CHANDANKUMAR UJAGAR SAHANIversusSTATE OF MAHARASHTRA AND ANR

       Digitally
       signed by
       VINA
VINA   ARVIND            Vina Khadpe                                      15.cri.appeal.179.2023(f)
ARVIND KHADPE
KHADPE Date:
       2026.03.13
       14:00:44
       +0530

                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL APPEAL NO. 179 OF 2023

                    Chandankumar Ujagar Sahani
                    Age 25 years Residing at
                    R/a :- Public toilet Build-up
                    By Bombay Post Trust,
                    Sant Sawta Marg,
                    Reay Road, Mumbai.
                    At present in Kolhapur Central Prison,
                    Kalamba, Maharashtra                                ...Appellant

                              Versus

                    1. The State of Maharashtra
                    [At the instance of Sewree Police Station]

                    2. XYZ                                              ...Respondents

                                                  __________
                    Mr. Yashpal Thakur, appointed Advocate for the Appellant through Legal
                    Aid.
                    Ms. Supriya Kak, APP for Respondent No.1- State.
                    Ms. Savvy Kolhekar, appointed advocate for Respondent No.2.
                                                  __________

                                              CORAM : SARANG V. KOTWAL &
                                                      SANDESH D. PATIL, JJ.

                                              DATE    : 04 MARCH 2026

                    JUDGMENT (PER SANDESH D. PATIL, J) :

                    1.        The present Appeal is preferred against the Judgment and Order

                    dated 30th June, 2022, passed by the learned Extra Joint Special Judge,
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under POCSO Act, 2012, Greater Mumbai in POCSO Special Case No.5

of 2020 whereby the learned Special Judge convicted the Appellant for

the commission of offence punishable under Section 376(3) of the Indian

Penal Code. The Appellant was sentenced to undergo rigorous

imprisonment for life which shall mean imprisonment for the remainder

of his natural life and to pay fine of Rs.1000/-, and in default of payment

of fine, he was sentenced to undergo further rigorous imprisonment for

two months. Accused was also convicted for commission of offence

punishable under Sections 6 and 8 of the Protection of Children From

Sexual Offences Act, 2012 (“POCSO”). However no separate punishment

was awarded as per Section 42 of the POCSO Act.



2.        The case of the prosecution is that the first informant who was

mother of the victim had lodged the F.I.R. The informant used to reside

near Reay Road Station along with her four daughters. The victim was 9

years of age at the time of incident. The complainant stated that her

daughter i.e. the victim was playing with her other sisters. The victim, had

informed one of her sisters that one of the workers of the common

washroom had removed her inner wear and had committed sexual

intercourse with her. The said sister informed the incident to the
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informant. She took the victim to the same washroom for enquiry. The

victim identified the person who had committed sexual intercourse with

her. There were other ladies who had accompanied the complainant. All

of them caught hold of the accused and started beating him. They took

the accused to the police station. The police referred the victim for

medical examination. The FIR was lodged. The same was exhibited during

trial at Exhibit “20”. The police completed the investigation. The charge

was framed against the Accused on 17th June, 2021. The prosecution, in

order to establish their case had examined six witnesses.



3.        PW-1 who is the mother of the victim had narrated in her

examination-in-chief as to how the incident had taken place. She stated

that the victim was playing along with her other sisters (daughters of

PW1). She stated that the victim told her sister as to how the accused had

committed sexual intercourse with her. Thereafter, PW-1 alongwith other

ladies, went to the common washroom and took the accused to the police

station. The FIR was lodged thereafter.

          In the cross-examination, she was asked as to whether she knew one

Sanjay Choudhari, who was the sweeper appointed in the washroom. She

stated that Sanjay Choudhari was acquainted with her family and children.
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She stated that Hasina, Sabana, Samina and Rubina were residents of the

same locality. She stated that it was not correct to say that the accused was

restraining her husband from selling drugs on discount, therefore, the

quarrel took place between her husband and the accused. She stated that it

was not correct to say Sanjay Choudhari committed sexual intercourse on

the victim.



4.        The prosecution examined PW-2 - the victim. She deposed that her

date of birth was 20th July, 2010. She stated that on the date of incident

i.e. on 5th November, 2019, she had gone to the common bathroom

situated below the bridge. She stated that the accused was present there.

She stated as to how the accused removed her inner wear and committed

sexual intercourse with her. She stated that the accused had told her not

to disclose the fact to anybody, otherwise, he would beat her. She

informed this to her sister. Her sister immediately called their mother and

narrated the incident to their mother. She stated that her mother took the

victim to the place of incident and the victim identified the accused who

had committed the act of sexual intercourse with her. She identified the

accused in the Court.

          In the cross-examination, she stated that she could not assign any
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reason as to why she did not mention in her police statement that the

accused had moved his hands on her body. She stated that she used to play

with children on the road and on that day when she was playing, she went

to the washroom. She stated that there were four to five drug addict

persons present near the washroom. She was asked whether she knew

Sanjay Choudhari to which she answered in affirmative. She was asked a

specific question as to whether Sanjay Choudhari had committed bad act

upon her; to which she answered in negative. She further stated that the

offence was committed by the accused.



5.        The prosecution examined PW-3 - Dr. Rohan Vittal Metkari, who

was the Senior Resident doctor of the hospital. He had examined the

victim. PW-3 stated that on 4th November 2019, he received a call to

examine the victim who was present in the gynaecology department. He

stated that the victim was brought for examination by WPC 112383 of

Sewree police station. He stated that there was history of sexual assault by

the accused. He further stated that he had examined the victim. The

victim was conscious, oriented and there were no injury on the body. He

stated that on examination of the genital part there was redness, multiple

fresh tear at hymenal margin reddish in colour. There was no active
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bleeding of blood or discharge. They preserved samples of blood and

vaginal swabs. The sample of blood and vaginal swabs for DNA and for

grouping were collected. Two genital swabs were collected. The victim

was advised for Counselling. The medical certificate was issued by the

doctor. The said certificate is at Exhibit 26.

          In the cross-examination, PW-3 stated that there was one lady

doctor in their team. He stated that the name of the accused was

mentioned in the history. The same was verified by the victim. He denied

that due to fungus infection, the hymen margin appeared reddish. The

injury certificate which is produced on record at Exhibit 26 corroborates

the statements made by PW-3.




6.        The prosecution in support of the case examined PW-4 - Hasina

Ansari, who was the neighbour of the complainant. She stated that the

incident had taken place on 4th November, 2019. On the date of incident,

at about 1 pm, she was coming back from the common washroom and the

victim was going to the washroom. She asked the victim where she was

going, to which the victim told her that she was going to the toilet. At that

time, the accused was sitting on the counter of the washroom. She stated


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that the mother of the victim came to her house at 5.00 pm and told her

about the incident. She enquired with the victim. The victim told her that

the accused had committed bad act with her. The mother, the victim, PW-

4 and other persons went to the washroom where the accused was

present. He was trying to run away from the spot. People caught hold of

him and he was handed over to the police. She identified the accused in

the Court.

         In the cross-examination, she stated that along with the accused, one

Sanjay was sitting on the counter. She stated that at the time of incident,

no other person was present at the spot. She did not feel it necessary to go

along with the victim towards the common toilet. She stated that the

victim is not her relative. She stated that it was not correct to say that in

order to support the case of the complainant, she is deposing falsely.



7.        The prosecution examined PW-5 Chandrakant Ahire. He stated that

on 4th November 2019, he was attached to the Sewree police station as

API. He received the case diary of CR. 172/19 for investigation. He

recorded the statements of the witnesses. He also seized the clothes of the

victim, the clothes of the accused and prepared the panchanama. He

visited the spot and prepared the panchanama. He collected the medical
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reports of the victim and the accused. He filed the chargesheet against the

accused. He stated that he could identify the accused if shown to him.

          In cross-examination, he stated that after receipt of the case diary,

he visited the spot. He stated that there were other persons employed in

the public toilet. He stated that Bablu Singh was another employee of the

public toilet. One Sanjay was also the employee of the public toilet. He

stated that he recorded the statement of the employee- Sanjay on 9 th

November, 2019. He denied that he did not send samples to CA through

one Shivaji Patil.



8.        The prosecution examined PW-6 - Sachin Dattatrey Patil. He was

attached to Sewree Police Station as PSI as Station Officer on day duty. He

stated that when the complainant came to the police station along with

the victim, she narrated about the sexual assault committed on her

daughter. He called WPC Anjana Borade and the complaint was reduced

into writing by the said WPC. He registered the printed FIR at Exhibit

21. He stated that he visited the spot shown by the complainant and the

victim, and prepared the spot panchanama which was at Exhibit 30. He

seized the clothes of the victim and prepared the seizure panchanama in

presence of the panchas. The clothes were seized under panchanama at
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Exhibit 31. They were at Article-C, Article-D and Article-E. He identified

the clothes. He sent the victim for medical examination and also sent her

before the Magistrate for recording the statement under Section 164 of

the Criminal Procedure Code.          He also sent samples to FSL Kalina

alongwith Form II. The said Form is at Exhibit 34.

          In cross-examination, he denied that Article-A was not seized from

the possession of the accused. He denied that he had prepared false

panchanama showing the bogus recovery of clothes of the victim. He

denied that the spot of incident is famous for Charas addicted people. He

denied that the statement of the victim was not recorded on 5 th

November, 2019, by WPC Anajana Borade. He stated that it was not

correct to say that he had prepared false panchanama, recorded false

statement and false documents. The FSL report is produced on record at

Exhibits 3 to 8.



9.        The statement of the accused was recorded under Section 313 of

Cr.P.C. The defence of the accused was of complete denial.



10.       The learned Special Court, after hearing the parties and after

perusing the evidence passed the impugned Judgment and Order. The
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learned Special Judge verified the original birth certificate of the victim

and came to the conclusion that the victim was of 9 years of age at the

time of incident. The learned Special Judge has recorded in the judgment

as to how the incident had taken place. The learned Special Judge came to

the conclusion that the witnesses were reliable, and that the offence has

taken place.



       Submissions of Mr. Yashpal Thakur, learned counsel for the

Appellant:-

11.    The learned counsel appearing for the Appellant submitted that the

place was crowded and that in the washroom one Sanjay Choudhari was

present. He laid specific emphasis on the fact that the said Sanjay

Choudhari was not examined. He submitted that none of the independent

witnesses are examined. He submitted that the medical certificate was not

produced properly. He asserted that the appellant has not committed the

offence. He submitted that the victim has not properly described the act

and that there is inconsistency in her evidence. He, however, submitted

that, in the event, the Court comes to the conclusion that the appellant is

guilty of the offence, the sentence is very harsh. He submitted that the

Appellant is a young person of 24 years and that it would not be proper to
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sentence the accused to rigorous imprisonment for life which would mean

imprisonment till the remainder of his natural life. He relied on the

judgment of the Apex Court in the case of Pintu Thakur and Ors Vs. State

of Chattisgarh [2025 SCC OnLine SC 1296].



       Submissions of Ms. Supriya Kak, learned APP for the State and Mr.

Savvy Kolhekar, learned counsel for the Respondent No.2:-

12.    The learned counsel for the Respondent- victim as well as the

learned APP submitted that the age of the victim at the time of the

incident is not disputed. They submitted that the medical evidence

supports the statements given by PW-1 as well as PW-2. They submitted

that the victim was medically examined on the same day. As far as the

submission of the learned counsel appearing for the Appellant that it was

Sanjay Choudhari who had committed the offence is concerned, both of

them submitted that the said suggestion was given to both PW-1 and PW-2

who have denied the same. They submitted that the incident happened in

a ladies washroom. They submitted that the act was reported on the same

day. The investigation was carried out properly. Both the counsel

supported the reasoning of the learned Special Judge. They supported the

impugned Judgment and order and submitted that the same does not
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require any interference.



Reasons and Conclusions:-

13.    We have considered these submissions. The incident in question

occurred on 4th November, 2019, at about 2.00 pm. The incident had

occurred in the ladies washroom. The incident was firstly informed by the

victim to her sister. Thereafter, the same was informed to their mother

PW-1. The first informant – PW1 thereafter, along with other persons

from the locality went to the place where the incident had taken place.

The people present there caught hold of the accused and took him to the

police station. The statement of PW-1 depicts in detail the manner in

which the incident took place. Nothing much was extracted from her in

the cross examination. As a matter of fact, PW-1 was asked whether one

Sanjay Choudhari who was working as a sweeper in the washroom had

committed the act to which PW-1 denied the same. The version of PW-1 is

in consonance with the version of PW-2 - the victim.



14.    PW-2 - the victim has stated in detail the manner in which the

incident took place. She identified the Accused. She was also given a

suggestion that it was one Sanjay Choudhari who had committed the bad
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act; to which she replied in negative. Thus, both the versions of PW-1 as

well as PW-2 corroborate with each other and the same has withstood the

test of the cross examination.



15.    PW-3 - the Medical officer has deposed the manner in which he had

conducted the medical examination on the victim. He described the injury

suffered by the victim. He had extracted the blood and vaginal swabs for

DNA and grouping. He had issued the medical certificate. Nothing much

was extracted in the cross examination and there is nothing to disbelieve

the version of PW-3.



16.    The evidence of neighbour PW-4 - Hasina Ansari also withstood the

test of the cross examination. Her version shows that it was the accused

who was confronted and that, on the same day, the victim had pointed

out that the accused had committed the act. This witness had seen the

victim going towards the washroom. She had further seen that the accused

was sitting on the counter of the washroom. Thus, the presence of the

accused at the spot of the incident was further corroborated by the

evidence of this witness.



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17.    PW-5 and PW-6 who were the police officers have also stated as to

how they had carried out the investigation. Their evidence shows as to

how the clothes were seized and sent for CA analysis. As against this, the

accused has not raised any probable defence and his only defence was of

complete denial. The medical evidence which is produced on record at

Exhibits 3 to 8, also showed that blood was sent for analysis and vaginal

swab was also sent for CA analysis. The medical certificate produced by

PW-3 which is produced at Exhibit 26 shows the manner in which the

assault had taken place. The statements of the PW1- informant and PW2-

victim herself clearly show that the incident had taken place. Both these

witnesses as well as PW-4 have identified the accused. There is no reason

to disbelieve the evidence of those witnesses. They had correctly identified

the accused. PW2 also correctly stated the manner in which the incident

had taken place.



18.    The learned Special Judge has meticulously analyzed the evidence

and has rightly reached to the conclusion that the accused has committed

the offence. There is no reason to term the Judgment of the learned

Special Judge as perverse. The finding of facts as well as the evidence are

correctly appreciated by the learned Special Court. We, therefore, do not
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find any reason to take a different view as far as the commission of the

offence by the accused is concerned.



19.    However, what draws our attention is the operative part of the

judgment whereby the accused has been sentenced to life imprisonment

meaning imprisonment for remainder of his natural life. At the time of

commission of offence, the Accused was only of 25 years of age. The age

of the accused is also not disputed. Taking into consideration, the young

age of the accused and further taking into consideration that the minimum

sentence is 20 years, which may extend to imprisonment for life which

means imprisonment for remainder of his natural life, we feel that the

sentence which is awarded in this case needs to be reduced. We are

fortified in our view by the observations of the Apex Court in the case of

Pintu Thakur and Ors Vs. State of Chattisgarh, which is relied upon by the

learned counsel for the Appellant. Paragraphs 7 to 9 of the said Judgment

are relevant which are as under :-

      “7. On a reading of the same, we find that the minimum punishment
      delineated under the said Section is twenty years but which may extend
      to imprisonment for life which shall mean imprisonment for remainder
      of natural life of the Accused and shall be liable to fine or with death.
      The Special Court has not ordered death penalty but has not
      considered any mitigating circumstance in the instant case, instead the
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      higher punishment of life imprisonment for the remainder of natural
      life of the person has been imposed which has been affirmed by the
      High Court.
      8. However, the minimum sentence Under Section 6 of the POCSO
      Act is twenty years. Bearing in mind the fact that the Appellants herein
      were in their early twenties when the incident took place and the fact
      that now they have completed only five years of incarceration and even
      for completion of the minimum sentence it would mean another fifteen
      years, we find that the Appellants are now in their mid-twenties and
      even if the minimum sentence is to be completed they would be in their
      early forties.
      9. We find that the interest of justice would be served in the instant
      case, if we reduce the sentence imposed on them from imprisonment
      for life which shall mean imprisonment for the remainder of natural life
      to twenty years.”



20.    We are therefore of the view that, the learned Special Court has

imposed a higher punishment of life imprisonment for remainder of his

natural life. Taking into consideration the age of the accused, we are

inclined to follow the view taken in the case of Pintu Thakur and Ors Vs.

State of Chattisgarh. In the present case also, the accused was arrested

immediately on the date of incident i.e. on 4 th November, 2019. He is

already in jail for more than six years. We are of the opinion that, since

the accused is now nearly 31 years of age, the minimum sentence, if

imposed would serve the interest of justice. We, are therefore, inclined to

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reduce the sentence imposed upon the accused from imprisonment for life

which is to mean imprisonment for remainder of his natural life; to that of

rigorous imprisonment for 20 years.



21.    Hence, we pass the following order:-



                                    ORDER

            (i)     The Appeal is partly allowed.



            (ii)    The Judgment and Order passed by the learned

                    Extra Joint Special Judge, under POCSO Act,

                    Greater Mumbai in POCSO Special Case No.5 of

                    2020 dated 30th June, 2022 whereby the Appellant

                    was convicted for the offence punishable under

                    Section 376(3) of the Indian Penal Code and under

                    Sections 6 and 8 of the POCSO Act, is upheld.



            (iii)   However, the sentence of rigorous imprisonment for

                    life which was till the remainder of natural life is set

                    aside. Instead, the Appellant is sentenced to undergo

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                   rigorous imprisonment for 20 years.



            (iv)   The part of the sentence passed by the learned

                   Special Court whereby the Appellant is directed to

                   pay fine of Rs.1000/-, and in default of payment of

                   fine, the accused shall undergo further rigorous

                   imprisonment for two months, is maintained.



            (v)    The accused is entitled for set off under Section 428

                   of Criminal Procedure Code.



            (vi)   The Appeal is partly allowed and disposed of in the

                   aforesaid terms.



22.    Registry is directed to send a copy of this Judgment to the Appellant

who is in prison at the earliest.




(SANDESH D. PATIL, J.)                           (SARANG V. KOTWAL, J.)




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