BALAJI MAHADEV WHANDEversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:38965


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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 414 OF 2025

                 Balaji s/o Madhavrao Whande,
                 Age : 31 years, Occupation : Labour,
                 R/o. Tuppa,
                 Taluka and District Nanded.                      … Appellant
                                                                  (Ori. Accused)
                       Versus
                 1.    The State of Maharashtra,
                       Through Police Station, Nanded (Gramin),
                       District Nanded.
                 2.    X – Prosecutrix                            … Respondents

                                                  …..
                 Ms. Madhuri B. Jain, Advocate for the Appellant.
                 Mr. V. V. Jahagirdar, APP for Respondent No.1-State.
                 Mr. R. K. Khandelwal, Advocate for Respondent No.2 (appointed)
                                                  .....

                                         CORAM :        ABHAY S. WAGHWASE, J.

                                         Reserved on        : 28-08-2026
                                         Pronounced on      : 29-08-2026

                 JUDGMENT :

                 1.    Appellant, a convict hereby challenges judgment and order

                 dated 23-04-2025 passed by learned Sessions Judge, Nanded in

                 Special (POCSO) Case No.154 of 2023, by which his conviction is

                 recorded for offence under Sections 4, 6, 8 of the Protection of

                 Children from Sexual Offences Act, 2012 (POCSO Act).
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                       BRIEF FACTS OF CASE

2.    Prosecution was launched against appellant on report lodged by

mother of victim, aged 28 years, that on 20-09-2023, on the pretext of

offering idol, accused took her daughter to his house, closed the door,

made her sleep, removed her undergarment and inserted his fingers

and thereafter, he licked her private part. Victim came home and

reported incident to her mother and grandmother and she was duly

taken to the Police Station, where she lodged report exh.19 resulting

into registration of crime bearing No.680 of 2023, which was duly

investigated by PW8 Investigating Officer.       After completion of

investigation, accused, who was arrested, came to be tried vide

Special (POCSO) Case No.154 of 2023 and trial culminated into

conviction. Hence, instant appeal by accused convict.


                            SUBMISSIONS

On behalf of Appellant :

3.    Learned counsel for appellant would point out that, there is

false implication. She questions prosecution story on the point of age

of victim and according to her, the same is not conclusively proved.

According to her, though birth certificate from local body is placed on

record, Gram Panchayat authority is not examined. Moreover, she

pointed out that, considering the date of birth reflected in said birth
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certificate exh.18 and going by date of its registration, according to

her, it is apparently clear that registration is shown to be done

surprisingly even prior to the very birth and therefore, she questions

the reliability of said document.


4.    Taking this Court through the victim’s evidence,          learned

counsel would submit that, witness has deposed that, she has tutored

and therefore, child testimony is unworthy of credence.


5.    Further according to her, deposition of informant mother is not

in consonance with her statement recorded under Section 183 of the

BNNS.    Further according to her, only interested witnesses are

examined and no independent witness or any neighbour is examined.

That, there are several lapses and lacune in investigation and

consequently, she submits that, learned trial Court ought not to have

accepted story of prosecution.


6.    According to her, alleged occurrence is of 20-09-2023 but spot

panchanama is drawn on 21-09-2023. That, seizure panchanama was

shown to be drawn between 11:00 a.m. to 11:30 a.m., but spot

panchanama carries time as 11:10 a.m. to 11:40 a.m., resultantly

there is overlapping of timing and therefore, it is her submission, that

Investigating Officer cannot remain present at two distinct places at
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one and the same time and so, such documentary evidence of

prosecution ought not to have been relied by learned trial Court.


7.    She next submitted that testimonies of witnesses are full of

material omissions and improvements rending the case of prosecution

story doubtful.


8.    Lastly, she submitted that, even medical evidence or scientific

evidence does not support prosecution as no signs of said act are

reflected in the medical expert’s evidence and even clothes on the

person of victim at the time of incident were not gathered.

Consequently, for above reasons, she seeks indulgence of this Court in

setting aside impugned judgment by allowing the appeal. She seeks

reliance on the judgment of the Hon’ble Supreme Court passed in

Criminal Appeal arising out of SLP (Crl) No.10377 of 2025 in the case

of Laxman Jangde v. State of Chhatisgarh through the Station House

Officer, judgment dated 04-10-2023 passed by the Hon’ble High Court

of Sikkim : Gangtok, in the case of Santa Kumar Rai v. State of

Sikkim and judgment of this Court (Nagpur Bench) passed in

Criminal Appeal No.258 of 2022 in the case of Mahadeo @ Mahadya

Uttam Gonde v. The State of Maharashtra and Another.
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On behalf of State and Victim :

9.    In answer to above, learned APP as well as learned counsel for

victim both submit that, charges against accused are cogently proved.

That, victim is proved to be a “minor” and there is reliable and

trustworthy evidence in the form of very birth certificate. That, victim

had immediately reported her mother, who also promptly lodged

complaint.     That, victim was subjected to physical and medical

examination.    That, medical expert, who noted fresh injuries, has

deposed to that extent in the learned trial court. Consequently, as

charges are duly proved, they both support the judgment and pray to

dismiss appeal for want of merits.


                              ANALYSIS

10.   Re-appreciated and meticulously analyzed the evidence.         In

support of above case of prosecution, though as many as eight

witnesses are examined, relevant evidence is that of PW2 victim, her

mother PW1 informant, PW3 medical expert, in support of

accusations and evidence on the point of age of victim as there is

offence under the provisions of the POCSO Act.

      There being offence under the provisions of POCSO Act, it is to

be seen whether prosecution has substantiated that victim was a

“minor”.
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      PW1 mother of victim, in her evidence at exh.17, stated that, at

the time of incident, her daughter was 6 years old and was studying

in 1st Standard. She tendered in the Court original birth certificate

exh.18.   PW2 Victim also deposed that, she was studying in 1st

Standard. Investigating machinery has gathered birth certificate and

the same was duly exhibited before the court as exh.18 wherein date

of birth of victim is given as 04-05-2017.

      Learned counsel for appellant questions above birth certificate

on two counts that firstly, authority, who issued it, has not examined

and secondly, there is mismatch between date of birth and date of

registration.

      Firstly, PW1 mother of victim has placed on record original

birth certificate exh.18. She is the rightful custodian of the said

document in the capacity of mother. Mere, failure of prosecution to

examine authority, who issued birth certificate, would not be

sufficient to cast doubt on the credibility of said certificate, moreover,

it is a public document and therefore, can definitely be relied when it

is submitted by very biological mother.

      As regards to second ground of challenge about mismatch

between date of birth and date of registration is concerned, as rightly

pointed out, the date of birth is 04-05-2017 but what date 19-01-2017

refer is mere registration of pregnancy. Hence, there does not seem
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to be any force in the above grounds challenging the evidence on the

point of age. On the contrary, going by any standards, victim is

definitely a “minor” following in the definition of “child” as below 18

years of age. PW1 Mother of victim and PW2 victim both speak about

victim studying in 1st standard at the time of incident. Having put

issue of age rests, let us see whether prosecution has proved other

charges by adducing cogent, convincing and legally acceptable

evidence.


11.    Here, there is conviction under Sections 4, 6 and 8 of the

POCSO Act. Sections 4, 6 and 8 are reproduced below for ready

reference :

      “4. Punishment for penetrative sexual assault.— [(1)] Whoever
      commits     penetrative    sexual   assault   shall   be   punished   with
      imprisonment of either description for a term which shall not be less
      than [ten years] but which may extend to imprisonment for life, and
      shall also be liable to fine.
      [(2) Whoever commits penetrative sexual assault on a child below
      sixteen years of age shall be punished with imprisonment for a term
      which shall not be less than twenty years, but which may extend to
      imprisonment for life, which shall mean imprisonment for the
      remainder of natural life of that person and shall also be liable to fine.
      (3) The fine imposed under sub-section (1) shall be just and
      reasonable and paid to the victim to meet the medical expenses and
      rehabilitation of such victim.]


      [6. Punishment for aggravated penetrative sexual assault.—(1)
      Whoever commits aggravated penetrative sexual assault shall be
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      punished with rigorous imprisonment for a term which shall not be
      less than twenty years, but which may extend to imprisonment for life,
      which shall mean imprisonment for the remainder of natural life of
      that person and shall also be liable to fine, or with death.
      (2) The fine imposed under sub-section (1) shall be just and
      reasonable and paid to the victim to meet the medical expenses and
      rehabilitation of such victim.]

      8. Punishment for sexual assault.—Whoever, commits sexual assault,
      shall be punished with imprisonment of either description for a term
      which shall not be less than three years but which may extend to five
      years, and shall also be liable to fine.”


12.    On this count evidence of PW2 victim is crucial. Visited the

same, which is at exh.25. In paragraph 2 of the examination-in-chief,

victim deposed that, after she returned from school, after asking her

mother where was the small Lord Ganpati idol, and hearing from her

mother that small Lord Ganpati is near big Lord Ganpati, she went

towards big Lord Ganpati. Accused, friend of her father, came there,

lifted her saying that he will give her small Ganpati and took her to

his house, initially offered her almonds, made her sleep on the cot, he

removed her undergarment. She deposed that, he inserted finger in

her private part and she shouted out of pain i.e. pains due to his nails.

She deposed that, she asked him to leave her after which accused

opened the door and she returned home and told the incident to her

mother.

       Victim is subjected to cross-examination. Only relevant cross is
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dealt here. She denied that, she gave statement to Police as per say of

her mother and her mother told her what to state. She answered

that, she signed at Police Station on the say of her mother and it was

a blank paper and over it her father and mother gives two signatures.

She gave location of house of accused to be at a little distance from

the Ganpati Temple. She answered that, she shouted when he took

her towards his house and further answered that, no person was

coming over the road that time. She is unable to give full name of

accused. She deposed that, her statement was recorded at home as

well as in Police Station that too on the same day.


13.   PW1 is the mother of PW2 victim and she in her evidence at

exh.17 deposed on the point of occurrence in paragraph 2 that, her

daughter went to school and returned home at 01:30 p.m. At around

02:00 p.m., victim went to play at the Sarvajanik Ganesh Mandal of

their village and she and her mother were doing household work.

After some time, victim returned home crying and on being enquired,

she reported that, accused picked her, took her to his house on the

pretext of giving small Ganpati idol, he closed the door of the house,

made her sleep on the cot, removed her nicker, inserted his fingers in

her private part and the nails of the accused were causing pain to her.

Victim also told that, accused licked her private part and told her not
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to inform to anyone. Therefore, they approached Police Station.

      She too has faced cross-examination wherein she answered

that, she did not witness the incident, that her daughter returned

home from school at around 01:30 p.m. She is questioned about the

distance between the Ganesh Mandal and her house, nature of the

road which goes to it, about her husband. She admitted that, no

person in village saw accused taking her daughter and she did not go

to the place of incident and that she is unable to give Gram Panchayat

House number of the place where incident took place. In paragraph

10, there is denial of all suggestions about what she learnt from her

daughter. In paragraph 11, there is cross examination on the point of

clothes and its place of purchase, questions about parents of accused

and thereafter, suggestions are put which is precisely the defence of

accused and which is denied by her that, she had given Rs.50,000/- to

accused and as accused was not returning it, there was false

implication. In paragraph 12, there are questions about acquaintances

and relations of her husband and she denied that they had

accompanied her to Police Station.

      Thus, PW1 mother’s evidence, who learnt about incident from

her victim daughter, has apparently corroborated victim’s testimony.

Nothing adverse is brought in the cross-examination so as to

disbelieve her.
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14.   Prosecution has also examined another child as PW5 who in

his evidence at exh.43 deposed that, during the festival of Lord

Ganpati, on that day at 02:00 in the afternoon, victim was standing

near Ganapti and eating oranges and at that time, he saw accused

came and take away victim to his house.

      While under cross-examination, he admitted that, he did not

inform police about there to be Ganpati festival in their lane nor he

told his parents or uncle about accused picking victim. He denied

that victim’s father told him what to depose in the Court.


15.   Prosecution has examined PW3 Dr.Sharadkumar, medical

expert at exh.32, who had occasion to examine the victim and in

paragraph 3 of examination-in-chief, he gave age of the victim, in

paragraph 4, he noted the history and deposed about surface injury

found on the person of victim. In paragraph 5, it is deposed that, on

local examination, there was redness present with minimal abrasion

near Labia Minora with hymenal injury, there was no bleeding, but

hymenal injury was old one.         Doctor’s opinion is reflected in

paragraph 6 about sexual intercourse.

      While under cross-examination, witness admitted that, he did

not conduct ossification test and admitted that bleeding can be there
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if a 35 years’ man inserts fingers forcibly into the vagina. Rest is all

denial. Medical report issued by him is identified at exh.33.



16.   I have gone through the citations relied by the learned counsel

for the appellant, however, the facts in those cases and the case in

hand are quite distinguishable.



                            CONCLUSION

17.   Therefore, on complete analysis of above evidence, here, it is

emerging that before the trial Court prosecution indeed succeeded in

proving that at the time of incident, victim was a “minor” studying in

1st Standard. There is conclusive proof on the point of age of the

victim i.e. in the form of birth certificate. Regarding commission of

offence of penetrative sexual assault, there is evidence of victim, her

mother and medical expert, which has remained intact.           Nothing

adverse has been brought before this Court to doubt their testimonies.

Defence of implication in the backdrop of money transaction is not

attempted to be probabilized.

      Consequently, findings and conclusion reached at by learned

trial Court cannot be said to be perverse so as to interfere.

Accordingly, following order is passed :
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                               ORDER

      I.    Criminal Appeal is dismissed.


      II.   Fees of the learned counsel appointed to represent
      respondent no.2, 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