KISHOR ALIAS KESHYA VIJAY PAWARversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:40463


                                                                          CriAppeal-303-2025
                                                     -1-

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                  CRIMINAL APPEAL NO.303 OF 2025

                       Kishor @ Keshya Vijay Pawar
                       Age: 30 years, Occu.: Laborer,
                       R/o. Aradgaon, Tq. Rahuri,
                       Dist. Ahmednagar                                 .. Appellant

                              Versus

                 1.    The State of Maharashtra
                       Through Rahuri Police Station,
                       Tq. Rahuri, Dist. Ahmednagar.

                 2.    X. Y. Z.                                         .. Respondents

                                                     …
                 Mr. Abhinay D. Khot, Advocate for appellant (Appointed Through Legal Aid).
                 Mr. N. D. Raje, APP for respondent No.1/State.
                 Ms. Karishma S. Sarin, Advocate for respondent No.2.
                                                     ...

                                                  CORAM :         ABHAY S. WAGHWASE, J.
                                                  Reserved on : 03.09.2026
                                                  Pronounced on : 04.09.2026

                 JUDGMENT :-

                 1.    Feeling aggrieved by the judgment and order dated 13.02.2025

                 passed by the learned Special Judge, under POCSO Act, Ahmednagar

                 in Special Case No.166 of 2022 convicting appellant/accused for

                 offence under Section 363, 376, 376A, 376AB, 376(2)(i)(j) and 307

                 of Indian Penal Code as well as Section 6 of POCSO Act, convict has

                 preferred instant appeal.
                                                     CriAppeal-303-2025
                                  -2-

                     BRIEF FACTS OF THE CASE

2.    Prosecution was lodged against appellant on receipt of report

from mother of victim that on 18.06.2022, when they went in search

of victim daughter towards coconut trees, they heard victim crying

and accused was spotted without clothes near her and he was trying

to strangulate her. Accused was tried to be apprehended, but he

managed to shove and run away. Victim was spotted bleeding from

her private part. Victim reported that accused removed her clothes,

gagged her mouth and did something on her urinal place. The said

occurrence was reported to police resulting into registration of crime

bearing No.514 of 2022 for above offences. On completion of

investigation, accused was duly charge-sheeted for above crime and

trial ended up in conviction. Hence, the instant appeal.


                            SUBMISSIONS

On behalf of appellant :-

3.    Learned Counsel for the appellant would submit that there is

false implication coupled with incorrect appreciation of prosecution

evidence by the learned Trial Court. He pointed out that case of

prosecution is rested on testimony of as many as 17 witnesses, but

according to him, said testimonies are failing to inspire confidence,

more particularly, that of informant/mother, victim, victim’s sister.
                                                      CriAppeal-303-2025
                                   -3-

According to him, their testimonies are full of material omissions,

contradictions and variances and hence, unworthy of credence.


4.    At the outset, he questions the prosecution story on the point of

minority of victim, as according to him, there is no conclusive proof

on the point of age of victim. That, document relied by prosecution in

the Trial Court is mere Transfer Certificate. According to him, there is

no birth certificate so as to hold victim to be minor and to further

attract provisions of POCSO Act.


5.    He would further submit that learned Trial Court has not

followed the guidelines and principles to be maintained while

recording evidence of minor and has failed to adhered to the same.


6.    He next pointed out that admittedly informant has hearsay

information. Moreover, he questions the story of prosecution as well

as the informant’s version about having seen the occurrence near

coconut tree.    He would emphatically submit that in fact spot

panchanama does not reflect existence of any coconut tree at or near

the spot and therefore, he raises doubt over the prosecution version to

that extent.


7.    According to learned Counsel for the appellant, some witnesses

claim that there was strangulation by means of pant string, but there
                                                      CriAppeal-303-2025
                                  -4-

is recovery of saree lace. Thus, according to him case of prosecution is

rendered doubtful.


8.    Criticizing and attacking the prosecution evidence, more

particularly, medical expert, it is submitted that, said medical expert

contradicts himself on the point of noticing abrasion marks, swelling

and redness on private part, as according to him, medical papers

drawn by this witness, more particularly, column No.18, do not

disclose any injuries. Thus, according to him, such medical account

cannot be safely relied.


9.    He would question the prosecution story by pointing out that

there were no struggle or resistance mark on the person of victim or

even accused and moreover, CA reports are inconclusive.


10.   He also criticized and attacked prosecution version on the point

of seizure of clothes by pointing out that when accused was said to be

arrested on 19.06.2022 and if his clothes are shown to be seized on

20.06.2022, how panchas can be shown to be engaged on

20.06.2022, when the communication issued by Investigating Officer

was received by the office of Panchayat Samiti, Rahuri, Ahmednagar

on 22.06.2022.
                                                       CriAppeal-303-2025
                                     -5-

On behalf of APP and informant :-

11.   In answer to above, learned APP as well as learned Counsel for

informant, while justifying the conviction, submit that there is

convincing, cogent and legally acceptable evidence. According to him,

informant/mother had spotted accused indulging in the above act and

he was caught red handed. That, informant/mother has deposed to

that extent. Her testimony to that extent has remained unshaken in

spite of facing cross-examination.


12.   He   next     took   this   Court    through   the   testimony   of

informant/mother and would submit that here there was very birth

certificate of the victim on record adduced by prosecution

substantiating age of the victim and, therefore, prosecution has

proved the age of victim beyond reasonable doubt.


13.   He further took this Court through the testimony of victim,

medical expert and the findings and would submit that there is

corroboration to the testimony of victim. According to learned APP, in

the light of accusations, medical expert has noticed injuries to the

private part of the victim, of which nothings are taken in the medical

papers and there is deposition to that extent in the witness box.

Hence, according to him victim’s account received support from

medical evidence.
                                                    CriAppeal-303-2025
                                  -6-

14.   In answer to Chemical Analyzer’s (CA) report, it is submitted

that merely because CA findings are negative, trustworthy oral

account of victim and her mother cannot be washed out or rendered

doubtful. Resultantly, they justify the judgment and order of

conviction.


15.   In support of his contentions, learned APP relied on the

following decisions :-



      i)      Balwan Singh vs. State of Chattisgarh and another,
              (2019) 7 SCC 781; and

      ii)     State of Rajasthan vs. Teja Ram and others, (1999)
              3 SCC 507;

                              ANALYSIS

16.   Re-appreciated the entire evidence. Record shows that case of

prosecution is rested on as many as 17 witnesses. PW1 is the mother;

PW2 is the panch to seizure of clothes; PW3 is the sister of victim;

PW4 is the victim herself; PW5 is the doctor, who examined victim;

PW6 is the doctor, who treated siblings of victim; PW7 is the medical

expert, who examined accused; PW8 is the official from Nagar

Parishad; PW9 and PW10 are the police officials, PW11 is the medical

officer, who examined injury marks on the neck of victim; PW12 is
                                                            CriAppeal-303-2025
                                     -7-

the another medical expert; PW13 is the medical expert, who

conducted       radiological   examination   of   victim;     PW14    is   the

Gynecologist, who examined victim; PW15 is the doctor, who

conducted sonography; PW16 is the Investigating Officer, who

charge-sheeted accused and PW17 is also the police official.


17.   In view of charge of POCSO Act also, it is to be first seen

whether prosecution has proved that victim was minor or not.


18.   On analyzing the evidence, informant/mother gave date of

birth of victim as 03.08.2017. By examining PW8, birth certificate

issued by Municipality is placed on record and got exhibited. The date

over the same is also 03.08.2017. Therefore, in the light of such

evidence and further, there being no serious challenge on the

minority of the victim in cross-examination, it can safely be held that

prosecution did prove in the Trial Court that victim was below 18

years of age.


19.   Having put issue of minority to rest, it is to be further seen

whether prosecution has proved the charges beyond reasonable

doubt.


20.   Though case of prosecution is rested on as many as 17

witnesses, crucial evidence is of informant/mother, very victim, her
                                                    CriAppeal-303-2025
                                 -8-

sister and medical experts.


21.   PW4 is the victim.      Trial Court has noted the preliminary

preparations before recording testimony of victim and on getting

satisfied that she understands the sanctity of oath, thereafter,

recorded her evidence. It is noticed that learned Trial Court has made

observations on 06.06.2024 about victim to be not able to depose, to

be in frightened condition and therefore, thought it fit to give

opportunity to call her back after passage of some time and duly

recorded her evidence in question answer form on 10.10.2024.


22.   It appears that accused is confronted to the victim by showing

photographs over arrest panchanama and she identified him to be

accused “Keshamama”. After answering that he took her to coconut

tree, she answered that she was hanged by means of string,

thereafter, he removed her pants and after stating so, witness kept

mum and, therefore, her mother was called and thereafter when she

was asked what he did after removing clothes, witness displayed to

the Court her shoulders and answered that after removing the pant,

she was suffering from pain in the stomach. She again identified

accused on VC as well as the rope and clothes confronted to her.

Though above witness is cross-examined, she flatly denied that she

was falsely deposing about accused removing her pant. Above is the
                                                     CriAppeal-303-2025
                                  -9-

only cross-examination.


23.   PW1 mother, who is examined at Exhibit-24, stated that she

went with her husband to Manjri in P.H.C. with another daughter and

son and returned in afternoon. That time, her eldest daughter came

running and informed her that while victim was playing in the

courtyard, accused took her towards the coconut tree and, therefore,

she and her husband went there. While her husband was searching on

one side, she was searching on the other side and she heard cries of

her daughter. So, she went in said direction and saw her daughter in

naked condition. Even accused was without pants. Her daughter was

lying on the floor and accused was trying to throttle her. So she

claims to have ran asking accused to leave her daughter and caught

hold of him by his collar, but he pushed away and ran from the spot.

Her husband followed him. She claims to have seen injury to the neck

of victim and when they went towards daughter they saw injury on

her neck and blood oozing from her urinal place. Upon which she

asked her daughter, who told her that accused was doing something

at her urinal place and it was paining. That, he also wiped her urinal

place by her own shirt and by drawing the string of her clothes, he

tried to strangulate her. She deposed that she had seen blood on her

shirt and thereafter, she and their relatives contacted police at night
                                                    CriAppeal-303-2025
                                 -10-

time. She further deposed that police sent them to rural hospital,

Rahuri with medical yadi and so she went there, but as there was no

lady doctor, she was advised to go to civil hospital. She identified

complaint Exhibit-25 as well as clothes.


.     The informant was subjected to extensive cross-examination,

initially on the aspect of her marriage and the premises in which she

resided, which, according to the defence, belonged to the grandfather

of the accused. She denied the same, but admitted that the accused

and his relatives resided in the vicinity of her house, though at some

distance from it. Then there are questions about ailment of father of

accused. She answered that they have close relations with the

accused, who used to come to that vicinity. Then she is asked about

surroundings of the house. She stated that she did labour work, but

denied that they went out of village for the same. She denied that her

elder daughter was 16 years of age and answered that her elder

daughter look after her children in her absence. She admitted that

shouting noise is not audible from her house. About article 2 pant of

the victim, she stated that it is a jean pant, but she volunteered and

explained that as there were no buttons to it, it was tied by means of

string. Thereafter, there is denial and finally, she also denied that

there was dispute of land between accused and her uncle.
                                                     CriAppeal-303-2025
                                 -11-

24.   Prosecution has also adduced evidence of elder sister of victim

PW3 and she has deposed that on relevant day, her parents took her

younger brother and sister to hospital at Manjri on account of health

issue. Prosecution has also evidence of such treating doctor.     This

witness, who is elder sister of victim, has deposed that after her

parents left, as her sister was crying, accused came and took victim on

the pretext of offering mangoes. She deposed that when her parents

returned, she informed them about accused taking her sister and

thereafter, her parents going in search and returning with the sister,

who was naked and bleeding from the urinal place.


.     Even in her cross-examination, nothing adverse or damaging to

the prosecution is brought by defence.


25.   From above discussed evidence of victim, her mother and elder

sister of victim, it is noticed that victim has narrated the act of

accused of removing her pant and doing something, as a result of

which she experienced pain in the stomach. Victim seems to have

become shy while recording her evidence on above point and she has

chosen to remain silent for some time, however, from above discussed

evidence of her mother, who by chance, seem to have gone in search

of the minor, deposed about her daughter lying down in naked

condition, accused to be in naked condition and he is trying to
                                                   CriAppeal-303-2025
                                -12-

strangulate her and she has categorically stated about seeing injury

mark on her neck as well as blood oozing from her urinal place. She

further testified about seeing blood on the shirt of her daughter,

which her victim daughter told was used by accused to wipe blood.

Though both witnesses are cross-examined, nothing adverse or

damaging to the prosecution has been brought so as to doubt their

testimonies. Moreover, statements of both of them are also recorded

before the learned Magistrate under Section 164 of the Code of

Criminal Procedure and the same shown to be consistent on the point

of occurrence and act of the accused. CA report of clothes of victim

shows blood.


26.   The prosecution has adduced the evidence of the medical

expert, who is examined as PW5. In his evidence at Exhibit-40, after

recording the history in paragraph No.2, he deposed that the victim

was pacified by the nurse as well as her mother. Upon conducting the

external examination, he noticed a pressure abrasion mark around the

victim’s neck, which he measured as 18 cm × 0.5 cm.


.     On internal examination i.e. of vaginal parts, doctor claims to

have noticed swelling on libia majora and libia minora, hymen to be

ruptured and tear to it at 3, 6, 7 O’ Clock position with vaginal
                                                      CriAppeal-303-2025
                                  -13-

bleeding.


.     Though above medical expert is subjected to cross-examination,

initial cross-examination is on the point of guidelines of keeping lady

doctor to be present at the time of examination. He answered that

history was narrated by mother and not by police. He admitted that

swelling and redness to the libia majora is possible if finger or any

object is tried to be inserted and no history to that extent being given

by mother or about pressure abrasion mark on the neck. Further, the

witness answered that abrasion mark are possible by object like rope.

He admitted that, while returning the samples, the same were not

sealed and that no panchnama was drawn for drawing the samples.

He answered that he did not receive CA report for issuing final

opinion and that he did not give opinion about pressure abrasion

mark. He also answered that he did not mention in his opinion that

swelling and redness could be due to sexual assault. Rest is all denial.


27.   Therefore, above discussed evidence of medical expert clearly

shows that on external examination of victim, doctor has noticed

abrasion mark on the neck, which is attributable to object like rope.

Here, string was said to be used. On internal examination, doctor has

noticed hymen tear with tenderness and swelling to libia majora and

libia minora. Therefore, medical findings are consistent with the oral
                                                       CriAppeal-303-2025
                                   -14-

evidence, as mother has already deposed about blood oozing from the

urinal place (which is also confirmed from CA report).


.     Hence, in the present case, the oral account of the mother and

that of the victim indeed find support from the medical evidence.


28.   Learned Counsel for appellant would point out that according

to informant, incident had happened at a spot where there were

coconut trees, but spot panchanama to be silent on it. Mere failure to

note coconut trees in panchanama is of no significance. Moreover,

informant has deposed that she went in search of a victim towards

coconut trees and not beneath the coconut tree. Hence, said ground

has no force.


29.   The ground about failure of prosecution to prove the age is also

of no value, because, here, there is very birth certificate on record.


30.   As regards the ground about alleged discrepancy concerning

the seizure of clothes, merely because the communication issued by

the Investigating Officer was received in the office of the Panchayat

Samiti on 22.06.2022, it cannot be inferred that the panchas were not

available on 20.06.2022 or that the seizure was subsequently

fabricated. The date of receipt of the communication in the office, by

itself, does not discredit the evidence of the panchas and the
                                                     CriAppeal-303-2025
                                 -15-

Investigating Officer regarding the actual seizure. In the absence of

any material contradiction or evidence showing that the seizure was

not effected on 20.06.2022, the said discrepancy is only a procedural

irregularity and does not affect the otherwise reliable prosecution

evidence.

                          CONCLUSION


31.   Perused the judgment under challenge. Learned Trial Court has

dealt with the evidence i.e. both oral as well as documentary and has

appreciated the same in correct perspective. The reason and

conclusion drawn by learned Trial Court is the possible view that

could emerge on even re-appreciation of evidence. There being no

merits, the appeal deserves to be dismissed. Hence, the following

order is passed :-


                                ORDER


      I.     The Criminal Appeal is dismissed.


      II.    The fees of the learned Advocate for the appellant, who is

      appointed through legal aid, is quantified at Rs.10,000/-

      (Rupees Ten Thousand only), which shall be paid by the High

      Court Legal Services Sub-Committee, Aurangabad.
                                                   CriAppeal-303-2025
                                -16-

      III.   The fees of the learned Advocate appointed to represent

      the cause of respondent No.2 is quantified at Rs.10,000/-

      (Rupees Ten Thousand only), which shall be paid by the High

      Court Legal Services Sub-Committee, Aurangabad.



                                       [ABHAY S. WAGHWASE, J.]

scm