PRAKASH BABURAO KADUSKARversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:37471


                                                   {1}            CrAppeal-708-2024


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 708 OF 2024

                 .      Prakash Baburao Kaduskar
                        Age: 41 years, Occu.: At present Nil,
                        R/o. Dongarwadi, Tq.Parner,
                        District Ahmednagar.                  ….Appellant
                                                              (Orig. Accused)
                               Versus

                 1.     The State of Maharashtra
                        Through Parner Police Station,
                        Ahmednagar.

                 2.     XYZ                                  …..Respondents
                                                 …..
                 Mr.Shashikant E.Shekade and Mr.Akash R.Kaware, Advocate for
                 Appellant.
                 Mr.G.O.Wattamwar, APP for Respondent No.1.
                 Ms.Smita Kasture, Advocate for Respondent No.2 (appointed).
                                                 …..

                                      CORAM : ABHAY S. WAGHWASE, J.

                                      RESERVED ON   : 19 AUGUST, 2026
                                      PRONOUNCED ON : 20 AUGUST, 2026
                 JUDGMENT :


                 1.   Appellant, a convict for offence under Sections 354, 376(2)(i)(j)

                 (n), 376(3), 506(2) of the Indian Penal Code (IPC) and under

                 Sections 4, 6, 8 of the Protection of Children from Sexual Offences

                 Act (POCSO Act), impinges judgment and order dated 06-05-2024,

                 passed by learned Extra Joint District Judge and Additional Sessions
                                 {2}            CrAppeal-708-2024


Judge, Ahmednagar, in Special Case No.194 of 2022.


                    BRIEF FACTS OF THE CASE

2.     Prosecution was launched against present appellant on

accusations that, he in the capacity of friend of father of victim/

informant and also as a neighbour, used to visit informant’s house,

offer her snacks and food packets and expressed his likes for her. He

also moved his hand over her body after offering her food packets.

He also visited the house in absence of father of informant. That, in

May, 2022, accused called her beside a lake and victim went as she

would get food packets, but there, he made her lie down and had

sexual intercourse with her. Thereafter, he asked her to come at said

spot whenever he called and threatened to kill her father, if she

informs anyone. That, out of fear, victim did not report incident to

anyone. That, on 13-07-2022, he called her again near the lake and

he raped her inspite of her resistance. This time, she returned home

and reported her parents, who took her to the Police where she

lodged report resulting into registration of Crime bearing No.602 of

2022 for above offences.

      After completion of investigation, accused was tried vide above

special case and on appreciating the oral and documentary evidence,
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learned trial Court accepted the case of prosecution as proved beyond

reasonable doubt and accordingly, convicted the accused.               Hence,

instant appeal.


                            SUBMISSIONS

On behalf of Appellant/Accused :

3.     Learned counsel for appellant would question the judgment

and order of conviction on the ground of false implication.

According to him, at the first count, prosecution was failed to prove

that victim was a “minor”. He would submit that, there is no cogent,

reliable, conclusive proof on the point of age of victim so as to attract

provisions of the POCSO Act.        He pointed out that, though girl

studied upto 10th Standard, prosecution did not examine any school

authorities and rather witness, who is a Gramsevak is examined. But

according to him, there is no proof of the very source on the basis of

which certificate is issued by Gram Panchayat. According to him, in

view of judgment of Hon’ble Apex Court in the case of Satpal Singh v.

State of Haryana, (2010) 8 SCC 714 , said certificate cannot be said

to be conclusive proof of date of birth as according to him, who gave

the exact information of date of birth has not come on record. He

pointed out that, the lady who was Arogya Sevika, who allegedly
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passed information of birth of victim, was not examined by

prosecution as a witness. He would assert that, in fact in absence of

conclusive proof of date of birth, learned trial Court ought not to

have held victim to be below 16 years of age.


4.    He next submitted that, as there is variance in the deposition

before the learned trial Court and in statement of victim before

learned Magistrate, testimony of victim is not credible and worthy of

credence.


5.    He also pointed out that, there is 18 days delay in lodging

report, which is not explained and therefore, it was fatal for

prosecution. It is his submission that, from the testimony of victim, it

is clear that she has been tutored and she accordingly deposed.


6.    Taking the Court through the operative part of the judgment,

he would submit that conviction recorded under Section 376(2)(i) is

already repealed on 21-04-2018 itself and therefore, on such count

also judgment and order of conviction cannot be allowed to be

sustained. Even according to him, there is no evidence to show that

victim was below 16 years of age.
                                  {5}            CrAppeal-708-2024


7.    Lastly, he pointed out that, prosecution failed to connect

accused with the offence as Chemical Analyzer (CA) report was not

corroborating.   On all above counts, he urges to set aside the

impugned judgment of conviction by allowing the appeal.

      In support of his submissions, learned counsel for the appellant

relied on the following Judgments of the Hon’ble Apex Court.

a)    Ravinder Singh Gorkhi v. State of U.P., (2006) 5 SCC 584.
b)    Mahadeo s/o Kerba Maske v. State of Maharashtra and
      Another, (2013) 14 SCC 637.
c)    Ashok s/o Ramlakshtra Tiwari v. State of Maharashtra, 2017
      SCC OnLine Bom.9049.
d)    Amol v. State of Maharashtra, 2022 SCC OnLine Bom.107.
e)    Prashant s/o Daulat Karwate v. State of Maharashtra, 2018
      SCC OnLine Bom.519.
f)    Sandeep Janaji Konde v. State of Maharashtra, 2015 SCC
      OnLine Bom. 6218.
g)    Dnyaneshwar Tauba Gonde v. State of Maharashtra, 2015 SCC
      OnLine Bom.4189.
h)    State of Maharashtra v. Vishnu Tulshiram Karwate and Others,
      2020 SCC OnLine Bom.3934.
i)    State of H.P. v. Jai Lal and Others, (1999) 7 SCC 280.
j)    Judgment of this Court in the case of Omkar s/o Uttareshwar
      Dhage v. State of Maharashtra passed in Criminal Appeal
      No.739 of 2018.
k)    Article on The Journey from One Cell to Another : Role of DNA
      Evidence, (2004) 8 SCC J-17.
                                  {6}            CrAppeal-708-2024


l)    Article on Practice and Procedure Relating to Proof of
      Documents, 2020 SCC OnLine Blog OpEd 34.


On behalf of Respondent No.1 State & Respondent No.2 Informant :

8.     Learned APP as well as learned counsel for informant in

answer to above submissions, would point out that, on the point of

age, evidence of PW7 is more than convincing. According to them,

PW7 is a Gram Sevak. That, he has carried certificate issued by Gram

Panchayat.   That, birth of victim taken place in a house and the

Arogya Sevika, who is appointed by the Government, has also

appended signature over the certificate and therefore, she was source

of information about date of birth and therefore, prosecution has

proved the age of the victim by leading cogent, convincing and

legally acceptable evidence. On this count, they seeks reliance on the

judgments of Hon’ble Apex Court in the case Bharwada Bhoginbhai

Hirjibhai v. State of Gujarat, AIR 1983 SC 753; Harpal Singh and

Another v. State of H.P., AIR 1981 SC 361 and judgment of this Court

in the case of Dada Laxman Gaikwad v. State of Maharashtra, 2018

(3) Mh.L.J. (Cri) 586.


9.    It is further submitted that, victim herself is informant and her

evidence, which is convincing and cogent, has remained intact and
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unshaken.     That, in the learned trial Court itself, defence has

admitted medical evidence and therefore, there is no challenge to the

medical findings on examination of victim.

      For all above reasons, they both support the judgment and

order of conviction and pray to dismiss the appeal for want of merits.


            BRIEF ACCOUNT OF EVIDENCE IN TRIAL COURT

10.   In support of its case, prosecution has adduced evidence of in

all seven witnesses. The sum and substance of their evidence is as

under :

      PW1 Victim, who herself is informant, has deposed at exh.37

initially by giving her date of birth as 16-09-2006 and she further

stated that, in March 2022 i.e. at the time of incident, she was 15

years and 9 months old.       After stating about occupation of her

parents, she deposed that, she knew accused, who was her father’s

friend and who used to visit their house. She stated that, he used to

carry food packets for her and also used to feed her but at such time,

he used to move his hand on her body and would say that he loves

her and likes her. According to her, one day in March 2022, he called

her beside a lake in the evening and when she went there, he again

said that he liked her very much, pulled her close to him, forcibly
                                  {8}             CrAppeal-708-2024


hugged her and kissed her on cheeks and lips. She deposed that, she

tried to push him away, but he forcibly had sex with her by pressing

her mouth and when she questioned him, he allegedly said that he

loved her. That, he also threatened her to not to disclose the incident

to her parents or else he would kill them and therefore, she claims

that she did not disclose to her family. She deposed that, he used to

take rounds to her house and make gestures to her to come near lake

and due to fear, she used to go there and always he had sex with her

against her wish. That, on 13-07-2022 also he had forcible sex with

her after calling her to lake and so due to repeated acts, she disclosed

the incident to her parents. She deposed about lodging complaint

exh.38 and also assigned reasons for delay by stating that, the delay

was for the reason that she herself was under fear and her parents

were also under shock and fear.

      While under cross-examination she is unable to state the exact

date when she met accused first time. She denied any discussion

taking place between her parents and villagers about lodging

complaint. She answered that, after 10th Standard, she did not take

education and she also answered that she was not knowing what is

good and what is bad at that time.        She admitted that, prior to

lodging complaint, she did not inform her parents nor disclose them
                                     {9}         CrAppeal-708-2024


about he providing her food packets at their house and moving his

hand on her person nor she informed about she being called at the

lake. In further cross-examination, she gave distance between her

house and lake and she also gave its location and its surroundings.

She admitted not reporting about threats. She admitted that, at the

spot, there is hard surface. She also admitted that, when accused felt

his hand over her body and had sex, she did not shout for help. She

answered that, on the date of incident in March 2022, as she

returned at 08.30 p.m., her parents questioned her. In further cross-

examination, she answered that, accused used to talk with her on

mobile, which he gifted her, but parents had no knowledge about it.

She admitted that, on 13-07-2022, her parents caught-hold of her

while talking on phone with accused and questioned her about the

mobile and on 14-07-2022, she informed that, it was gifted by

accused and she admitted that, her parents disliked her talks with

accused on mobile.      She admitted that Police took mobile during

investigation. Rest is all denial.


11.   PW2 is the father of the victim, who gave date of birth of his

daughter and about she taking education upto 10 th Standard.

According to him, on 13-07-2022, finding her daughter crying, he
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asked her and claims to have learnt from her that accused used to

bring food packets for her, used to touch her body, expressed his

liking for her, grooped her, and on 13-07-2022 calling her beside the

lake and having forcible sex with her followed by threats to kill her

parents and to not to inform anyone. He also deposed that, after

hearing his daughter, they were in shock and fear, but subsequently

they went to Police Station and his daughter filed complaint.

      While under cross-examination only there are questions about

his daily work, about place of birth of his daughter in the house, her

education and about not informing about the incident to anyone in

the village.


12.   PW3 Yogesh Gagre is the pancha to seizure of clothes of

informant. He identified seizure panchanama at exh.44.


13.   PW4 Sudam Vishnu Gajre is pancha to seizure of clothes of

accused. He identified seizure panchanama at exh.48.


14.   PW5 Dr.Akshay Kailas Zine is the Medical Expert, who deposed

about examination of accused and obtaining samples. According to

him, he did not notice external and internal injuries and therefore, he

reserved opinion for want of Chemical Analyzer (CA) report.
                                  {11}              CrAppeal-708-2024


15.   PW6 Pramod Wagh (API) is the Investigating Officer, who

narrated all the steps taken by him during investigation after

registration of crime.


16.   PW7 Vishal Zaware is the Gramsevak, who placed on record

documents at exh.70 and exh.71.


                              ANALYSIS

17.   In view of charge under the POCSO Act and in view of claim of

prosecution that victim was a “minor” i.e. under 18 years of age, it is

to be seen whether prosecution has discharged its burden in proving

minority of victim so as to gravitate charges under the POCSO Act.


18.   Here, PW1 victim herself is informant and in the opening

paragraph of her testimony at exh.37, victim gave her date of birth as

16-09-2006 and place of birth as Palaspur.

      PW2 father of victim also in his examination-in-chief at exh.41

gave date of birth of his daughter as 16-09-2006.

      That apart, prosecution has adduced evidence of PW7 Zaware,

who was a Gramsevak of village Palaspur Gram Panchayat at relevant

time and his evidence is at exh.69. As age determination is crucial

factor, his entire evidence before the trial Court is reproduced which
                                   {12}            CrAppeal-708-2024


is as under :

         “He deposed that, he was carrying birth record as per Court

summons and he deposed that, on 17-09-2006 information of

victim’s birth was received by his office i.e. information sent by

Arogya Sevika of Sub-center Hospital. He gave name of the parents

of the victim and their address and deposed that, birth date of the

victim was 16-09-2006 and birth place was Palaspur and it was duly

recorded in the year 2006 in the register and he placed on record

certified copy of extract of said register, which he identified to be at

exh.70 and also identified birth certificate exh.71 produced on its

basis.

         Above witness is subjected to cross-examination by learned

defence counsel wherein he answered that as per birth report exh.70,

place of birth is shown as home. He admitted that, the place where

informant’s signature is shown, there was no signature and it was

merely stated as Arogya Sevika. He admitted that, name of informant

is also not mentioned. He is unable to state who was the Gramsevak

who noted the entry in the register and unable to state whether after

receipt of information of birth date, their office verified it.        He

admitted that, if birth takes place in hospital and hospital record is

received by their office then it is considered as 100% correct.
                                  {13}            CrAppeal-708-2024


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

would question credibility of above oral evidence as well as

documentary evidence at exh.70 and 71. He put-forth a case that,

firstly, victim’s birth has taken place in a house, secondly, above

witness has admitted that, there is no name of the informant, who

gave information to Gram Panchayat and thirdly, said official Arogya

Sevika, whose mere signature is appended, is not examined as a

witness.


20.   In the light of above submissions, it is pertinent to note that,

firstly, PW7 is Gramsevak of village Palaspur. Both informant victim

and her father have given birth place as house in Palaspur. The then

Arogya Sevika, who is appointed by the Government, has apparently

passed information to the Gram Panchayat office and on its basis,

entries are taken in the register of birth. Certified copy of relevant

record of register is at exh.70 and is got proved through PW7

Gramsevak. On the basis of said information in the register, as usual,

birth certificate exh.71 has been issued by Gram Panchayat.

Therefore, there is a public document coming from the custody of

public servant and in view of Section 35 of the Indian Evidence Act,

the document as is coming from custody of public office i.e. Gram
                                  {14}            CrAppeal-708-2024


Panchayat, it indeed carries probative value.        Mere failure of

prosecution to examine the relevant Arogya Sevika at that point of

time is itself not a good ground to doubt the veracity of the

documents at exh.70 and 71, which are maintained in the official

capacity by a public servant.

      Resultantly, in the considered opinion of this Court, the above

objection and ground raised by learned counsel for appellant, has no

substance. On the contrary, from the evidence of informant herself,

her age has come as 15 years and 9 months old. Going by the date of

occurrence i.e. in March, 2022 and going by date of birth, apparently

victim is few months short of 16 years and as such, thus, below 16

years of age and indeed a “minor”.


21.   Now, as regards to offences is concerned, again one has to fall

back on the testimony of victim, which is also reproduced in

aforesaid paragraphs.    After, naming accused to be friend of her

father and he visiting her house and carrying food and snacks packets

for her, she has deposed that, he used to say that he loves her and

likes her, he used to move his hand over her head, back as well as

chest, which is a private part. She has stated that, on one day in the

month of March 2022, he called her besides the lake and when she
                                  {15}            CrAppeal-708-2024


went and questioned him for calling, she deposed that, he again

expressed his liking of her, pulled her closer to him, kissed her at

cheeks and lips. She deposed that, she tried to push him away but he

forcibly hugged her and by pressing her mouth, he had sexual

relation with her. She has used the word “forcible sex” suggesting

her resistance. She deposed about being threatened also. She claims

that, due to fear of threat, she used to go whenever he called her

besides the lake and finally, on 13-07-2022 when he again had

repeated the act of forcibly having sex with her, after returning home

she reported her parents. She has specifically stated about forcible

sexual relations suggesting her to be not a consenting party.

Moreover, in her cross-examination, more particularly in paragraph 6

she answered that she did not knew what is good and what is bad at

that time. The manner of questioning in paragraph Nos.8 and 9 and

the nature of suggestions put-forth leaves no manner of doubt that

there is no serious cross-examination, rather occurrence is got proved

in cross-examination also.


22.    Medico-Legal Examination Report of victim is admitted by

accused in trial Court itself, which carries history of sexual assault

2-3 times and recent incident to be of 13-07-2022.
                                  {16}             CrAppeal-708-2024


23.   As stated above, in the trial Court, defence has admitted the

medical evidence i.e. Medico-Legal Examination Report of Sexual

Violence and therefore, prosecution seems to have not examined the

Medical Expert, who had occasion to physically examine the victim.

      Even in view of decision of the Hon’ble Apex Court in the

following cases, when evidence of victim inspires confidence,

corroboration from other corners need not be insisted for.

      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
                                          {17}                   CrAppeal-708-2024


reason to insist for corroboration.”

       Law to such extent is reiterated in numerous judgments

including Judgment of Hon’ble Apex Court in the case of State of

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.”


24.    Much thrust is laid by learned counsel for appellant on the

point of delayed reporting.              Admittedly, last occurrence is of

13-07-2022 and FIR by PW1 victim is of 01-08-2022 and as such,
                                      {18}               CrAppeal-708-2024


there is delay of 18 days.          However, in her testimony itself in

examination-in-chief, victim has supplied reasons for the delay by

stating that as she herself was under fear and even as her parents

were under shock and fear, there is delay. Thus, here there is reason

assigned for delayed reporting.           Even otherwise, in cases of such

nature, delay if any, is insignificant and it is fairly settled position on

this ground.


25.   Another ground raised in appeal is that, there is no convincing

evidence that victim was below 16 years of age and moreover,

learned trial Court has recorded conviction under Section 376(2)(i)

of the IPC, which is already repealed.

      It is true that, Section 376(2)(i) of the IPC is repealed since 21-

04-2018, however, here, there was also charge of Section 376(3) of

the IPC and conviction is also recorded for the same. Therefore, for

such reason also, there is no merit in the submission that there is

illegality committed by the trial Court while convicting the accused

under said Section.


26.   The      facts   in   the   cases    cited   by   the   appellant,     are

distinguishable with the case in hand and therefore, cannot be

relied.
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                              SUMMATION

27.   To sum up, sole testimony of victim as is inspiring confidence

and when her evidence is found to be of sterling quality, there is no

need for further corroboration. There is cogent, reliable and

overwhelming clinching evidence on the point of her minority. Victim

has narrated the acts of accused of outraging her modesty and has

deposed about she being forcibly ravished couple of times. Therefore,

necessary ingredients for attracting offence under Section 376(3) of

the IPC are indeed available.

      No perversity or illegality being shown in the impugned

judgment, the appeal deserves to be dismissed.            Accordingly,

following order is passed :



                                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/- (Rs.Ten
Thousand only).


                                        ( ABHAY S. WAGHWASE )
                                                JUDGE
SPT