PARMESHWAR KACHRU BAMBARDEversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:40675


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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                  CRIMINAL APPEAL NO. 160 OF 2024

                 .     Parmeshwar Kachru Bambarde
                       Age : 37 years, Occu.: Private Service,
                       R/o. Satalpimpri, Tq.Phulambri,
                       District Aurangabad.
                       (At present serving the sentence of
                       R.I. Imprisonment)                         ….Appellant

                             Versus

                 1.    The State of Maharashtra,
                       Through Police Station MIDC,
                       Aurangabad.

                 2.    X.Y.Z.-1
                       (Complainant)

                 3.    X.Y.Z.-2
                       (Victim)                                   …..Respondents
                                                …..
                 Mr.Nikhilesh K.Tungar, Advocate for Appellant.
                 Mr.G.O.Wattamwar, APP for Respondent No.1.
                 Ms.Suvarna Zaware, Advocate for Respondent Nos.2 & 3 (Appointed).
                                               …..

                                          CORAM :        ABHAY S. WAGHWASE, J.
                                          Reserved on        : 03-09-2026
                                          Pronounced on      : 04-09-2026

                 JUDGMENT :


                 1.    Appellant, a convict for offence under Sections 376(f), 354-B,

                 323, 506 of the Indian Penal Code (IPC), under Sections 4, 6, 8, 12 of

                 the Protection of Children from Sexual Offences Act (POCSO Act),
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and under Section 75 of the Juvenile Justice Act, hereby challenges

Judgment and order dated 04-12-2023 passed by the learned Special

Judge (POCSO), Aurangabad, in Special Case (POCSO) No.325 of

2022.



              BRIEF FACTS OF THE PROSECUTION CASE

2.      Appellant was indicted and tried on accusations that, on 23-08-

2022, while informant mother away for work, her minor daughter

studying in 2nd Standard was alone in the house. Accused, who was

uncle of victim and was residing in the same house, removed clothes

clothes of victim, got himself undressed and had penetrative sexual

assault. When informant mother returned home, she noticed injury

on the lips of victim daughter and on questioning to that extent, child

disclosed the incident happened with her. Therefore, on next day,

she lodged report, resulting into registration of Crime bearing No.310

of 2022 for above offences.

        The crime was investigated by PW6 Investigating Officer, who

after gathering sufficient evidence, chargesheeted accused, who was

ultimately tried vide above numbered special case.

        At trial, prosecution has adduced evidence of as many as seven

witnesses apart from relying on documentary evidence.             After

recording statement of accused under Section 313 of the Cr.P.C., oral
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and documentary evidence was appreciated and learned trial Judge

accepted the case of prosecution for above charges. Said Judgment

and order is now challenged before this Court.



                            SUBMISSIONS

On behalf of Appellant :

3.    Learned counsel for appellant questioned the sustainability and

maintainability of impugned Judgment primarily on the ground that

there is no convincing and legally acceptable evidence on behalf of

prosecution He would submit that, though age of victim is not

disputed, accused pleaded innocence and alleges false implication by

submitting that infact there were love relations between informant

and accused and informant was interested in grabbing property,

which stood in the name of wife of accused and when such request

was not conceded, false report has been filed.      That, there is no

sufficient corroboration to the version of victim or her mother from

medical evidence. He pointed out that, going by the phrases used in

the testimony, it is doubtful whether there was penetrative sexual

assault. He would point out that, scientific evidence i.e. Chemical

Analyzer’s (CA) report belies prosecution version as neither semen

nor blood is noticed on the garments of either the victim or accused.
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4.    On the count of medical evidence, learned counsel took this

Court through Medico- legal Examination Report and would point out

that, examining Doctor has noticed that there are no injuries on the

lips of victim and therefore, he raises doubt over the version of

informant that there were burns inflicted on the lips of victim. He

then pointed out that, there was old healed tags and there are no

signs of force noticed by the examining Doctor. He would submit

that, even when alleged occurrence is of 23-08-2022 and medical

examination was on the very next day, how no resistance injuries are

noticed by the Medical Officer.         That, even no Benzidine test is

conducted while analyzing the muddemal clothes.



5.    By further questioning observations and findings of learned

trial Court, more particularly, on applicability of Sections 29 and 30

of the POCSO Act, according to him, Section 29 of the POCSO Act can

be invoked only when there is offence under Sections 3, 5, 7 and 9 of

the POCSO Act, but here, conviction is not recorded for any of the

said offences and rather, it is recorded under Sections 4, 6, 8, 12 of

the POCSO Act. According to him, further for drawing presumption

available under Section 29 of the POCSO Act, it is incumbent upon

prosecution to prove foundational facts of the case, which he would

submit that such facts are not proved in this case so as to invoke the
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same. According to him, unless testimony of the victim is credible and

trustworthy, it is not open for prosecution to take aid of presumption

available under the said Act. On this count, he seeks reliance on the

Judgment of the Hon’ble Apex Court in the case of Debraj Dutta v.

The State of West Bengal and Another passed in Criminal Appeal No.

of 2026 (@ SLP (Cri.) No.16838 of 2025 as well as Judgment of this

Court in the case of Gautam Chandrakant Khairnar v. The State of

Maharashtra, 2022 ALL MR (Cri) 2585.



6.   According to learned counsel, if there is offence of penetrative

sexual assault by a person of 42 years of age on a minor like victim,

who is said to be 6 years of age, then there has to be struggle or

injuries on the person of victim as well as accused and he would

submit that, Medical Expert, who examined accused, has not come

across any such injuries. Even he also points out that, when a person

of such age commits rape on a minor child, then definitely there has

to be injury even on the private part of the accused, but here it is

missing. Thus, according to him, it is unsafe to rely on prosecution

story about commission of penetrative sexual assault. In support on

such submission, he seeks reliance on the Judgment of the Hon’ble

Apex Court in the case of Ram Singh v. The State of Himachal

Pradesh, 2026 INSC 830.
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7.    Lastly, he submits that, case of prosecution is not proved

beyond reasonable doubt, and thus he urges to allow the appeal by

setting aside the impugned Judgment and order.



On behalf of State and Informant and Victim :

8.    Per contra, learned APP as well as learned counsel for

informant and victim, both would support impugned Judgment.

According to them, learned trial Court has rightly appreciated and

also relied on the testimony of victim and her mother, and according

to them, their testimonies having remained unshaken, deserved

credence and reliance.    According to them, testimony of victim is

finding support from medical evidence and examining Doctor having

categorically opined to that extent.   They both submit that, mere

negative scientific report would not overshadow the convincing and

legally acceptable trustworthy evidence of child victim. Reliance is

sought on the Judgment of Darbara Singh v. State of Punjab, (2012)

10 SCC 476, B.C. Deva @ Dyava v. State of Karnataka, AIR 2007 SC

(Supp) 678 and Narayanamma (Kum) v. State of Karanataka and

Others, (1994) 5 SCC 728 respectively and they urged to dismiss the

appeal for want for merits.
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       BRIEF ACCOUNT OF EVIDENCE BEFORE TRIAL COURT
                     AND ITS ANALYSIS

9.    Re-appreciated the oral and documentary evidence. PW1 is

victim, PW2 is her mother and informant, PW3 seems to be pancha to

spot panchanama, PW4 is the Head Master of the School where victim

studied.   PW5 is Gram Vikas Adhikari, PW6 is the Investigating

Officer, PW7 is the Medical Expert.



10.   In view of candid submission by learned counsel for appellant

as there is no serious challenge to the minority of the victim, evidence

of PW4 Head Master need not be re-appreciated. Here, there is both

birth certificate as well School record reflecting age of victim and

therefore, undisputedly victim is proved to be a “minor”.



11.   Now, it is to be seen whether offence as alleged is proved by

prosecution beyond reasonable doubt. On this count, as usual it is the

testimony of the PW1 victim followed by evidence of PW2 her

mother/informant and PW7 Medical Expert.

      Victim's testimony is at Exhibit 26. It is noticed that, the trial

Court by putting preliminary questions, got itself assured that by

going by age of victim, she does not understand sanctity of oath and

therefore, oath was not administered. Victim deposed that, she was
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studying in 3rd Standard and in previous year, she was in 2 nd

Standard.   That, she resided with her mother, uncle and sister.

According to her, when she was in 2 nd Standard, at that time, the

incident took place.   That, on the date of incident, she and her

uncle/accused were at home. That, her mother had been to work

whereas her sister went to attend school. She deposed that, her uncle

removed her clothes, removed his own clothes and on the pretext of

playing “Ghoda Ghoda”, she deposed that, he inserted his male organ

in her private part and moved back and forth. According to her, he

also gave burns to her lips with a matchstick and threatened her not

to inform her mother.     According to her, this happened in the

morning. In the night at around 08:00 p.m. she told about it to her

mother, who questioned her uncle, who allegedly beat her mother.

He also tied her mother in one room and made her sleep and in the

morning, they had been to Police Station.

      Child is subjected to cross-examination on the point of her

favourite subjects, her favourite teachers and her favourite games,

which she named as Running and Kho-Kho.         She denied that her

mother tutored her as to what to state in the Court or about it being

told to her in the office to state so. She denied that, she did not

inform her mother about accused removing his own clothes or about

her uncle playing “Ghoda Ghoda” with her. She denied that no such
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incident took place including denial that uncle was not residing with

them and she also denied that on 23-08-2022, she was residing with

her father. So much is the only cross-examination.



12.   Now, let us advert to the evidence of PW2 Informant and

mother of victim, which is at Exhibit 27. Admittedly, this witness has

learnt about incident from victim.      But in paragraph 3 of the

examination-in-chief, she deposed that occurrence is of 23-08-2022.

That, on that day, she had been to work in the company, and she

returned at 02.30 p.m. At that time, her younger daughter was in the

house, but victim was in the School. At around 08:00 p.m. she claims

to have noticed injury on the lips of her victim daughter and after

taking her in confidence, when she enquired, she learnt that, when

she had been for work, at that time, accused uncle removed her

clothes, removed his own clothes, put his male organ in her private

part and moved back and forth. She claims to have also learnt that,

when she was crying, she was given burns by matchstick on her lips

threatening her not to inform her mother. Therefore, she enquired

with accused, but he issued threats to her and also threatened to kill

her and as well as her daughter and therefore, she claims that, she did

not report to anyone.     On the next day, she reported it to her

superiors in the company and accompanied them to Police Station
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and lodged complaint Exhibit 28. Thereafter, on the next day, she

states that, victim was referred to medical examination and they both

went there, but as her daughter was crying and not prepared, she was

not medically examined and so they returned home. After 5-6 days,

victim daughter was taken for medical examination and she was

medically examined.

      Informant mother is also subjected to cross-examination

wherein she answered that, she studied up to 10 th Standard, she is

unable to provide any documents related to her service and any lease

agreement of house. She stated that, she was married in 2011 and her

husband did mason work, but he was addicted to liquor. She denied

any quarrel between them on such count or filing divorce petition

against him. She affirmed about service of accused at Airel Tower.

Rest is all denial.



13.   To corroborate above testimonies, prosecution has adduced

evidence of PW7 Medical Expert.         He deposed about receiving

requisition Exhibit 60 dated 03-09-2022 and after obtaining consent

of mother of victim on Exhibit 61, he testified about recording history

from mother of the victim, who told him that, the man, who is her

cousin's husband, was in relation with her.      That, on 23-08-2022

victim was assaulted at around 10:00 a.m. after removing clothes and
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having peno-vaginal intercourse and inflicting burns on the lips,

where she had small abrasion. He reported that, history was also

given of similar episode 3-4 months ago regarding molestation of

victim. In paragraph 2 of examination-in-chief, he testified that, on

Medico-legal Examination, he found tear to the hymen which was old

healed tags. There were no signs of use of force but he opined that

sexual intercourse cannot be ruled out and findings were reserved for

availability of FSL report. He identified medical examination report at

Exhibit 62. Then he deposed about gathering samples and on going

through FSL report, he answered that, there were no signs of use of

force, however, sexual intercourse cannot be ruled out.

      There is one liner cross-examination wherein he answered that,

urethral part of girls is for passing urine and he cannot say firmly

about sexual intercourse.



14.   Pointing to the above evidence, learned counsel for appellant

would submit that, PW1 victim's testimony is not credible and

secondly, medical evidence negates sexual assault as alleged.      His

principal ground is that, when a man of 42 years age inflicts

penetrative sexual assault then necessarily there has to be signs or

marks of force, resistance and struggle, but the same are missing in

medical examination report. He also relies on notings/remarks in the
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Medico-legal Examination Report.



15.   Here, from the testimony of PW1 victim and PW2 her biological

mother with whom victim is residing, it has come on record that,

accused was victim's uncle and they both resided with him. PW2

informant mother has herself deposed that, she was in relationship

with him. There is no serious challenge to stay of accused with victim

and informant. It has also come on record that, informant mother

renders labour work and she goes out for the same. Therefore, there

are reasons for victim to be alone in the house in the morning before

she went to school. Victim in her testimony has stated that accused,

her uncle, removed her clothes, and also removed his clothes and

made her play “Ghoda Ghoda” and she specially stated that, he

inserted his male organ in her urinal part and also moved back and

forth. Said incident had allegedly taken place on 23-08-2022.

      PW2 Informant, mother of victim, has deposed that, she learnt

about incident at around 08:00 p.m. in the night and on the next

day, she reported occurrence to Police i.e. on 24-08-2022. She has

also deposed that thereafter, victim were referred for medical

examination and she did take victim to the hospital, but as the child

was mentally upset and crying, no such examination could take place

that day. She has categorically stated that, after 5-6 days thereafter,
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victim was taken for medical examination. It is to be noted that,

mother of victim is a labour and so she may not be very precise of

about the date on which she has to carry child for medical

examination.

      In view of testimony of PW7 Medical Expert, medical

examination seems to have been done on 03-09-2022 i.e. after almost

09-10 days after alleged incident in question took place. Therefore, it

is thus possible that there may not be fresh injuries or fresh tear and

Doctor has noticed old healed tags. It is equally possible that the

child was not noticed to be suffering burn marks on her lips on the

date of such examination and due to laps of time, such marks cannot

be patently visible.

      Therefore, this Court does not find any force in the submission

advanced by learned counsel for appellant that there were no burn

marks or fresh injuries on the person of victim. Consequently, this

falsifies the version of accused. PW7 Medical Expert has noticed tear

to the hymen, which itself is sufficient to show that there was sexual

assault.



16.        Though victim and her mother are cross examined, there

testimonies about occurrence have virtually remained unshaken.

      Even statements of both, victim and her mother, recorded
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under Section 164 of the Cr.P.C. at exh.30 and exh.31 are consistent.



17.   Learned counsel for appellant would also strenuously submit

that scientific evidence does not support prosecution story and

therefore, narrative of prosecution about sexual assault belies and

falsifies the same.

      It is noticed that, PW7 Medical Expert has gathered necessary

samples of victim on 03-09-2022. PW6 Investigating Officer deposed

that she collected and seized clothes of both, victim and accused, vide

panchanama Exhibit Nos.35 and 36.        Samples were received from

GMCH, Aurangabad and seized clothes were sent to CA for analysis

vide communication dated 30-08-2022 Exhibit 51. Therefore, there is

a week’s delay in despatching the samples and thus, it is possible that

CA has not noticed semen or blood on the clothes of victim and

accused. Even otherwise, it is not story of prosecution that, because

of the penetrative sexual assault, there was any bleeding.



18.   Learned counsel for appellant would question the story of

prosecution on the count that, it is not possible that when a man of 42

years age sexually ravishes a child of 6 years, he may not suffer

injuries on his male organ.
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      Law is fairly settled that even slightest penetration is considered

as rape and therefore, when victim is barely six years of age and she

was all alone in the house, there may not have been resistance, more

particularly, when there are threats. Accused has no where denied

that he did not reside with victim or informant nor adduced any

evidence to that extent.

      The Hon’ble Apex Court in the case of Dola @ Dolagobinda

Pradhan and Another v. State of Odisha, (2018) 18 SCC 695, has

enumerated and summarized the principles as to when sole testimony

of prosecutrix can be relied for convicting accused. In paragraph 6,

the Hon’ble Apex Court has observed as “ It is well-settled that version

of prosecutrix is believed, basic truth in her evidence is ascertainable

and if it is found to be credible and consistent, the same would form

the basis of conviction.    Corroboration is not a sine qua non for

conviction in rape case. The evidence of victim of sexual assault

stands on par with the evidence of an injured witness and is entitled

to great weight, absence of corroboration notwithstanding. If the

evidence of the victim does not suffer from any basic infirmity and

the “probabilities factor” does not render it unworthy of credence, as

a general rule, there is no reason to insist for corroboration.”

      Law to such extent is reiterated in numerous judgment

including Judgment of Hon’ble Apex Court in the case of State of
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Himachal Pradesh v. Manga Singh (2019) 16 SCC 759 and the

relevant paragraph          for ready reference is borrowed and quoted

hereunder :



      “10. The conviction can be sustained on the sole testimony of the
      prosecutrix, if it inspires confidence.    The conviction can be based
      solely on the solitary evidence of the prosecutrix and no corroboration
      be required unless there are compelling reasons which necessitate the
      courts to insist for corroboration of her statement. Corroboration of
      the testimony of the prosecutrix is not a requirement of law, but a
      guidance of prudence under the given facts and circumstances. Minor
      contractions or small discrepancies should not be a ground for
      throwing the evidence of the prosecutrix.


      11.    It is well settled by a catena of decisions of the Supreme Court
      that corroboration is not a sine qua non for conviction in a rape case.
      If the evidence of the victim does not suffer from any basis infirmity
      and the “probabilities factor” does not render it unworthy of credence.
      As a general rule, there is no reason to insist on corroboration except
      from medical evidence. However, having regard to the circumstances
      of the case, medical evidence may not be available. In such cases,
      solitary testimony of the prosecutrix would be sufficient to base the
      conviction, if it inspires the confidence of the court.”



       Hence, in light of the evidence of PW7 Medical Officer which is

credible, above ground has not force.



19.    Perused the judgments of the Hon'ble Apex Court relied by

accused as well as prosecution and the same are on settled legal
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position of which there is no dispute. Each case has to be dealt as per

its facts and circumstances.

       Here, on complete re-appreciation of evidence on record, this

Court is of the considered view that, victim, a minor, was ravished by

accused while she was alone in the house. Mere negative CA report

will not cast shadow over victim's testimony, which has remained

unshaken. Finding no merits in the appeal, the same deserves to be

dismissed. Accordingly, following order is passed.



                                ORDER

I.    The Criminal Appeal is dismissed.


II.   Fees of the learned counsel appointed to represent respondent
      Nos.2 and 3, which is to be paid by the High Court Legal Services
      Sub-Committee, Aurangabad, is quantified at Rs.10,000/-.




                                          [ABHAY S. WAGHWASE, J.]



SPT