Amol Jayram Landge vs The State Of Maharashtra And Another

2026:BHC-AUG:18109
Judgment in Cri. Appeal Nos.98-22 & 818-25
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.98 OF 2022
Amol s/o Jayram Landge,
Age : 19 years, Occu.: Labour,
R/o Tq. Kalamnuri, Dist. Hingoli Appellant
VERSUS
1. The State of Maharashtra
2. XYZ Respondents
….
Mr. Dhanraj S. Ingole, Advocate for the Appellant (Appointed).
Mr. S. P. Sonpawale, APP for Respondent No.1- State
Mr. A. S. Usmanpurkar, Advocate for Respondent No.2 (Appointed)
….
WITH
CRIMINAL APPEAL NO.818 OF 2025
The State of Maharashtra Appellant
VERSUS
1. Amol s/o Jayram Landge,
Age : 19 yrs,, Occu.: labour
R/o Annabhau Sathe Nagar,
Kalamnuri, Dist. Hingoli.
2. XYZ Respondents
….
Mr. S. P. Sonpawale, APP for the Appellant-State
Mr. Dhanraj S. Ingole, Advocate for Respondent No.1 (appointed).
Mr. A.S. Usmanpurkar, Advocate for respondent No.2 (Appointed).
….

Judgment in Cri. Appeal Nos.98-22 & 818-25
(2)
CORAM : SANDIPKUMAR C. MORE AND
ABASAHEB D. SHINDE, JJ.
RESERVED ON : 22.01.2026
PRONOUNCED ON : 21.04.2026

JUDGMENT : ( PER SANDIPKUMAR C. MORE, J.)
1. The appellant, Amol Jayram Landge, the original accused in
Special Case (POCSO) No. 34 of 2019, has filed Criminal Appeal No.
98 of 2022 challenging his conviction recorded by the learned
Special Judge and Additional Sessions Judge-2, Hingoli
(hereinafter referred to as “the learned trial Judge” ) under judgment
and order dated 17/01/2022 for the offences punishable under
Section 6 of the Protection of Children from Sexual Offences Act,
2012 (hereinafter referred to as “the POCSO Act” ) and also under
Sections 376(2)(i), 376(2)(n), 366-A and 363 of the Indian Penal
Code. The appellant-accused has been sentenced by the learned
trial Judge as under:
i) The accused is hereby convicted for the offence
under Section 6 of the POCSO Act vdie section
235(2) of the Code of Criminal Procedure and
sentenced to suffer rigorous imprisonment for 10
years and fine of Rs.2000/-. In default of payment

Judgment in Cri. Appeal Nos.98-22 & 818-25
(3)
of fine, he shall suffer rigorous imprisonment for 6
months.
ii) The accused is convicted for the offence punishable
under Section 376(2)(i) of the IPC, vide Section
235(2) of the Code of Criminal Procedure and
sentenced for rigorous imprisonment for 10 years
and fine of Rs.2000/-. In default of payment of
fine, the accused shall suffer rigorous
imprisonment for 6 months.
iii) The accused is convicted for the offence punishable
under Section 376(2)(n) of the IPC, vide Section
235(2) of the Code of Criminal Procedure and
sentenced for rigorous imprisonment for 10 years
and fine of Rs.2000/-. In default of payment of
fine, the accused shall suffer rigorous
imprisonment for 6 months.
iv) The accused is convicted for the offence punishable
under Section 366-A and 363 of the IPC, vide
Section 235(2) of the Code of Criminal Procedure
and sentenced for rigorous imprisonment for 7
years and fine of Rs.1000/-. In default of payment
of fine, the accused shall suffer rigorous
imprisonment for 7 months.
v) All sentence shall run concurrently.
2. On the other hand, Criminal Appeal No. 818 of 2025 has
been preferred by the appellant–State against the same judgment

Judgment in Cri. Appeal Nos.98-22 & 818-25
(4)
and order seeking enhancement of the sentence of imprisonment
imposed upon the accused. Since both these appeals are directed
against the same judgment and order; one seeking setting aside of
the conviction and the other seeking enhancement of the sentence,
we have taken up both the appeals for disposal by this common
judgment.
3. Background facts leading to the appeals:
The informant Subhadrabai is the maternal grandmother of
the victim. After the death of the victim’s mother, the victim and
her sister were residing with the informant. At the time of the
incident, the victim was studying in the 8th standard. The accused
used to wander in the lane of the informant and on earlier
occasions, the informant had made inquiries with him for the
same.
On 24/10/2019, the informant had gone out for labor work
and returned at approximately 6:30 p.m. The elder sister of the
victim informed her that the victim was missing since noon. The
informant then searched for the victim in the nearby area and also
at the house of the victim’s maternal uncle. They even visited the
house of the accused, but the victim was not found there.

Judgment in Cri. Appeal Nos.98-22 & 818-25
(5)
Consequently, the informant was compelled to lodge a report with
the Kalamnuri Police Station.
The police initially registered the crime under Section 363 of
the IPC. During the investigation, the police recovered both the
victim and the accused from the house of a relative of the accused
at Pimpalgaon. Both were brought to Kalamnuri Police Station,
where the victim narrated how the accused had committed forcible
sexual intercourse with her under the promise of marriage.
Subsequently, offences under Section 376 of the IPC and the
provisions of the POCSO Act were added. After completing the
investigation, the investigating officer submitted a charge sheet
against the accused for offences punishable under Sections 6 and
12 of the POCSO Act, as well as Sections 363, 366-A, 376(2)(i), and
376(2)(n) of the IPC.
The learned trial judge conducted the trial and ultimately
convicted the accused under the aforementioned sections. Hence,
this appeal has been filed.
4. Learned counsel, Mr. Ingole, appearing for the appellant –
accused, submits that although the victim was approximately 13
years and 4 months old at the time of the incident, her evidence is
contrary to the medical evidence on record. According to him,

Judgment in Cri. Appeal Nos.98-22 & 818-25
(6)
though the victim alleged that the accused committed sexual
intercourse with her, the medical officer, Dr. Deepmala
Bhalchandra Patil (PW-7), deposed that the hymen of the victim
was found intact. Further, the learned counsel for the appellant –
accused also pointed out that the Chemical Analysis (CA) Report
does not support the prosecution case, as it did not reveal anything
suggestive of sexual intercourse with the victim. According to him,
since the medical evidence on record does not indicate the
commission of sexual intercourse, at most, the appellant can only
be convicted for an offense under Section 7 of the POCSO Act.
For that purpose he has relied on following judgments.
A) Prakash vs. State of Maharashtra, 2021 4
MhLJ(Cri) 700 &
B) Kishor Shankar Palve vs. The State of
Maharashtra, through the Police Inspector, Nagar
Taluka Police Station, Ahmednagar, 2023
ALLMR(Cri) 3901;
C) Criminal Appeal No.388 of 2024 ( Ravindra
Mohan Koparge vs. State of Maharashtra),
delivered on 01/04/2025;
D) Praksh vs. State of Maharashtra, 2021 4
MhLJ(Cri) 700 &
E) Suresh Angloswami Naidu vs. State of
Maharashtra, 2020 Supreme(Bom) 961.
5. On the contrary, the learned APP strongly opposed the
submissions made on behalf of the accused – appellant. According
to him, the learned trial court has not imposed an appropriate

Judgment in Cri. Appeal Nos.98-22 & 818-25
(7)
sentence of imprisonment on the accused – appellant. He pointed
out that the provisions of Section 376 of the IPC, under which the
accused was convicted, were amended on 21/04/2018, whereby
Clause 2 (i) was omitted and Sub-Section (3) was added, providing
that the minimum punishment for rape of a woman below sixteen
years of age shall not be less than twenty years, which may extend
to life imprisonment. He further submitted that under Section 6 of
the POCSO Act, the same minimum sentence of not less than
twenty years was prescribed by the amendment effective from
16/08/2019. He emphasized that the incident in the instant case
took place on 24/10/2019, i.e., after both these amendments.
Therefore, the learned trial judge should have imposed rigorous
imprisonment on the accused for a period of not less than twenty
years. Accordingly, he prayed for the dismissal of the appeal filed
by the accused and for the enhancement of the sentence of
imprisonment. He has also relied upon the following judgments:
A) Pradip vs. The State of Maharashtra,
MANU/MH/4203/2022 &
B) Judgment of the Hon’ble Apex Court in case of
Sachin vs. State of Maharashtra, arising out of
SLP (Cri.) Nos.4795-4797 of 2025.
6. With the able assistance of the learned counsel for the
accused as well as the learned APP, we have carefully perused the

Judgment in Cri. Appeal Nos.98-22 & 818-25
(8)
entire evidence on record along with the proceedings and records of
the original case.
7. So far as Criminal Appeal No.818 of 2025 filed by the
appellant-State is concerned, it is for enhancement of the sentence
of imprisonment imposed upon the appellant/accused. Admittedly,
the appellant/accused had been held guilt for the offence under
Sections 363 and 366-A of I.P.C. and sentenced to suffer 7 years
rigorous imprisonment alongwith fine. Likewise, he has also been
convicted under Section 376 (2) (i) and 376 (2) (n) of I.P.C. and
sentenced to suffer rigorous imprisonment of 10 years alongwith
fine. Accused is also convicted under Section 6 of POCSO Act and
sentenced to suffer rigorous imprisonment for 10 years alongwith
fine. For the punishment under Sections 363 and 366-A of I.P.C.
the State has not raised any objection that it being insufficient, but
so far as imprisonment for the offence under Section 376 of I.P.C.
and under Section 6 of POCSO Act is concerned, the State is
claiming that the learned trial Judge ignored the provisions to the
extent of sentencing the accused and despite there being provision
of minimum imprisonment of 20 years, he was sentenced to suffer
lessor imprisonment for 10 years.

Judgment in Cri. Appeal Nos.98-22 & 818-25
(9)
8. Admittedly, the incident took place on 24/10/2019, but prior
to that there was amendment in Section 376 of I.P.C. w.e.f.
21/04/2018 whereby Section 376 (2) (i) was deleted and in that
place Section 376 (3) was introduced. Though for the offence under
Section 376 (2) (n) of I.P.C. the minimum imprisonment of 10 years
remained as it is, but under Section 376 (3) effective from
21/04/2018, the minimum imprisonment of 20 years was provided.
We would like to reproduce Section 376 (3) of I.P.C. for quick
reference herein-below.
“(3) Whoever, commits rape on a woman under sixteen
years of age shall be 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
that person's natural life, and shall also be liable to fine” :
Thus, the learned A.P.P. submits that the learned trial Judge
should have convicted the appellant/accused for the offence under
Section 376 (3) of I.P.C. for 20 years and not for 10 years.
Admittedly, considering the date of incident being 24/10/2019,
Section 376 (2) (i) of I.P.C. was not in existence, being already
deleted. Therefore, apparently the conviction under that section by
the learned trial Judge appears illegal. However, though such

Judgment in Cri. Appeal Nos.98-22 & 818-25
(10)
conviction was illegal, but under sub-section (3) of Section 376 of
I.P.C. which replaced the earlier Section 376 (2) (i), was very much
effective at the time of incident, and therefore, without being the
charge altered, the learned trial Judge could have awarded
imprisonment for the period of 20 years to the appellant/accused
under Section 376 (3) of I.P.C.
9. Same is the case with conviction under Section 6 of POCSO
Act which had undergone substitution by Amendment Act 25 of
2019. Under the unamended Section 6 of the POCSO Act, there
was punishment of rigorous imprisonment for a term which shall
not be less than 10 years, but which may extend to imprisonment
for life alongwith fine. However, as per the amended Act which
came into force from 16/08/2019, stricter punishment was
introduced for the offence under Section 6 and the punishment
provided now is rigorous imprisonment for a term which shall not
be less than 20 years, but it may extend to imprisonment of life
which shall mean imprisonment for the remainder of natural life of
that person, alongwith fine. Thus, considering the date of incident
i.e. 24/10/2019, it appears that the learned trial Judge acted
contrary to the amended Section 6 of the POCSO Act and granted
lessor punishment of 10 years than the applicable punishment of

Judgment in Cri. Appeal Nos.98-22 & 818-25
(11)
imprisonment of 20 years at the relevant time. Therefore, we find
the submission of learned A.P.P. that the learned trial Judge
should have imposed punishment upon the appellant/accused for
a term not less than 20 years, quite reasonable and in consonance
with the amendments in I.P.C. as well as POCSO Act, as mentioned
above.
10. However, the learned counsel for the appellant in appeal
against conviction, has vehemently argued that no such offence of
rape or offence under Section 6 of POCSO Act has been established
by the prosecution beyond reasonable doubt, since there is
complete absence of medical evidence in this matter as regards
sexual intercourse with the victim girl by the accused. He pointed
out that though the victim girl stated about such forcible sexual
intercourse by the accused with her, but she had also admitted
that she was having love affair with the accused, and therefore, on
her own she might have gone with the appellant/accused. Learned
counsel for the appellant/accused further submits that even the
medical evidence and scientific evidence is silent on the aspect of
committing forcible sexual intercourse, and therefore, the
prosecution could not establish the ingredients of offence of rape
under I.P.C. as well as offence of aggravated penetrative sexual

Judgment in Cri. Appeal Nos.98-22 & 818-25
(12)
assault under Section 6 of POCSO Act. Though the learned
counsel for the appellant/accused prayed for clear-cut acquittal of
the appellant, but in the alternative he suggested that in view of
absence of medial or scientific evidence, the appellant/accused, at
the most, can be held guilty under Section 7 of the POCSO Act
which provides imprisonment which shall not be less thatn 3 years,
but may extend to 5 years, alongwith fine as per Section 8 of
POCSO Act. Therefore, in the light of submissions made by
learned counsel for the appellant/accused as well as learned APP,
we are of the opinion that if the appellant/accused succeeds, then
the appeal filed by State for enhancement of sentence, shall
definitely fail. On the contrary, if the appeal of appellant/accused
is dismissed, then the State will definitely succeed and the
appellant/ accused can be convicted for rigorous imprisonment not
less than 20 years. Under such circumstances, we have to
scrutinize the entire evidence minutely to ascertain whether the
appellant / accused is guilty for the offences under Sections 376(2)
(n) and 376 (3) of I.P.C. as well as Section 6 of the POCSO Act.
11. The prosecution has examined in all 14 witnesses in this
matter and on going through the impugned judgment, it appears
that the learned trial Judge has observed that though there was no

Judgment in Cri. Appeal Nos.98-22 & 818-25
(13)
presence of semen on the private part of the victim and her hymen
found intact, but the testimony of victim inspired confidence, and
therefore, the offence was proved. The learned trial Judge also
held that the victim was below the age of 16 years, and therefore,
even if it is presumed that she had consented, then also her
consent was immaterial which would give no benefit to the
accused. So far as age of the victim at the time of incident is
concerned, it is claimed by the prosecution that she was 13 years
old at the relevant time. The documentary evidence to that effect
i.e. birth certificate of the victim at Exh. 56 and her school extract
at Exh.34 has clearly indicated her date of birth as 27/05/2006.
Moreover, the evidence of PW-1 i.e. grandmother of the victim as
well as PW-5 who is the sister of victim, is consistent on the fact
th
that the victim, at the time of incident, was in 8 Standard and
around 13 years old. Not only this, but the victim herself had also
stated so. It is significant to note that the aforesaid birth
certificate (Exh.56) was produced by PW-10 Devratan who is the
Office Superintendent of Municipal Council. Moreover, the school
extract (Exh.34) has also indicated that the victim was studying in
th
8 Standard at the relevant time. Therefore, no further proof
regarding the age of victim is required and the finding of learned

Judgment in Cri. Appeal Nos.98-22 & 818-25
(14)
trial Judge that the victim was below 16 years at the time of
incident, appears quite reasonable and conclusive.
12. So far as offence under Sections 363 and 366-A of I.P.C. is
concerned, though the victim admitted that she was in love with
accused, but admittedly due to her age being of 13 years, it cannot
be held that there was no forcible act of the appellant while taking
her away and it was a case of mutual consent and adolescent love.
Therefore, the observation of learned trial Judge holding the
appellant/accused guilty under both these sections, is definitely
proper. Therefore, the main question before us in these appeals is,
whether the prosecution has succeeded in proving the act of the
appellant/accused of committing forcible sexual intercourse with
the victim.
13. So far as conviction of the appellant/accused under Section
376 (2) (i) of I.P.C. as well as under Section 6 of POCSO Act is
concerned, the learned trial Judge has based it on two things.
First, the testimony of victim girl i.e. PW-11 was reliable and she
being under the age of 16 years, her consent was immaterial.
Therefore, even though there was lack of semen in C.A. report and
absence of injuries on the person of victim girl, it was treated not
fatal to the prosecution case. Secondly, the learned trial Judge

Judgment in Cri. Appeal Nos.98-22 & 818-25
(15)
treated the statement made by the appellant/accused to Medical
Officer at the time of his medical examination about disclosure of
his physical relationship with the victim girl at the time of incident,
as reliable. So far as victim’s testimony viz-a-viz report of her
medical examination is concerned, we will discuss it subsequent to
the second thing i.e. statement of appellant/accused before the
Medical Officer.
14. Admittedly, in the evidence of PW-8 Dr. Abhijit Bangar it has
come on record that the appellant/accused was capable of doing
sexual intercourse. There is no dispute about the same. However,
PW-8 Dr. Bangar has specifically stated that the
appellant/accused, while giving history, had made a statement and
thereby admitted his sexual intercourse with the victim girl on
02/10/2019 and 26/10/2019. This fact is also evident from the
report of medical examination of appellant/accused at Exh.50
wherein, in the column of history as stated by accused, it is
mentioned that he had committed sexual intercourse with the
victim on 02/10/2019 and 26/10/2019. Further, it has also come
in the evidence of the said witness that the accused stated to him
that he inserted his penis many a times and ejaculated in vagina.
However, this fact is not specifically mentioned in the report

Judgment in Cri. Appeal Nos.98-22 & 818-25
(16)
(Exh.50). Therefore, it is to be seen that whether such admission /
confession of the appellant/accused is sufficient to prove the
allegation against him about committing forcible intercourse with
the victim. It is to be noted that the learned trial Judge observed
that there was own admission on the part of appellant/accused by
disclosing the aforesaid fact to the Medical Officer (PW-8), and
therefore, such type of confession is sufficient to prove his guilt.
This issue can be discussed in the light of the judgment of High
Court of Gujarat at Ahmedabad in Criminal Appeal No. 2238 of
2008. In the said judgment the Gujarat High Court has referred
various judgments of the Hon’ble Apex Court as follows :
In the case of Kanda Padayachi vs State of Tamil Nadu, the
Hon’ble Apex Court observed that the statement of admission of
any fact is not barred under Section 26 if it is not a full confession.
Further, in the case of State of Assam vs Anupam Das, it is
observed that confession to a Doctor in police custody is hit by
Section 26. In case of Salim vs State of Kerala, it is observed that
confession to a Doctor in custody, is inadmissible, because it would
defeat the safeguard of Section 26 of the Indian Evidence Act. In
the case of Trikambhai @ Tiko Ravajibhai Thakor vs State of
Gujarat, it is observed that if the facts of the case suggest

Judgment in Cri. Appeal Nos.98-22 & 818-25
(17)
admissibility of the statement of accused, then in that case, such
confession specially in police custody, is inadmissible.
15. The issue before this Court in the instant case is whether the
admission/confession made by appellant/accused before the
Medical Officer while in police custody, is admissible in evidence to
convict him. For this purpose certain relevant legal provisions in
the Indian Evidence Act, 1872 are required to be discussed. It is
already provided in Section 25 of the Evidence Act that confession
made to a police officer is inadmissible in the evidence. However,
we are not dealing with the case whether the confession is made by
the accused to a police officer. Further, Section 26 of the Evidence
Act states that though the confession made by a person while in
police custody is inadmissible, but if it is made in immediate
presence of Magistrate, that can be considered. Section 27 of the
Evidence Act is in nature of proviso to Sections 25 and 26 wherein
it is provided that only the part of information from the accused in
police custody, which leads to the discovery of a fact, is admissible.
Not only this, but the High Court of Gujarat in the aforesaid case
has also compared admissions with confessions. Under Section 21
of the Evidence Act, though the admissions are held generally
admissible against the maker, but a confession which is a type of

Judgment in Cri. Appeal Nos.98-22 & 818-25
(18)
admission, is subject to the restrictions under Sections 24 to 26 of
the Evidence Act. By discussing these provisions, the High Court
of Gujarat has laid down certain principles, according to which,
there is distinction between confession and admission and if a
statement amounts to a confession relating to admission of guilt
made before the police officer, it is barred. However, if it is merely
an admission of guilt, but not a full confession of crime, it may be
admissible.
16. Here in this case the appellant/accused was admittedly in
police custody when he gave history of the incident to the doctor.
The history given by the appellant/accused in the instant case was
regarding admission of his guilt of committing forcible sexual
intercourse with the victim. The appellant had specifically
narrated to the Medical Officer that on which dates he performed
the alleged criminal act with the victim. Thus, when the aforesaid
admission of the appellant/accused about his guilt was relating to
the criminal act alleged against him, it can certainly be considered
as “confession”, and therefore, it is subjected to restrictions under
Sections 24 to 26 of the Indian Evidence Act. It is held in the
aforesaid case that a confessional statement made by the accused
to Medical Officer while in police custody, is inadmissible under

Judgment in Cri. Appeal Nos.98-22 & 818-25
(19)
Section 26 of the Evidence Act. There is nothing on record to show
that the history was given by the appellant/accused to the Medical
Officer (PW-8) in the immediate presence of Magistrate. Therefore,
for that purpose also it cannot be held admissible. It is to be noted
that even though statement was made to a doctor and not to a
police officer, it cannot be held that it is exempted from the bar of
Section 26 of the Evidence Act. Considering these aspects we are
of the opinion that the statement made by appellant/accused
before the Medical Officer (PW-8) while giving history before his
medical examination, cannot be treated as admission of his guilt as
held by the learned trial Judge, since the said statement is clearly
inadmissible in the evidence. In view of the same, we are not in
agreement with the learned trial Judge for using such admission of
appellant/accused for holding him guilty for the alleged criminal
act.
17. Now we come to the evidence of prosecution as regards the
main criminal act of the appellant/accused. Though the
prosecution has examined in all 14 witnesses to establish the guilt
of the accused, but for the alleged act of performing sexual
intercourse with the victim, the evidence of her grandmother is not
of that much importance, because it was the victim who narrated

Judgment in Cri. Appeal Nos.98-22 & 818-25
(20)
her the incident. Therefore, the evidence of victim i.e. PW-11 is
vital to ascertain whether the accused had committed sexual
intercourse with her. Further, from the point of corroboration to
the evidence of victim, the evidence of PW-7 Dr. Deepmala
Bhalchandra Patil, who had examined her, is to be seen. PW-11
victim in her evidence has deposed that her friend Komal
introduced her with the appellant and thereafter she was in love
with him. She has deposed that the appellant had also assured
her that he would marry her. Further, she has deposed about
earlier incident of sexual intercourse and stated that her friend
Komal carried her at the house of appellant/accused where the
accused had physical relation with her. She further narrated that
after about 15 days of the first incident, Komal again asked the
victim to accompany her and then she was taken to bus stand.
Accused was also there and by giving her proposal of marriage, he
forcibly took her to his aunt’s house at Pimpalgaon Kota in S.T.
Bus. She has deposed that at there also appellant/accused had
sexual intercourse with her, but police came there and she was
brought to Kalamnuri Court. Apart from that, she also deposed
that how she narrated the incident to Lady Police and also gave
clothes to the police which she identified during the trial. Thus,
from the Chief Examination of the victim it is revealed that

Judgment in Cri. Appeal Nos.98-22 & 818-25
(21)
according to her the appellant/accused performed sexual
intercourse with her at least on two occasions. Though in cross-
examination the victim deposed that she did not raise any alarm at
the time when appellant/accused carried her to his aunt’s house
and that she was loving the accused, but as stated above, these
cannot be circumstances from which the appellant/accused can be
benefited for charge against him under Sections 363 and 366-A of
I.P.C. since the victim was aged only 13 years. However, from the
cross-examination of the victim it reveals that both of them were in
love with each other and the victim might have gone with the
appellant/accused suo-moto. But these statements cannot absolve
the accused from the act of performing sexual intercourse with the
victim, as her consent was immaterial at the relevant time, because
of her minor age.
18. Though the victim has stated so about physical relationship
between herself and the appellant/accused, but the corroborative
medical evidence is also to be taken into consideration to verify as
to whether the victim is telling the truth. We are definitely
conscious of the fact that conviction under the provisions of
POCSO Act can be based solely on the testimony of victim, if it
inspires confidence. We are also conscious of the fact that there

Judgment in Cri. Appeal Nos.98-22 & 818-25
(22)
are number of judgments of the Hon’ble Apex Court wherein the
sole testimony of victim has been relied upon for convicting the
accused under POCSO Act even in the absence of corroborative
medical evidence, at times. To test the veracity of the evidence of
victim, we find it necessary to go through the evidence of medical
officer which is relied by the learned counsel for the appellant/
accused. Learned counsel for the appellant is claiming that
though the victim has deposed against the appellant/accused,
there is absolutely no evidence by the prosecution to substantiate
the version of victim of committing forcible sexual intercourse with
her by the appellant/accused.
19. As per the evidence on record, PW-7 Dr. Deepmala
Bhalchandra Patil had examined the victim on 25/10/2019 under
the direction of Kalamnuri police station. From her evidence it
reveals that the victim had told her that on 24/10/2019 at about
12.00 p.m. she ran away with the appellant/accused and went to
Pimpalgaon and stayed there at the house of his relative, but they
were caught by police on 25/10/2019 at 4.00 a.m. The victim had
also told PW-7 Dr. Patil that she had performed sexual intercourse
with the appellant/accused in the intervening night of 24/10/2019
and 25/10/2019 and even earlier also preceding four months.

Judgment in Cri. Appeal Nos.98-22 & 818-25
(23)
However, the evidence of PW-7 Dr. Patil clearly indicates that she
did not find any injury on the body of victim. Moreover, no hymen
injury was present. For quick reference, we would like to
reproduce the part of the evidence of PW-7 Dr. Patil, which relates
to examination of victim, as below:
“So also, upon general physical examination, the mental
condition of victim was found well oriented about time,
place and person. The Blood Pressure was 110/80,
minimum pulse rate was 78, Respirations 16/ per min.
Height 137 cm. Weight 29 kg. Gait of victim was normal.
Per abdominal was soft. There were no any injury was
found on the body of victim. Local examination, the
pubic hairs were present, labia Majora was normal and
healthy; Labia Minora was normal and healthy, Clitoris
were normal and healthy and Fourchette and
Introitus/Vagina was normal and healthy. Hymen injury
was absent. No perinea 1 tear, urethra was normal, PS
normal and healthy, Anus was also normal, Oral cavity
was within normal limit, no other findings”.
It is most important to note that this witness has in clear
terms stated as per her final opinion at the time of examination
according to laboratory report and clinical examination there was
possibility of sexual assault on the victim. However, this witness,
in the cross-examination, has admitted that she did not find the
sexual intercourse sign during her examination of victim. Thus,

Judgment in Cri. Appeal Nos.98-22 & 818-25
(24)
though the victim had stated that the appellant/accused
performed sexual intercourse with her, but in her medical
examination no signs of sexual intercourse with her were found.
The absence of injury to hymen clearly indicates that there was no
penetration. We are definitely aware of the fact that even partial
penetration amounts to aggravated sexual assault or rape, but here
in this case everything was normal and nothing suggested that the
victim was subjected to forcible sexual intercourse at the hands of
appellant/accused. Thus, even though the victim has stated that
the appellant/accused had sexual intercourse with her, but
considering the medical evidence on record coupled with evidence
of PW-7 Dr. Deepmala, who had examined the victim, it is evident
that nothing has come on record to infer that there was penetrative
sexual intercourse by the appellant with the victim. As such, we
are of the opinion that the prosecution has failed to establish the
case of aggravated penetrative sexual assault on the victim by the
appellant/accused. However, we are also of the opinion that even
though the aggravated penetrative sexual assault on the victim is
not proved, but the victim cannot be outrightly disbelieved. The
victim, due to pressure of family members, might have stated that
the accused committed sexual intercourse with her. However, the
fact cannot be denied that she was found in the bed of the

Judgment in Cri. Appeal Nos.98-22 & 818-25
(25)
appellant/accused when the police got information about her and
appellant/accused being present in the house of his relative.
20. Learned counsel for the appellant/accused vehemently
argued that since the medical evidence failed to establish the
penetrative sexual intercourse with the victim, his conviction needs
to be converted to the offence under Section 7 of the POCSO Act,
which reads thus :
“7. Sexual assault.—Whoever, with sexual intent touches
the vagina, penis, anus or breast of the child or makes
the child touch the vagina, penis, anus or breast of such
person or any other person, or does any other act with
sexual intent which involves physical contact without
penetration is said to commit sexual assault”.
On plain reading of the aforesaid section, it is evident that the
present act of the appellant/accused can be covered under the
aforesaid definition since the penetrative sexual intercourse is not
established. However, when the victim was found with the accused
in his bed, there is scope to hold that he had physical contact with
her with sexual intent though without penetration. Moreover,
PW-7 Dr. Deepmala has clearly stated in her evidence that though
she did not find signs of penetrative sexual intercourse, but the
possibility of sexual assault could not be ruled out. Therefore,

Judgment in Cri. Appeal Nos.98-22 & 818-25
(26)
considering the definition of sexual assault given in Section 7, the
appellant/accused can be punished for sexual assault as per
Section 8 of the POCSO Act, which provides 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 liable to fine.
21. Useful reference can be taken from the judgment dated
01.04.2025 in Criminal Appeal No.388 of 2024 alongwith Criminal
Appeal No.389 of 2024 wherein this Court was dealing with the
charges against the appellant therein of having been committed
aggravated sexual assault with the victim therein of tender age i.e.
6 years. In that case also though the allegation of aggravated
sexual assault was there, but considering the absence of medical
evidence, this Court had converted the conviction of the appellant
therein from the offence under Section 6 to one under Section 8
read with 18 of the POCSO Act and imposed sentence of rigorous
imprisonment for five years and to pay fine of Rs. 5,000/-. In the
present case also, on the basis of evidence on record, it has been
established that no offence under Section 6 of the POCSO Act or
under Section 376 (3) of I.P.C. is made out. However, the
appellant/ accused can still be convicted under Section 8 of the
POCSO Act for committing sexual assault without penetration.

Judgment in Cri. Appeal Nos.98-22 & 818-25
(27)
22. Considering all above-discussed aspects, we are of the
considered opinion that the prosecution has not established either
the offence under Section 6 of the POCSO Act or under Sections
376 (2) (i),376 (2) (n) or 376 (3) of I.P.C. However, the prosecution
has definitely established the offence punishable under Section 8 of
the POCSO Act against the appellant alongwith other remaining
sections. It is to be noted that the appellant/accused was hardly
19 years old at the time of incident and it has also come on record
that there was love affair between the victim and himself. However,
merely because the victim was minor and her consent being
immaterial, the aforesaid offence appears to be established against
the appellant/ accused. Under such circumstances, we find it
proper to sentence the appellant/accused with rigorous
imprisonment for five years for the offence punishable under
Section 8 of the POCSO Act. In the result, we pass the following
order.
ORDER
(i) Criminal Appeal No. 98 of 2022 is hereby partly
allowed.
(ii) The impugned judgment and order dated
17/01/2022 in Special Case (POCSO) No. 34 of 2019
passed by learned Additional Sessions Judge-2,
Hingoli is hereby set aside only to the extent of

Judgment in Cri. Appeal Nos.98-22 & 818-25
(28)
conviction of the appellant under Sections 376 (2) (I)
and 376 (2) (n) of I.P.C. as well as under Section 6 of
the POCSO Act and he stands acquitted of the said
offences. However, the appellant/accused is
convicted for the offence punishable under Section 8
of the POCSO Act and is sentenced to suffer rigorous
imprisonment for five years and to pay fine of Rs.
5,000/-, which is to be adjusted from the fine
amount which he already deposited.
(iii) Rest of the order shall remain as it is. Appellant be
set at liberty if he has already undergone the
sentence of imprisonment and not required in any
other case.
(iv) Needless to state that Criminal Appeal No. 818 of
2025 filed by the State of Maharashtra for
enhancement of the sentence, stands dismissed.
(v) In both the appeals, the fees of the learned counsel
Mr. Ingole appointed to represent the
appellant/accused is quantified to Rs. 10,000/-
(Rupees Ten Thousand) for each appeal. Fees of the
learned counsel Mr. Usmanpurkar appointed to
represent respondent No.2-victim is also quantified
to Rs. 10,000/- (Rupees Ten Thousand).
(vi) Fees of the appointed counsel, as mentioned above,
be paid to them by High Court Legal Services Sub-
Committee, Aurangabad as expeditiously as
possible.

Judgment in Cri. Appeal Nos.98-22 & 818-25
(29)
(vii) Both appeals are accordingly disposed of.
( ABASAHEB D. SHINDE, J.) ( SANDIPKUMAR C. MORE, J.)

VD_Dhirde