Satish @ Golu Onkarrao Marwadi vs State Of Maharashtra & Ors.

By the present appeal under Sec. 374(2) of Code of Criminal Procedure, the Appellant has assailed the Judgment and Order dated 24/05/2023 passed in Special (Child) Case No. 99 of 2020 by the learned Additional Sessions Judge, [Special Judge, (POCSO Act)], Yavatmal, thereby the Appellant has been convicted for the Offences punishable under Sections 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 (for Short, “POCSO Act”).

It is the case of the prosecution that, on 26/08/2020, the PW-2 - Informant, the victim's father returned at his house from work. At that time, his wife informed him that, on 24/08/2020 and 25/08/2020, the accused had visited his house and after removal of pant of victim PW-1, the Appellant/accused inserted his male organ in the anus of the victim by applying coconut oil, due to which, his son victim was complaining about pain in his anus. The Informant PW-2 also confirmed said fact from his son/victim PW-1. Further, the father of another victim PW-3 also informed the Informant P. W. 2 about insertion of male organ by the appellant/accused in the anus of victim (P.W.3). However, due to fear of defamation of child, no FIR was lodged immediately. Ultimately, on 09/09/2020, the PW-2 Informant visited Police Station Babhulgaon and lodged FIR against the Accused about committal of carnal intercourse with his son P. W. 1 and another victim P. W. 3. On the basis of said FIR, a Crime No. 354 of 2020 was registered against the Appellant/Accused for the Offences punishable u/s 377 of I.P.C. and Sections 4, 6, 8 and 12 of the POCSO Act.

The PW-5 - Sandip Atmaram Patil, the API carried investigation. He referred both the victims for medical examination and recorded statements of both the victims as well as witnesses. The PW-5 – Sandip Atmaram Patil, Investigating Officer arrested the Appellant/Accused on 09/09/2020. The Investigating Officer drew the spot panchnama and seized the clothes of victim as well as Appellant/Accused and Chadar under the seizure panchnamas. The Investigating Officer also collected the biological samples of the both the victims and accused through the Medical Officer and sent for Chemical Examination. He also recorded statements of the witnesses under Section 161 of the Code of Criminal Procedure and collected birth certificates of the victims to show that, on the day of incident, victims were ‘Child’ within the ambit of Section 2(1)(d) of the POCSO Act. After completion of investigation, the PW-5 Investigating Officer filed charge sheet against the Appellant/Accused.

In order to prove the charges, the prosecution examined PW-1 Victim at Exh. 29, PW-2 Victim's father at Exh. 33, PW-3 second Victim at Exh. 52, PW-4 – Sumitra Vasantrao Ikhar, the grand-mother of second Victim at Exh. 53 and PW-5 - Mr. Sandip Atmaram Patil, the Investigating Officer at Exh. 71.

The prosecution proved the following documentary evidence.

74 Request Letter to the Judicial Admitted by Magistrate First Class, First Class Defence Court, Babhulgaon.

After conclusion of the trial, the learned Trial Court recorded statement of the accused u/s 313 of the Code of Criminal Procedure. The defence of the accused is of total denial and is falsely implicated in crime on ground that, his brother and father of second victim was carrying business of Egg-Rice and he was visiting there to help his brother, hence, out of business rivalry, he has been falsely implicated in crime.

On 24/05/2023, the learned Additional Session Judge, passed the impugned Judgment and Order holding guilty to the Appellant/accused for the Offences punishable under Section 377 of I. P. C., Sections 4, 6, 8 and 12 of the POCSO Act and sentenced him to suffer (a) 20 years Rigorous Imprisonment with fine of Rs. 20,000/- for offence punishable under Section 6 of the POCSO Act in default, Simple Imprisonment for six months (b) 3 years Rigorous Imprisonment with fine of Rs. 5,000/- for offence punishable under Section 8 of POCSO Act, in default, Simple Imprisonment for three months but no separate sentence is awarded under Section 377 of IPC, hence, this appeal.

Ms. S.S. Jadhav, the learned counsel appearing for the appellant has filed written notes of arguments and orally argued the matter for considerable period. Mr. Umale, the learned Additional Public Prosecutor orally argued the matter. Upon hearing both the sides, following points arose for my determination and I have recorded findings thereon hereinafter as under:

The points 1 to 5 are interlinked to each other and as such the prosecution adduced common evidence, therefore all these points are being considered and decided together for the sake of convenience.

Since the Appellant / the accused tried for the offences punishable 377 of IPC and Sec. 4, 6, 8 and 12 of the Protection of Child from Sexual Offences Act, 2012 (In short "POCSO Act"), which provides punishment for carnal intercourse against the order of nature and aggravated penetrative sexual assault against the child within the meaning of Section 2 (1)(d) of POCSO Act. Therefore, the prosecution was under an obligation to establish that, the appellant/accused committed carnal intercourse against the Child Victims P. W. 1 and P. W. 3.

Ms. S.S. Jadhav, the learned counsel appearing for the appellant canvased that, though the P. W. 1/Victim deposed at Exh. 33 that, the accused removed his pant and victim's and inserted his male organ in the anus of victim on 4 - 5 occasions, however, there are material omissions and contractions. Further, there are several persons by name Golu in the village. The victim PW-1 has not disclosed surname of the accused. The PW-1 admitted in his cross examination about narration of incident to the Police by his father and father of another victim PW-3. The PW-1 victim further admitted that, he did not meet the appellant/accused in past 3 months prior to lodging of the FIR. Therefore, the PW-1 is a tutored witness, hence, his evidence is not cogent and reliable. Therefore, the learned Trial Court ought to have acquitted the appellant for said offence, however, the learned trial Court failed to appreciate defence and passed the impugned order, hence, prayed for quashing and setting aside the same.

Ms. S. S. Jadhav, learned counsel appearing for the appellant canvassed that, as per the evidence of prosecution witnesses, PW-1 Victim PW-3 Victim and PW-4 incident of sexual assault occurred with the victims PW-1 and PW-3 on 24/08/2020 and 25/08/2020. The informant PW-2 came to know about said incident on 26/08/2020 but the P. W. 2 lodged Oral Report Exh.35 on 09/09/2020 after 14 days from the date of knowledge. The prosecution has not offered any explanation for lodging of delayed report Exh.35. Therefore, for unexplained delay of 14 days, it creates doubt about occurrence of such incident, hence, the prosecution case is fatal.

The learned defence counsel further canvassed that, the PW-2 / informant admitted in his cross-examination that the victim PW-3's father was with him prior to lodging of the FIR and at the time of lodging the FIR Exh. 36. As per the evidence of the prosecution, the P. W. 2 Informant discussed with the father of PW-3 victim but no explanation has been given for lodging the delayed FIR. Therefore, on this count alone, the appellant/accused is entitled to receive benefits of doubt.

The learned counsel appearing for the appellant further canvassed that, the PW-1 / victim admitted that, there are many persons by the name of Golu in his locality and he had not disclosed surname of the accused. PW-1 admitted that while recording his statement under Section 161 of Code of Criminal Procedure, he had not stated that, the accused used to insert his male organ in his anus. Therefore, material omissions brought on record, which fatal the case of the prosecution. It is further canvassed that, PW-2 admitted in his cross-examination that, the father of PW-3 victim was doing the business of Egg-Rice and brother of accused also carried the business of Egg-Rice. The accused visited the shop of his brother to assist him. Therefore, due to business rivalry, the possibility of false implication of the accused cannot be ruled out. However, the learned trial Court failed to consider defence of the appellant and passed the impugned order.

The learned counsel appearing for the appellant / accused further canvassed that, as per the FIR Exh.36, sexual assault occurred on several times even prior to 25/08/2020, however, the PW-2 deposed in his evidence that, on 26/08/2020, he was at his field and at about 7.00 p.m., he returned to his house. Thereafter, his wife informed him about sexual assault on his son victim P. W. 1 on part of the appellant/accused by removing pant and touching by male organ to the anus. However, PW-1 / victim deposed at Exh.29 about insertion of his male organ in his anus. The fact of insertion in PW-1’s anus has not been stated while recording his statement under Section 164 of Cr.P.C. Therefore, there are material contradictions in the evidence of prosecution witnesses, hence, the prosecution failed to prove charges against the accused. Therefore, the appellant/ accused entitled for acquittal.

The learned counsel appearing for the appellant further canvassed that, as per the evidence of PW-2 / informant, the incident took place at once but as per the evidence of victim / PW-1, the appellant/accused did such act on 4 – 5 times. Therefore, there is no consistency in the evidence of the victim and P. W. 2, hence, the prosecution witnesses are not trustworthy, hence, the appellant is entitled for the acquittal.

The learned counsel appearing for the appellant / accused further canvassed that, the prosecution allegedly had shown two victims PW-1 and PW-3. The Medical Examination Reports Exh. 64 & 65 does not support the case of prosecution about carnal intercourse and aggravated penetrative sexual assault against the victims P. W. 1 and 3. Therefore, the prosecution failed to frame charges against the Appellant.

It is further canvassed that, as per evidence of P. W. 3, appellant/accused used to touch his male organ to the anus of victims P. W. 1 and P. W. 3. However, said fact has not been stated to Police as well as before the Court while recording his statements u/s 161 and 164 of Cri. P. C., hence, testimony of the prosecution's witness is not in corroboration.

The learned counsel appearing for the appellant further canvassed that, the prosecution produced FSL reports Exhs. 24, 25, 26 and 27 and appellant/accused admitted the same. However, all these reports regarding findings blood-stain and semen-stain on clothes remain uncorroborated. As per the medical examination of PW-1 and PW-3 at Exhs. 64 and 65 does not prove that, both the victims were sexually abused and there were aggravated sexual assaults. Therefore, the prosecution case is fatal.

In support of his submissions, the learned counsel appearing for the appellant placed reliance on judgment dated 11/08/2026 passed by the Hon’ble Supreme Court in Criminal Appeal No.1052/2016 (Ramsingh Vrs. State of Himachal Pradesh), wherein the Hon’ble Supreme Court observed in Para Nos.14, 15 and 16 as under :

It further relied on the judgment dated 11/03/2026 (Vivek Khushal Rangari Vrs. State of Maharashtra and others), DLD (Cri.)-2026-4324 passed by this Court (Coram: Neeraj P. Dhote, J.), wherein 9 years old victim was allegedly kidnapped and subjected to unnatural sexual intercourse by the appellant / accused in a public toilet near a play-ground where the victim was playing with his friends. The victim had informed his mother about the incident which led to registration of crime for the offences punishable under Sections 367, 377 of IPC and Sections 4 and 6 of the POCSO Act. The medical examination was conducted but showed no injuries. Further, on examination, the Medical Officer found no sign of injury or abrasion on the penis of the appellant/accused. As per the opinion of the Medical Officer, no sign of any injury or abrasion on the victim was found. The Medical Officer took the cotton swab of anal region and blood sample of the victim. However, CA report (Chemical Analyzer’s Report), two blood stains on the jeans pant of the victim and blood stains on the full pant and full T-shirt of appellant, blood group was not determined as the result was inconclusive. Under the circumstances, this Court held that the prosecution failed to prove the charge against the appellant / accused.

Per contra, the learned APP as well as the learned counsel appearing for the respondent Nos. 2 and 3 victims supported the findings recorded by the learned Trial Court. It is canvassed that, the PW-4 Grand-mother of victim/ PW-3 appears to be an eye-witness to the incident of sexual assault. The PW-4 deposed at Exh.53 that, the PW-3 is her grand-son. The incident of aggravated sexual assault was committed with her grand son PW 3 prior to two months of lodging the FIR. She is an eye witness, who saw the incident when she peeped through the hole of door at 6.30 p.m., when she gave call to her grand-son (victim PW-3) but no answer was received from him. Further, two days prior to lodging the FIR Exh. 36, P. W. 4 informed said incident to the father of PW-3/victim.

It is further canvassed on behalf of the Respondent prosecution that, the victims PW-1 and PW-3 both were medically examined by the Medical Officer and proved medical examination reports are at Exh.64 and Exh.65. The appellant/accused admitted both Medical Reports, wherein, the Medical Officer opined about possibility of sexual assault against the Victims P. W. 1 and P. W. 3. Therefore, the prosecution discharged the burden and sufficiently proved charges against the appellant/accused, hence, prayed for dismissal of the appeal.

Having regard to the the rival submissions canvassed on behalf of both the sides, I have gone through the record. As per the evidence of PW.2 at the time of incident, the victim- 1 (P. W. 1) was 8 years old and he was student of 3^rd standard. The prosecution proved Exh. 34 Birth Certificate of the P. W. 1 as 27-12-12. The Birth Certificate Exh. 34 is the public record, hence, it is admissible u/s 35 of the Evidence Act. As per evidence of the PW-3, he was 8 years old at the time of incident. The appellant/ accused has not brought any material on record to discard testimony of the prosecution witness in respect of age of the victims. Therefore, I am of prima facie view that, the victims PW-1 and PW-3 are "Child" within the meaning of Sec. 2(1)(d) of the POCSO Act.

It has come on record that, the accused used to visit the house of P. W. 1 and he used to remove his own pant as well as pant of the victim P. W. 1. Thereafter the accused used to insert his male organ in the anus of P. W. 1. The P. W. 1 deposed that, the appellant/accused did the said act on 4 - 5 times. The victim P. W. 1 informed said fact to his brother and then his brother informed said fact to his mother but there appears material contradictions.

The P. W. 2 Informant deposed that, on 26/08/2020, at about 7.00 p.m., he returned to his home from his work and at that time, his wife informed him that, the appellant / accused had removed his pant and pant of the victim (PW1). The accused made the victim PW-1 lie on the cot and touched his male organ to the anus of PW-1/victim. Thereafter, he made enquiry with his son PW-1, who narrated about the incident. The father of PW-3 also informed him about committing said dirty act with his son PW-3 by the accused. Lastly, on 09/09/2020, he lodged an oral report Exh.35 and the police registered FIR Exh.36.

The P. W. 2 had undergone cross-examination, however, several omissions and contradictions were brought on record about information given by his wife on 26/08/2020 in respect of removal of pant by the accused and pant of victim PW-1 as well as making him lie on the cot and touching his male organ to the anus of victim PW 1. Further, there are omissions in respect of disclosing of incident by his son to the wife of PW-2 and consuming period of 7-8 days for thinking to lodge the report. Though the PW-2 deposed that his wife had informed him about sexual assault at hands of the accused but the prosecution failed to examine the mother of victim P. W. 1 to whom incident of sexual assault was disclosed.

The prosecution examined another victim PW-3 at Exh.52. The PW-3 deposed that, he knows the accused, who is residing in his village near the temple. The accused was visiting at his house. The accused used to remove victim's pant and his pant and used to touch his organ of urination to his anus. In cross-examination, the PW-3 deposed that, he had stated to the police and before the Court that, the accused used to touch his organ of urination at the place of his anus. However, he has not given any reason as to why the said fact has not mentioned in his statement. Therefore, there are material omissions and contradictions in testimony of the P. W. 3 Victim, which certainly creates doubt about carnal intercourse against the order of nature as well as aggravated sexual assault.

The appellant / accused / defence admitted spot panchnama, clothes of the victims and accused as well the medical examination reports of the victims PW-1 and PW-3 at Exh.64 and

The Medical Examination Report Exh.64 is pertaining to victim PW-1. As per the medical report, on local examination of anal and perianal region, it was found normal and admits one finger and no stain of semen or blood was found. The Medical Officer opined that there is nothing suggestive that the child has fallen for any sexual abuse recently, but the history is given by the victims and his father. The Medical Officer has not found any injuries at anus and any other part of body of the victim PW-1.

As per the medical examination report Exh.65 pertaining to victim PW-3, the anal and perianal region was found hygienic, good, no pain and tenderness. No injuries were found on the anus or any other part of body of the victim. As per the medical examination report, anus admits one little finger and no any stain of semen, blood / lubricant is found. The Medical Officer opined that the possibility of forceful anal intercourse is least likely. As per the Forensic Examination Reports Exhs. 24, 25, 26 and 27, the collected forensic substance of both the victims as well as accused is inconclusive.

Therefore, considering the view taken in the case of Ramsingh Vrs. State of Himachal Pradesh (cited supra), on behalf of the appellant, if the FSL report does not disclose about detection of blood or semen on the clothes of the victims and no any injuries were found to the anus of victims, it creates doubt about carnal sexual intercourse and aggravated sexual assault.

It is matter of record that, although PW-4, the grand-mother of the victim (PW-3) deposed that upon receiving no response from PW-3, she peeped through a hole in the door and observed the accused having removal of his own pants as well as those of the victim, subjecting the victim to carnal intercourse by inserting his male organ into the victim’s anus. However, the prosecution failed to offer any cogent explanation as to why PW-4, who is the grand-mother of the victim (PW-3) maintained complete silence for 15 days despite allegedly witnessing the incident. In addition, while PW-4 claimed to have witnessed the alleged dirty act through a hole in the door but the spot panchnama (Exh. 54) does not reflect that, the door having such hole or aperture.

Considering the cross-examination of PW-2 it appears that, there was some business rivalry between the father of victim PW-3 and brother of the accused, who was assisting his brother while carrying out the business of Egg-Rice. Therefore, the possibility of falsely implication of the appellant/accused cannot be ruled out. After reassessment of prosecution evidence, it does not inspire confidence about occurrence of the incident. Nonetheless, the Forensic Expert Report Exh. 24,25,26,27 as well as Medical Examination Reports Exhs.64 and 65 do not corroborate about sexual assault with the victims PW-2 and PW-3.Therefore, in light of the settled cardinal principle of criminal jurisprudence in dubio pro reo (when in doubt, for the accused) I am of the considered view that the appellant is entitled to the benefit of doubt and is liable to be acquitted.

On 24/05/2023, the learned Additional Sessions Judge, Yavatmal passed the impugned order without appreciating and evaluation of the prosecution's evidence in the perspective manner and held guilty to the appellant, hence, the impugned judgment and order needs to be quashed and set aside. Accordingly I answer the Point Nos.1 to 4 and proceed to pass the following order:-

i] The appeal is allowed.

ii] The judgment and order dated 24/05/2023 passed by the learned Additional Sessions Judge [Special Judge, (POCSO Act)], Yavatmal in Special

(Child) Case No.99/2020 is hereby quashed and set aside.

iii] The appellant is hereby acquitted in Crime No. 354 of 2020 registered against the Appellant/Accused for the Offences punishable u/s 377 of I. P. C. and Sections 4, 6, 8 and 12 of the POCSO Act.

iv] The appellant shall be released forthwith, if not required in any other case.

v] The fees of appointed counsel to represent the respondent Nos.2 and 3 be quantified and paid as per rules.

vi] R and P be remitted back to the Trial Court.