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I N THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL APPEAL NO.237/2023

Sandip S/o Sambhaji Kurekar,

aged about 33 years, Occu. Agriculturist,

Resident of Village Murdhoni,

Tahsil Wani, District Yavatmal (in Jail)....Appellant

- Versus -

The State of Maharashtra,

through Police Station Officer,

Police Station Wani, District Wani. ... Respondent

WITH

CRIMINAL APPEAL NO.258/2023

Praful Prabhakar Dhule,

aged 30 years, Occu. Service,

Resident of Shivmandir, Murdhoni,

Wani, Tahsil Wani, District Yavatmal. ...Appellant

- Versus -

1.The State of Maharashtra,

through Police Station Officer,

Police Station Wani, District Yavatmal.

2.XYZ, Crime No.92/14,

P.S. Wani, Tq. Wani,

District Yavatmal. ... Respondents

-----------------

Mr. Rupesh D. Darunde, Advocate for the Appellant.

..(in Criminal Appeal No.237/2023)

Mr. A.S. Mardikar, Senior Advocate a/b. Mr. S.U. Dable, Advocate

for the Appellant. ..(in Criminal Appeal No.258/2023)

Mr. Ujjawal R. Phasate, A.P.P. for the Respondent/State.

Ms. C.S. Bhute, Advocate (appointed) for the Respondent No.2.

..(in Criminal Appeal No.258/2023).

---------------- 2026:BHC-NAG:4228

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CORAM: NEERAJ P. DHOTE, J.

DATE OF RESERVING THE JUDGMENT: 09.03.2026.

DATE OF PRONOUNCING THE JUDGMENT: 13.03.2026.

COMMON JUDGMENT

Both these Appeals are filed under Section 374(2) of the Code

of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the

judgment and order dated 09.03.2023 passed by the learned Special

Judge, Kelapur, District Yavatmal in Special (POCSO) Case

No.14/2014 convicting and sentencing the Appellants as follows:-

“1] Accused No.1 Praful Prabhakar Dhule, is hereby

convicted for the offence punishable under Section

376(2)(n) of the Indian Penal Code, as per provisions

of Section 235(2) of the Code of Criminal Procedure,

and he is sentenced to suffer rigorous imprisonment

for Ten years and to pay fine of Rs.5,000/- (Five

Thousand only) in default to suffer rigorous

imprisonment for Five months.

2]Accused No.1 Praful is also convicted for the

offence punishable under Section 417 of the Indian

Penal Code and he is sentenced to suffer rigorous

imprisonment for Six months and to pay fine of

Rs.1,000/- (One Thousand only) in default to suffer

rigorous imprisonment for One month.

3] Accused No.1 Praful Prabhakar Dhule and

accused No.2 Sandip Sambhaji Kurekar, are hereby

convicted for the offence punishable under Section

376-D read with Section 34 of the Indian Penal Code,

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and they are sentenced to suffer rigorous

imprisonment for Twenty years each and to pay fine of

Rs.20,000/- (Twenty Thousand only) each, in default

to suffer rigorous imprisonment for Twenty months

each.

4] Accused No.1 Praful Prabhakar Dhule and

accused No.2 Sandip Sambhaji Kurekar, are hereby

convicted for the offence punishable under Section

506 read with Section 34 of the Indian Penal Code,

and they are sentenced to suffer rigorous

imprisonment for Six months each and to pay fine of

Rs.1,000/- (One Thousand only) each, in default to

suffer rigorous imprisonment for One month each.

5]All the substantive sentences of imprisonment

shall run concurrently.

6]Accused No.1 Praful Prabhakar Dhule, No.2

Sandip Sambhaji Kurekar, No.3 Manoj Sambhaji

Dubey and No.4 Praful Vinod Dhande, are hereby

acquitted of the offence punishable under Section 6,

12 and 14 of the Protection of Children from Sexual

Offences Act, so also under Section 66-E and 67-B of

the Information Technology Act.

7]Accused No.3 Manoj Sambhaji Dubey and No.4

Praful Vinod Dhande, are also hereby acquitted of the

offence punishable under Section 376-D and 506 read

with Section 34 of the Indian Penal Code, and they are

set at liberty. Their bail bonds shall stand cancelled.

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8] During pendency of the proceedings, accused

No.1 Praful Dhule, was in detention since 15/04/2014

to 28/05/2014 and accused No.2 Sandip Kurekar, was

in detention, since 15/04/2014 to 29/09/2014,

therefore set off is accordingly granted to them for the

period already undergone, as per provisions of Section

428 of the Code Criminal Procedure.

9]Both accused No.1 and 2 are on bail, they shall

surrender to their bonds.

10]Accused No.3 Manoj Sambhaji Dubey and No.4

Praful Vinod Dhande, shall execute bail bond of

Rs.25,000/- each with surety of like amount each, for

the next period of Six months, in compliance to the

provisions of Section 437-A of the Code of Criminal

Procedure.

11]…..

12]…..

13]…..

14]…..

15]…..

16]…..”

2.The prosecution’s case, as revealed from the Police Report, is

as under:-

a)The Victim was residing with her parents and brother. She

was taking education in the local school at Murdhoni, Taluka Wani,

District Yavatmal. She became conversant with the Appellant Praful

Dhule. They used to talk with each other. The love relations

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developed between them. The Appellant Praful told the Victim that,

as they were going to marry with each other, they should have

physical relations. The Victim did not agree. Once, Appellant Praful

called the Victim to his house and did sexual intercourse with her.

As the visits of Appellant Praful became frequent to the house of

Victim, the parents of Victim suspected the love relations between

them. The Victim’s parents sent the Victim for education to village

Borda at the house of the elder sister of Victim’s mother. The

Appellant Praful started visiting the said place to meet the Victim.

The Appellant Praful did sexual intercourse with Victim at village

Borda. In 2013, the Victim’s father admitted her to 11

th

standard at

Wani. From August 2013, she started attending the Junior College

at Wani from her native place Murdhoni. The Appellant Praful used

to meet the Victim at the outside of college at Wani. In November

2013, the Appellant Praful took the Victim to the room of his friend

where did sexual intercourse with Victim. After some days, the

Appellant Praful took the Victim to the agricultural field at Borda

and did sexual intercourse with the Victim.

b)On 27.03.2014 at about 12 noon the Appellant Praful met the

Victim in the Tilak Square, Wani and took her with him on the

motorcycle at one place like Jangal on Moregaon Road, and did

sexual intercourse with the Victim. The Appellant Sandip Kurekar

and acquitted accused reached the said place and they did sexual

intercourse with the Victim. Appellant Praful threatened the Victim

not to disclose the incidence to any one. Due to the threat, the

Victim kept silent and did not disclose the incidence to her parents.

Thereafter both the Appellants used to come in front of the house of

the Victim’s house and make gestures inviting her for physical

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relations and told the Victim that, they have clicked her photographs

and threatened the Victim of posting the said photos on the

Facebook.

c)On 15.04.2014 at 8 a.m. the Appellant Praful came in front of

Victim’s house and asked her to accompany him. The Victim told her

parents the incident dated 27.03.2014 and approached the Wani

Police Station and lodged the Report.

d)The Crime bearing No.92/2014 came to be registered against

both the Appellants and others for the offence punishable under

Sections 376-D and 506 of the Indian Penal Code, 1860 (for short

“I.P.C.”) and for the offence punishable under Section 6 of the

Protection of Children from Sexual Offences Act (for short “POCSO

Act”). The Victim was referred for medical examination. The

Spot-Panchanama was performed. The statement of witnesses were

recorded. The Appellants came to be arrested. The Appellants were

sent for medical examination. The documents were collected from

the school attended by the Victim. The Test Identification Parade (for

short “T.I.P.”) was conducted. The seized articles were sent to the

Chemical Laboratory. The necessary documents were collected. On

completion of the investigation, the Charge-sheet came to be filed.

e)The learned trial Court framed the Charge against the

Appellants and two others for the offence punishable under Sections

376(2)(n), 417, 376-D read with Section 34 and 506 read with

Section 34 of I.P.C. and for the offence punishable under Sections 6,

12 and 14 of the POCSO Act and for the offence punishable under

Sections 66-E and 67-B of the Information Technology Act, 2000 (for

short “I.T. Act”) below Exh.88. The Appellants and the acquitted

accused pleaded not guilty and claimed to be tried. To prove the

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Charge, prosecution examined in all following 14 (fourteen)

witnesses.

i)The Victim, as P.W.1,

ii)The Victim’s mother, as P.W.2,

iii)Nandkishor M. Tugnayat, the Medical Officer who examined

the acquitted accused, as P.W.3,

iv)Pralhad N. Chamate, the Panch witness for seizure of the

articles, as P.W.4,

v)Avinash K. Ladke, the Headmaster of the school, where the

Victim was studying, as P.W.5,

vi)Sujata B. Sawale, the Lady Police Constable, who took the

Victim for medical examination, as P.W.6,

vii)Prajwalit P. Gour, the Radiologist who examined the Victim for

the age, as P.W.7,

viii)Ramesh B. Panghate, the Panch for Panchanama of village

Borda, as P.W.8,

ix)Vijay D. Matte, the Naib-Tahsildar who conducted the Test

Identification Parade (TIP), as P.W.9,

x)Gulabrao P. Wagh, the Investigating Officer, as P.W.10,

xi)Pradnya R. Wadekar, the Police Sub-Inspector who took the

Report and registered the Crime, as P.W.11,

xii)Shubhangi D. Dhokne, the Medical Officer who examined the

Victim, as P.W.12,

xiii)Raju R. Bageshwar, who carried the Muddemal to the Forensic

Laboratory, as P.W.13 and

xiv)Kavita S. Lanjewar, the Expert in Cyber Forensic, as P.W.14.

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f)The relevant documents are brought on record in the evidence

of the above referred witnesses. After the prosecution filed the

evidence closure pursis, the learned trial Court recorded the

statement of the Appellants under Section 313(1)(b) of the Cr.P.C.

The Appellants stated that, they were falsely implicated. After

hearing both the sides and appreciating the evidence available on

record, the learned trial Court passed the impugned judgment and

order convicting and sentencing the Appellants as above.

3.Heard the learned Senior Advocate for the Appellant (Praful

Dhule), the learned Advocate for the Appellant (Sandip Kurekar),

the learned A.P.P. for the State and the learned Advocate for the

Victim. Scrutinized the evidence available on record.

a)It is submitted by the learned Senior Advocate for the

Appellant (Praful) that, the Appellants are acquitted for the Charge

under the POCSO Act and I.T. Act. The evidence of the Victim

clearly shows that, there were love relations between her and the

Appellant Praful. The Victim was major by age. Her testimony in

respect of rape at various places do not inspire confidence. Her

evidence in respect of gang rape do not inspire confidence as no one

will commit such act at the open place. The medical evidence do not

support the Victim’s version. There are material omissions in the

testimony of the Victim. The evidence of the Victim’s mother cannot

be accepted as she admitted that, she read the Report before

deposing. The evidence in respect of gang rape was not adequate.

The learned trial Court recorded contrary findings and shifted the

burden on the Appellants under Section 106 of the Indian Evidence

Act, 1872 (for short I.E. Act”) without the prosecution discharging

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the burden of proof as per Sections 101 to 105 of the I.E. Act. The

recovery is not relevant as the Reports of Chemical Analyzer (C.A.)

are not incriminating. The prosecution failed to establish the Charge

and the Appellants were entitled for acquittal. He relied on the

decisions in respect of his submissions, which would be considered

in the later part of the judgment.

b)It is submitted by the learned Advocate for the Appellant

(Sandip Kurekar), that, the Appellant (Sandip) was a mediator for

the marriage between the Appellant Praful Dhule and one another

girl. There was no evidence to connect the Appellant (Sandip) with

the incident dated 27.03.2014. The conviction was recorded only on

the sole testimony of the Victim which do not inspire confidence.

The evidence on record do not prove the Charge and the Appeal be

allowed.

c)It is submitted by the learned A.P.P. for the State that, the

principle of ‘falsus in uno, falsus in omnibus’ is not applicable in

India. Only on a residue of testimony of the Victim, conviction can

be based. Nothing has come in the cross-examination to discredit the

testimony of Victim in respect of gang rape. The cross-examination

was in the nature of denials. Even if the omissions are considered,

the other evidence of the Victim proves the case of the prosecution.

The Victim’s evidence shows that, the act was against her wish.

Even though the love aspect of the Victim’s testimony is accepted,

the sexual relations between the Appellant Praful and the Victim was

3 to 4 years prior to the F.I.R. and at that point of time, the Victim

was minor. No interference was warranted in the impugned

judgment and order and the Appeal be dismissed.

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d)It is submitted by the learned Advocate for the Victim that, the

Victim was raped repeatedly and due to threats she kept mum.

Nothing has come on record as to why the Victim will falsely

implicate the Appellants. As the Victim was medically examined

after a period of one month, there were no injuries found on her

person. The Appellant Sandip was called by the Appellant Praful and

the Victim was raped. In support of his submissions, he relied on the

decision in Wahid Khan V/s. State of Madhya Pradesh (2010) 2

SCC 9. The Appeal be dismissed.

4.As is clear from the impugned judgment and order, the

Appellants are acquitted for the offence punishable under the

POCSO Act and I.T. Act. The learned trial Court in para 100 of the

impugned judgment observed that, the prosecution utterly failed to

establish and prove that, the Victim was a ‘child’ within the meaning

of POCSO Act.

5.The prosecution’s case largely rests on the testimony of the

Victim who is also the Informant. Her evidence shows that, she was

residing with her parents and brother at Murdhoni, Taluka Wani,

District Yavatmal. She was taking education. The Appellant Praful

was residing near her house. She became conversant with the

Appellant Praful. They became friendly. The Appellant Praful sent

love letter to her and expressed his wish to marry her. The Appellant

Praful asked for sexual favours. Though she refused, the Appellant

Praful did forceful sexual intercourse with her at his house. As their

love affair became the talk of the town, her parents shifted her for

education to another village Borda at the house of her mother’s elder

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sister. The Victim took education at the said place Borda. The

Appellant Praful did forceful sexual intercourse with her at Borda.

The Appellant Praful used to come near her college. Appellant

Praful took her to one room of his friend and did sexual intercourse

with her at various places. The Victim deposed that, on 27.03.2014

in the afternoon, the Appellant Praful made her to forcibly sit on his

motorcycle in the Lokmanya Tilak Square, Wani which was the

crowded place and took her behind one Darga at Nimbala-Phata

Road. It was the stony surface having thorny bushes. Appellant

Praful did forceful sexual intercourse with her. After 10 to 15

minutes the acquitted accused and the Appellant Sandip came there

and they also did the sexual intercourse with her. The Appellants

told her that, they were having her video clip while having the sex

with the Appellant Praful and asked her not to disclose to anybody

or else they will make the video viral. She became unconscious.

After regaining consciousness, the Appellant Praful dropped her to

her house and threatened her not to disclose the incident to

anybody. As on 15.04.2014 the Appellant Praful came near her

house and asked her to meet him or else he will viral the video clips,

she narrated the incident to her parents and they lodged the Report

with the Police Station, Wani below Exh.117. She further deposed

that, she showed the spot of incident to the police. She identified

her clothes shown to her. She was sent for medical examination. In

the Test Identification Parade (T.I.P.), she identified the acquitted

accused.

6.The Victim’s testimony that, while she was studying at

Saikrupa Mahavidyalaya at Murdhoni in 8

th

standard the Appellant

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Praful used to come near the school, the Appellant Praful sent love

letter to her, the Appellant Praful did forceful sexual intercourse with

her at Borda, the Appellant Praful used to talk with her and

demanded sexual favours, on 27.03.2014 he took her on the

motorcycle by the Yavatmal Road behind the Darga at

Nimbala-Phata which was the place with thorny bushes where he

committed forcible sexual intercourse with her and the Appellants

threatened her to make the video clip viral of her sexual intercourse,

she felt unconscious and after regaining consciousness, the Appellant

Praful dropped her to her house and on 15.04.2014 the Appellant

Praful asked her to come or else he will make the video viral, are the

omissions which are proved through P.W.11 Police Officer who

recorded her statement.

7.The evidence of Victim’s mother who is examined as P.W.2

shows that, the Victim was sent for the education at Borda since they

came to know of the love affair between the Victim and Appellant

Praful. She admitted in her cross-examination that, there was love

affair between the Victim and the Appellant Praful. The Appellant

Praful was from well to do family. Her cross-examination shows

that, the Victim did not inform her anything prior to 15.04.2014

about any of the acts. Her cross-examination shows that, before

deposing before the learned trial Court she went through the file

containing her statement and the Report so that, there would not be

any mistake in her evidence.

8.From the above evidence of the Victim and her mother it is

crystal clear that, the Victim and the Appellant Praful were in love

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relations. It has come in the cross-examination of the Victim that,

she did not made hue and cry when the Appellant Praful made her

forcibly to sit on the motorcycle at the Lokmanya Tilak Square. The

Victim remained silent though Appellant Praful committed forcible

sexual intercourse with her on several occasions at difference places.

Her testimony of forceful sexual intercourse by the Appellant Praful,

on so many occasions is not believable. The evidence clearly goes to

show that, the Victim was the consensual partner in whatever acts

done by the Appellant Praful.

9.As regards the incident dated 27.03.2014, it has come in her

cross-examination that, the place where she was taken by the

Appellant Praful was the place having thorny bushes and stony

surface. Her cross-examination shows that, she did not sustain

injury on any part of her body during the incident dated 27.03.2014.

It is strange that, despite the Victim was raped by other two persons

including the Appellant Sandip at the place having stony surface and

thorny bushes, she did not receive any injury on her person much

less on her backside of the body. The evidence of P.W.12 Medical

Officer who examined the Victim on 16.04.2014 shows that, she did

not find any injury on the person of Victim. The Medical Officer in

the cross-examination has deposed that, it is possible that, if a girl is

made to lie on land having thorny bushes and stone and forcefully

raped, there would be injuries on her back and dorsal side of the

body coming in contact with the land. He admitted that, if there are

penetrative laceration though healed, their marks are visible after 15

days. She did not find any symptom of any sexual transmitted

disease or infection to the Victim and mental condition of the Victim

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was good. She could not give opinion if the intercourse with the

Vitim was recent though she found that, there was sexual

intercourse with the Victim. It has come in the cross-examination of

the Medical Officer that, she opined in the report that, “non-

consistent with recent sexual intercourse”. Her cross-examination

further shows that, the hymen tear was old and it means that, the

Victim was habitual to sexual intercourse.

10.The above medical evidence do not corroborate the Victim’s

testimony about gang rape on 27.03.2014. The manner in which the

Victim deposed of the rape on her and the place of incident, the

medical evidence falsifies her testimony. The suggestion is given to

the Victim that, the Appellant Praful was going to marry with one

girl Shital and the Appellant Sandip was the mediator and as the

Victim learnt about the same, the false case was registered on

15.04.2014. Considering the omissions in the evidence of the Victim

and non-corroboration by the medical evidence, it is not possible to

rely on the testimony of the Victim. The evidence of the Victim’s

mother shows that, the Appellants belong to different caste. The

suggestion is given to the Victim’s mother that, since the Appellant

Praful was from well to do family, she was in favour of love affair

and marriage between the Victim and the Appellant Praful. There

cannot be any dispute in respect of the legal position in Wahid Khan

(supra) that, the evidence of the Victim of rape stands on equal

footing with that of injured witness and if her evidence inspires

confidence, corroboration is not necessary. The evidence on record

do not show that, the Victim’s evidence can be accepted. The

Victims testimony do not inspire confidence so as to rely on her.

15 apeal237.2023+1.odt

Even the corroborative evidence do not support the Victim’s version.

The learned trial Court has rightly observed that, the Reports of

Chemical Analyzer (Exhs.188 to 193) do not support the case of

prosecution. Though the evidence of Panch Witness P.W.4 shows

that, three (3) used condoms were seized from the spot on

16.04.2014 under the Panchanama below Exh.130, the C.A. Report

below Exh.189 shows that, neither blood nor semen were detected

in the said three (3) condoms. The prosecution’s evidence falls short

of establishing the Charge for which the Appellants are convicted.

11.The other co-accused Manoj S. Dubey and Praful Dhande are

acquitted by the learned trial Court. The observations made by the

learned trial Court shows that, it based the conviction on the sole

testimony of the Victim. Surprisingly, the learned trial Court in para

114 of the impugned judgment observed that, admittedly, the

Medical Officer did not notice any injury on the person of the Victim,

so also on her genitals and further went on to observe that, the

prosecution’s case was corroborated by the testimony of P.W.2

mother and the P.W.12 Medical Officer. As discussed above, the

prosecution’s evidence falls short of maintaining the conviction

recorded by the learned trial Court against the Appellants. Under

such circumstances, the Appellants are entitled for acquittal.

Though the learned Senior Advocate for the Appellant (Praful) relied

on seven (7) judgments in the support of his submissions, I do not

feel it necessary to burden this judgment by discussing the said

decisions. Hence, the following order.

16 apeal237.2023+1.odt

ORDER

i)The Appeal is allowed.

ii) The impugned judgment and order dated 09.03.2023 passed

by the learned Special Judge, Kelapur, District Yavatmal in Special

Case No.14/2014 convicting and sentencing the Appellants for the

offence punishable under Sections 376(2)(n), 417, 376-D, 506 read

with Section 34 of I.PC. is quashed and set aside.

iii)The Appellants are acquitted for the offence punishable under

Sections 376(2)(n), 417, 376-D, 506 read with Section 34 of I.PC.

iv)The Appellants be released forthwith, if not required in any

other offence.

v)Record and proceedings be sent back to the learned trial

Court.

vi)The fees of the learned Advocate appointed for the

Respondent No.2 is quantified at Rs.7,500/-. The same shall be paid

by the Legal Aid Services Sub-Committee, High Court, Nagpur.

(NEERAJ P. DHOTE, J.)

Tambaskar.