Hon’ble Supreme Court reveals

that, in that case, the learned counsel for the appellants had not

challenged the conviction on merits. Furthermore, the incidence therein

had taken place more than three decades earlier, and the offences

alleged were under Sections 302/149 and 323/149 of the IPC.

56. The case in hand clearly defers from the aforesaid case, as the

learned Senior Counsel has extensively argued the appeal on merits.

The incidence in the present case is of the year 2015, and the offence

involved is one of aggravated penetrative sexual assault and rape upon a

minor child aged five years and eleven months, allegedly committed by

the appellant, who was more than 60 years of age at the time of the

incidence.

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57. Section 42 of the POCSO Act mandates that where an act

constitutes an offence punishable both under the IPC, including

Section 376, and under the POCSO Act, the offender shall be liable to

punishment which is greater in degree.

58. The learned Trial Court, while imposing the maximum

punishment upon the present appellant, has recorded the following

reasons:

“It is a well-settled principle governing sentencing policy that the
punishment for the offense should be commensurate with the
gravity of the crime. In the case at hand, a young innocent child
who trusted the accused went to his house to play was meted out
with a grotesque, diabolical and dastardly act by the accused. She
suffered severe injuries which lead to profuse bleeding of her
vagina. She had to be admitted to the ICU. Needless to add that
the victim has endured enormous physical, mental and emotional
pain due to the said offense. The act committed by the accused
wreaks of gross perversion. The photographs of her blood-soaked
clothes and the spot speak volumes of the severe injury inflicted
upon the victim as a result of the sexual assault. The victim had
not even completed 6 years of age on the date of commission of
the offense. Offenses against women and children are on the rise
in our country and need to be dealt with an iron hand.”

59. Thus, for the reasons stated hereinabove, we are not inclined

to accede to the request made by the learned Senior Counsel for

reduction of the sentence of imprisonment imposed upon the appellant.

The said request is, accordingly, rejected.

                                 (RAJ D. WAKODE, J.)                              (ANIL L. PANSARE, J.)

Signed by: Mr. Vijay Kumar
                              Vijaykumar
Designation: PA To Honourable Judge
Date: 25/02/2026 18:51:36