1 CRI.APEAL 645-2023-J.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH AT NAGPUR CRIMINAL APPEAL NO. 645 OF 20 23 Kawadu Maygu Sindimeshram, Aged about 29 yers, Occ. Labourer, R/o. Shivnala, Tah. Pauni, District - Bhandara ... Appellant .. Versus .. 1) State of Maharashtra, Through Police Station Officer, Police Station Pauni, District Bhandara. 2) VICTIM XYZ of Crime No. 181/2018 of Police Station Pauni, Dist. Bhandara (M.S.) ...Respondents ------------------------------------------------------------------------------- Shri K.G.Rathi, Advocate (appointed) for appellant. Shri B.M.Lonare, APP for respondent no. 1/State. Ms. Neerja G. Chaubey, Advocate (appointed) for respondent no. 2. ------------------------------------------------------------------------------- CORAM : NEERAJ P. DHOTE, J. DATE OF RESERVING THE JUDGMENT : 02/02/2026 DATE OF PRONOUNCING THE JUDGMENT: 04/03/2026 JUDGMENT This is an Appeal under Section 374(2) of the Code 2026:BHC-NAG:3561 2 CRI.APEAL 645-2023-J.odt of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) against the judgment and order dated 30/07/2022 passed by the learned Additional Sessions Judge (Special Judge, POCSO), Bhandara in Special Case (Child Protection) No. 32 of 2018, convicting and sentencing the Appellant as follows:- “1) The accused Kawdu Maygu Sindhimeshram, resident of Shivnala, Tah. Pauni & Distt. Bhandara is hereby convicted under Section 235(2) of Code of Criminal Procedure for the offences punishable under 363, 366-A, 376(2)(n) & 506 of the Indian Penal Code and under Sections 6, 10 & 12 of Protection of Children from Sexual Offences Act, 2012. 2) The accused is sentenced to undergo rigorous imprisonment for three years for an offence punishable 363 of Indian Penal Code and to pay fine of Rs.10,000/-, in default of payment of fine further S.I. for three months. 3) The accused is sentenced to undergo rigorous imprisonment for three year for an offence punishable 366(A) of Indian Penal Code and to pay fine of Rs. 10,000/-, in default of payment of fine further S.I. for three months. 4) The accused is sentenced to undergo rigorous imprisonment for two years for an offence punishable 506 of Indian Penal Code and to pay fine of Rs.5,000/-, in default of payment of fine further S.I. for three months. 5) The accused is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- for an offence punishable 6 of the Protection of Children from 3 CRI.APEAL 645-2023-J.odt Sexual Offences Act, 2012, in default of payment of fine further S.I. for three months. 6) The accused is sentenced to undergo rigorous imprisonment for five years for an offence punishable under Section 10 of Protection of Children from Sexual Offences Act, 2012 and to pay fine of Rs. 10,000/-, in default of payment of fine further simple imprisonment for three months. 7) The accused is sentenced to undergo rigorous imprisonment for three years for an offence punishable under Section 12 of Protection of Children from Sexual Offences Act, 2012 and to pay fine of Rs. 10,000/-, in default of payment of fine further simple imprisonment for three months. 8) All the punishment shall run concurrently. 9) The period of detention undergone by the accused during investigation and trial shall be set off against the term imprisonment imposed on him. 10)….. 11) …. 12) …..” 2. The prosecution’s case as revealed from the police report is as under:- 2.1 The victim was residing with her parents at Dhamni. The relative of the Appellant was residing near her house. The Appellant was distantly related to the victim. The victim and the 4 CRI.APEAL 645-2023-J.odt Appellant were known to each other, and their families were on visiting terms. The Appellant did sexual intercourse with the victim on several occasions at different places without her consent. When the victim came to know that, the Appellant is already married, she stopped talking with him. The Appellant threatened her and therefore, the victim again started meeting the Appellant. Even thereafter, the Appellant did sexual intercourse with her without her consent. As the victim got fed up of the harassment by the Appellant, she informed her father about the same. Even after the victim’s parents gave understanding to the Appellant, he did not stop harassing the victim. Eventually, the report was lodged with the concerned Police and Crime bearing No. 181/2018 came to be registered against the Appellant for the offences punishable under Sections 363, 366 (A), 376 (2)(n) and 506 of the Indian Penal Code (for short, ‘I.P.C.’) and for the offences punishable under Sections 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). The Appellant came to be arrested. The spot panchanama was drawn. The statements of the witnesses were recorded. The clothes of the Appellant and that of the victim came to be seized. The victim was sent for medical examination. The documents in 5 CRI.APEAL 645-2023-J.odt respect of age of the victim were collected. 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.19 for the offences punishable under Sections 363, 366(A), 376(2)(n) and 506 of the IPC and for the offences punishable under Sections 6, 10 and 12 of the POCSO Act. The Appellant pleaded not-guilty and claimed to be tried. To prove the charge, the prosecution examined in all eleven (11) witnesses. The relevant documents were brought on record in the evidence of the witnesses. 2.3 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. The Appellant denied the evidence and case of the prosecution. On appreciating the evidence available on record, the learned Trial Court passed the impugned judgment and order convicting and sentencing the Appellant as above. 3. Heard the learned Counsel for the Appellant, the learned APP for the State and the learned Counsel for 6 CRI.APEAL 645-2023-J.odt Respondent no. 2 - victim. In view of the order dated 30/10/2023 passed by this Court, the notice to the Respondent no. 2 victim was kept in abeyance. Scrutinized the evidence available on record. (a) It is submitted by the learned counsel for the Appellant that, the prosecution failed to establish that, the victim was minor. The documents brought on record in the evidence of the victim cannot be relied, as the same were not proved by examining the relevant witness. There was scratching on the name in the record of Gram Panchayat. Different name is shown in the birth certificate. The evidence of the victim cannot be relied, as the history given to the Medical Officer was of consensual relations. The Chemical Analyzer’s Reports (CA reports) are not incriminating in nature. The evidence on record do not establish the charge against the Appellant. The composite questions were put by the learned Trial Court to the Appellant in the Statement under Section 313(1)(b) of the Cr.P.C. The learned Trial Court convicted the Appellant by misinterpreting the evidence on record. The Appeal be allowed and the Appellant be acquitted. 7 CRI.APEAL 645-2023-J.odt (b) It is submitted by the learned APP for the State that, the case rests on the testimony of the victim. The victim’s name was tattooed on her hand. To show that, the victim was minor, the Birth Certificate, and Transfer Certificate (T.C.) from the School are brought on record in the evidence of the victim. There is sufficient evidence on record to prove the charge, and no fault can be found with the judgment and order of the learned Trial Court and the Appeal be dismissed. (c) The learned Advocate appointed for the Respondent no. 2- victim submitted that, the victim’s evidence was sufficient to prove the charge, and no fault can be found with the judgment and order of the learned Trial Court. 4. When the charge is for the penal Sections of the POCSO Act, it becomes necessary for the prosecution to establish that, the victim was a child as defined under Section 2(d) of the POCSO Act i.e. below 18 years of age. The evidence of the victim in respect of her own date of birth is not admissible being hearsay. Though a copy of School Leaving Certificate below Exh. 36 is brought on record in the evidence of the victim, no witness from the said school was examined to prove the said 8 CRI.APEAL 645-2023-J.odt document and to prove, on what basis, the date of birth was recorded in the school record. Therefore, the said document is not of any assistance to the prosecution. A copy of Birth Certificate below Exh. 35 issued by the concerned Gram Panchayat is brought on record in the evidence of the victim. The evidence of P.W.-11 - Sneha Shivkumar Girhepunje shows that, she was the Gram Sevak in the Dhamni Gram Panchayat. She appeared pursuant to the witness summons. She came with the original register showing the entries from January, 2000 to December, 2000. The Exh.35 Birth Certificate was confronted to her. Her evidence shows that, the said Birth Certificate was issued by the Gram Panchayat. The said entry was made on the information given by the father of girl. According to her, the date of birth recorded in the record was 21/08/2000. However, it has come in her cross-examination that, there was overwriting in the original register and the name “Deokanya” was written. Her cross- examination shows that, the police did not enquire with her. The above evidence though shows that, there was entry in the Gram Panchayat record in respect of date of birth of girl child, there was overwriting in the record and name “Deokanya” was written. The evidence of the victim shows that, in the school record, her 9 CRI.APEAL 645-2023-J.odt name was mentioned as ‘Seema’ and in Birth Certificate, her name was mentioned as “Deokanya”. The victim admits in the cross-examination that, no one knows her as “Deokanya”. The parents of the victim are not examined and therefore, it is not known as to why two different names of the victim were recorded. In light of the above, the evidence in respect of the date of birth of the victim is not concrete and credible and cannot form the basis to prove the age of victim. 5. The victim was examined as P.W.-1. Her evidence shows that, she was residing with her parents at Dhamni. The Appellant was the nephew of one Dhurpatabai who was residing near her house. Her evidence shows that, the said Dhurpatabai was in her relation. She knew the Appellant prior to 2-3 years of the incident. Once with her friend, she had gone at one place in the evening where the Appellant and one Chandrabhan had come there. On the next day again, the victim and her friend went near the canal at some distance of the village in the night in between 10 to 11 p.m., where the Appellant and said Chandrabhan were present. The said Chandrabhan and victim’s friend went at some distance together. The Appellant and the victim remained at the 10 CRI.APEAL 645-2023-J.odt said place. The Appellant committed forceful sexual intercourse with her despite resistance. Undisputedly, the said incident was not reported by the victim to anyone. The Appellant and the victim continued meeting at short intervals. The sexual intercourse between them used to take place when they met. Though the victim deposed that, the Appellant kidnapped her while she was going to school, the said version is required to be seen with doubt. The victim’s evidence further shows that, the Appellant took her to other villages and they stayed there together for four (4) days, during which period, the sexual intercourse took place. According to the victim, when the Appellant was continuously harassing her by making phone calls, she narrated the incident to her parents and the report was lodged. 6. It has come in the cross-examination of the victim that, had the accused not being a married person, she would have married him. From the evidence of the victim, the possibility of consensual relations with the Appellant cannot be ruled out. Her evidence shows that, she used to accompany her friend whenever her friend went to meet Chandrabhan. It is clear from the victim’s 11 CRI.APEAL 645-2023-J.odt evidence that, despite the first sexual intercourse by the Appellant without her consent, she continued meeting the Appellant. She also stayed with the Appellant in the other village. This is sufficient to draw the inference that, their relationship was consensual. The medical evidence shows that, the history of consensual sexual intercourse was given to the Doctor at the time of the victim’s medical examination. This shows inconsistency in the victim’s version at the time of her medical examination and before the trial Court. Her testimony, therefore, about rape by the Appellant on her is required to be seen with doubt. It is clear from the evidence of the victim and the medical evidence that, she is not the witness upon whom reliance can be placed. 7. Accepting for the sake of argument the date of birth of the victim recorded in the Gram Panchayat record, her age at the relevant time she was 17 years and 10 months. So, the victim was nearing 18 years of age, if the said date of birth is accepted. Further the evidence of P.W.-10 Dhanashree Arvind Dahake, Investigating Officer shows that, the victim was the matured girl of 17 years and 10 months. The victim’s evidence shows that, she got married. On this point, the learned counsel for the Appellant 12 CRI.APEAL 645-2023-J.odt cited the decision of this Court dated 10/07/2023 in Criminal Appeal No. 1184/2019, wherein the victim was aged 17 years and 5 months and was in consensual sexual relations with the accused therein and the conviction was set aside. The evidence of the other witnesses are not relevant, therefore, not discussed. Even, during the course of argument, neither side adverted to the other evidence on record except that of victim, Medical Officer and the witness of the Gram Panchayat. As the testimony of the victim is found to be highly doubtful, the conviction and sentence recorded by the learned Trial Court is liable to be set aside. Hence, the following order:- ORDER I) The Criminal Appeal is allowed. II) The conviction and sentence awarded by the learned Additional Sessions Judge, Bhandara against the Appellant in Special (Child Protection) Case No. 32 of 2018, by the impugned judgment and order dated 30/07/2022, is hereby quashed and set aside. III) The Appellant is acquitted for the offences punishable under Sections 363, 366-A, 376(2)(n) & 506 of the Indian Penal 13 CRI.APEAL 645-2023-J.odt Code and for the offences punishable under Sections 6, 10 & 12 of Protection of Children from Sexual Offences Act, 2012. IV) The Appellant is behind the bars. He be set at liberty, if not required in any other offence. V) The fine amount, if any, paid by the Appellant, be refunded to him. VI) Record and Proceedings be sent back to the learned Trial Court. VII) The fees of the learned Advocate appointed to represent the Appellant is quantified at Rs. 15,000/- [Rupees Fifteen Thousand Only], which shall be paid by the High Court Legal Services Sub-Committee, Nagpur. VIII) The fees of the learned Advocate appointed to represent the Respondent no. 2 - Victim is quantified at Rs. 7,500/- [Rupees Seven Thousand Five Hundred Only], which shall be paid by the High Court Legal Services Sub-Committee, Nagpur. [NEERAJ P. DHOTE, J.] B.T.K.