Vishal Kshirsagar v. State of Maharashtra - Criminal Appeal

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• Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc -... Upgrade to Premium [Cites 16, Cited by 0 ] ### Bombay High Court

Vishal Dnyneshwar Kshirsagar vs The State Of Mah. Thr. Pso, Ps, Bela, ... on 25 March, 2026

2026:BHC-NAG:4757

                                                  1                        CRI.APEAL 04-2024.odt

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH AT NAGPUR

                              CRIMINAL APPEAL NO. 04 OF 2024

            Vishal Dnyneshwar Kshirsagar,
            Aged about - 23 years, Occu. - Nil,
            R/o. Chikhli, Tahsil Samudrapur,
            District : Wardha                                            ... Appellant

                     .. Versus ..

            1) The State of Maharashtra,
            through Police Station Officer,
            Police Station, Bela, District Nagpur.

            2) Victim in Crime bearing No. 11/2020
            at Police Station, Bela, Dirtrict Nagpur.                  ...Respondents

            -------------------------------------------------------------------------------
            Shri K.J.Topale, Advocate for appellant.
            Ms. Sneha Dhote, APP for respondent/State.
            Shri Anirudha Ananthakrushnan, Advocate (Appointed) for
            Respondent no. 2.
            -------------------------------------------------------------------------------
            CORAM :                 NEERAJ P. DHOTE, J.

            DATE OF RESERVING THE JUDGMENT : 18/02/2026
            DATE OF PRONOUNCING THE JUDGMENT: 25/03/2026

            JUDGMENT This is an Appeal under [Section 374(2)](https://indiankanoon.org/doc/929532/) of the Code

            of Criminal Procedure, 1973 (for short, ' [Cr.P.C](https://indiankanoon.org/doc/445276/).') against the
                                2                        CRI.APEAL 04-2024.odt

judgment and order dated 19/04/2023, passed by the learned

Additional Sessions Judge, Special Court No. 2 (POCSO),

Nagpur in Special POCSO Case No. 228/2020, convicting and

sentencing the Appellant as follows:-

"i) The accused Vishal Dnyneshwar Kshirsagar,
aged about 20 years, Occ. Labour, R/o. Chikhli, Tq.
Samudrapur, Distt. Wardha is hereby convicted
under Section 235(2) of Cr.P.C. for the offence
punishable u/s. 4 of the POCSO Act, 2012, i.e.
penetrative sexual assault arising out of Crime No.
11/2020 registered by Bela Police Station and
sentenced to suffer for a term of 10 years and fine
Rs. 1,000/- I/d. SI for one month.

ii) The accused Vishal Dnyneshwar Kshirsagar,
aged about 20 years, Occ. Labour, R/o. Chikhli, Tq.
Samudrapur, Distt. Wardha is hereby convicted
under Section 235(2) of Cr.P.C. for the offence
punishable u/s. 6 of the POCSO Act, 2012, and
sentenced to suffer imprisonment for a term of 20
years and fine Rs. 2,000/-I/d. SI for three month.

iii) The accused Vishal Dnyneshwar Kshirsagar,
aged about 20 years, Occ. Labour, R/o. Chikhli, Tq.
Samudrapur, Distt. Wardha is hereby convicted
under Section 235(2) of Cr.P.C. for the offence
punishable u/s. 363 of IPC and sentenced to suffer
imprisonment for a term of 5 years and fine Rs.
1,000/- I/d. SI for one month.

iv) The accused Vishal Dnyneshwar Kshirsagar,
aged about 20 years, Occ. Labour, R/o. Chikhli, Tq.

3 CRI.APEAL 04-2024.odt

         Samudrapur, Distt. Wardha is hereby convicted
         under [Section 235(2)](https://indiankanoon.org/doc/729076/) of Cr.P.C. for the offence
         punishable [u/s. 506](https://indiankanoon.org/doc/180217/) of IPC and sentenced to suffer
         imprisonment for a term of 3 months and fine Rs.
         500/- I/d. SI for one month.

v) The accused Vishal Dnyneshwar Kshirsagar,
aged about 20 years, Occ. Labour, R/o. Chikhli, Tq.
Samudrapur, Distt. Wardha is hereby convicted
under Section 235(2) of Gr.P.C. for the offence
punishable u/s. 376(2)(n)(j), 376(3) of IPC but in
view of mandate of sec. 42 of the POCSO Act,
2012, the maximum punishment is awarded to the
accused u/s. 4 and 6 of the POCSO Act, 2012, for
the similar act, therefore, punishment i.e. sentence
for the similar act is not permissible under the law.

vi) All the sentences shall run concurrently.

vii) The fine amount shall be paid to the victim
after deposited by the accused person in the Court
same shall be utilized for the purpose of medical,
education and welfare of the child.

viii) The accused are entitled for set off from the
punishment as contemplated u/s. 428 of Cr.P.C.

ix) The accused taken in custody and send to the
Central Jail, Nagpur.

x) .....

xi) ....

1. The prosecution's case as revealed from the police

report is as under:-

2.1 The victim aged 15 years was residing with her
4 CRI.APEAL 04-2024.odt

parents and brothers at the given address. On 11/01/2020, the

victim returned from school at 10.00 a.m. She accompanied her

parents to the agricultural field. Her brother had gone to the

Taluka place. As the victim was not feeling well, she returned

home. When her brother came home at 04.00 p.m., he did not

find the victim at home. Despite search, the victim was not

found. The brother lodged the report with the Bela Police Station,

District Nagpur against the unknown person and Crime bearing

No. 11/2020 came to be registered for the offences punishable

under Section 363 of the Indian Penal Code, 1860 (for short,

' I.P.C.').

2.2 During the investigation, the police found victim

and the Appellant together. They were taken into custody. The

victim was sent for medical examination. The victim's statement

was recorded. On the statement of the victim, the offences

punishable under Sections 376(2)(n)(j) & 506 of IPC and the

offence punishable under Sections 4 and 6 of the Protection of

Children from Sexual Offences Act, 2012 (for short, ' [POCSO

Act](https://indiankanoon.org/doc/103108231/) ') came to be added in the aforesaid Crime Number. The

Appellant came to be arrested and sent for medical examination.

5 CRI.APEAL 04-2024.odt

The spot panchanama was drawn. The statement of the witnesses

were recorded. The victim was found pregnant. With the consent

of her parents, the pregnancy was terminated. The samples of the

victim, the Appellant and foetus came to be drawn and sent to the

Laboratory for examination. The DNA report indicated that, the

Appellant and the victim were the biological parents of the

foetus. On completion of investigation, the Appellant came to be

charge-sheeted.

2.3 The learned Trial Court framed the Charge against

the Appellant vide Exh. 03 for the offences punishable under

Sections 363, 376(2)(n) & (j), 376(3) and 506 of IPC and for the

offences punishable under Sections 4 and 6 of POCSO Act. The

Appellant pleaded not guilty and claimed to be tried. To prove

the charge, the prosecution examined in all twelve (12) witnesses

and brought on record the relevant documents in the evidence of

the witnesses.

2.4 After the prosecution filed the evidence closure

pursis, the learned Trial Court recorded the statement of the

Appellant under Section 313(1)(b) of the Cr.P.C. The Appellant

stated that, he was falsely implicated. After hearing both the sides
6 CRI.APEAL 04-2024.odt

and appreciating the evidence available on record, the learned

Trial Court passed the impugned judgment and order.
3. Heard the learned Advocate for the Appellant, the

learned APP for the State and the learned Advocate for the

victim. Scrutinized the evidence on record.

3.1 It is submitted by the learned Advocate for the

Appellant that, the prosecution failed to prove that, the victim

was below the age of 18 years. The birth certificate brought on

record was issued after the crime was registered. No witness was

examined to prove the date of birth and age of the victim. The

evidence of the victim shows that, there was love affair between

the Appellant and the victim. The other evidence on record was

insufficient to prove the charge. The Appeal be allowed by

setting aside the conviction and sentence.

3.2 It is submitted by the learned APP for the State that,

the DNA report shows that, the Appellant was the biological

father of the foetus. The victim deposed of the incident and her

date of birth, which matches with the birth certificate. As there

was no cross in respect of the age of the victim, the learned Trial

Court has rightly convicted the Appellant and no interference was
7 CRI.APEAL 04-2024.odt

called for in the impugned judgment and order, and the Appeal be

dismissed.

3.3 It is submitted by the learned counsel for the Respondent

no. 2-victim that, the victim's testimony remained unshaken in

cross-examination. The victim's testimony was sufficient to

prove the charge. The Appeal be dismissed.

1. As regards the age of the victim is concerned, the

prosecution relies on the birth certificate brought on record at

Exh. 43 in the evidence of the victim. Except this, there is no

evidence in respect of the date of birth and the age of the victim.

The victim's evidence in respect of her own date of birth would

be inadmissible being hearsay. There is no challenge to the said

Exh. 43 in the cross-examination. The evidence of P.W.-10

Investigating Officer shows that, the Exh. 43 - Birth Certificate

was issued by the Chanoda Grampanchayat in response to a

communication made by her. In absence of the challenge to the

said public document, there is no reason to discard the same. The

date of birth in the said Exh. 43 is shown as 23/08/2004. The

crime is registered on 12/01/2020. This clearly goes to show that,

the victim was a child as defined under Section 2(d) of the
8 CRI.APEAL 04-2024.odt POCSO Act at the relevant time i.e. below the age of 18 years.

1. It is the prosecution's case that, the victim was

kidnapped and raped by the Appellant. To prove the charge, the

victim's testimony is crucial. The victim is examined as P.W.-7.

Her evidence shows that, during the Diwali vacation of 2018, she

had been to the village of her maternal uncle, where she stayed

for four (4) days. During that period, she got acquainted with the

Appellant. They got friendly. After the victim returned to her

native place, the Appellant used to visit her house. The Appellant

used to come to the victim's house in absence of her parents. The

Appellant did sexual intercourse with her multiple times at her

house. On 11/01/2020, while she was returning from her

agricultural field to her home as she was not feeling well, the

Appellant came and forcibly took her on the motorcycle to

Nagpur, which was at the distance of 80-90 km. She stayed with

the Appellant at the house of Appellant's sister at Nagpur.

Thereafter, the Appellant took her to Hinganghat. The Police

apprehended them on the way and brought them to the Police

Station. The victim was medically examined and found pregnant.

1. The evidence of the victim that, she was raped and 9 CRI.APEAL 04-2024.odt

forcibly kidnapped by the Appellant, is required to be seen with

doubt. It is strange that, though the Appellant came to the house

of the victim and committed rape, nothing was disclosed by the

victim to her parents. According to the victim, the Appellant

threatened her to defame and therefore, she kept quite. It is

further strange that, though the Appellant took her forcibly on the

motorcycle to a long distance, she neither raised alarm nor any

hue and cry. What the evidence of the victim goes to show is that,

she was equally responsible for whatever happened with her. It

is clear from the evidence of her brother who is examined as

P.W.-1 that, the victim was a student of 10th standard. The

victim's evidence goes to show that, she was a girl of mature

understanding. Her evidence shows that, she went to the Police

Station with her father and brother 5 to 6 days after she narrated

the incident to them. The suggestion is given to the victim that, at

the instance of her parents, she gave the statement to the police.

The victim's evidence clearly shows that, she eloped with the

Appellant. There cannot be any dispute that, being minor, her

consent was immaterial. However, her evidence in respect of

kidnapping and rape does not inspire confidence and is required

to be seen with doubt.

10 CRI.APEAL 04-2024.odt

1. The missing report was lodged by the brother of the

victim. There is no other witness in respect of kidnapping and

rape. The medical evidence in the nature of testimony of P.W.-9

Megha D. Dabile, the Medical Officer who examined the victim

on 17/01/2020 shows that, her introtus was patulous and

admitted three (3) fingers. Hymen was torn, old healed tears

were present, edges were regular, there was no bleeding and

edema. The medical evidence does not show any violent injury

on the victim.

1. The other evidence on which the prosecution relied

is the DNA report at Exh. 81 showing the Appellant and victim as

the biological parents of abortus of the victim. It is the settled

position under the law by way of judicial pronouncements in

Chandu @ Chandrashekhar Keshaorao Chambhare V/s. State of

Maharashtra 2025 DGLS (Bom.) 590 and Nivrutti S/o Nagorao

Hange V/s. The State of Maharashtra and another 2024 ALL

MR (Cri.) 3445 that, before relying on the DNA report, it has to

be established that, the samples were taken, preserved

and examined as per the protocol set out for the

same. Before accepting the DNA report, the possibility of
11 CRI.APEAL 04-2024.odt

contamination of the samples is required to be completely ruled

out. Only if the chain of handling the DNA report is established,

the DNA report can be relied. The evidence of P.W.-9 Megha D.

Dabile, the Medical Officer shows that, she collected the blood

sample of the victim, sealed the same and handed over to P.W.-4

Dipali D. Bhagat. Her evidence shows that, during the medical

examination of the victim, the victim was found pregnant of 21

weeks. The evidence of P.W. 4 Dipali D. Bhagat, the Woman

Police Constable shows that, on 17/01/2020, she took the victim

to the Government Hospital for medical examination. The Doctor

had taken the samples of the victim for DNA in the DNA kit,

sealed the same and handed over two (2) packets to her.

However, her evidence does not show as to whom, she handed

over the said samples. It was necessary to lead link evidence in

that regard.

1. There is evidence of P.W.-5 Dr. Surbhi R. Udasi that,

she was the Medical Officer in the Government Medical College.

On 24/01/2020, the Appellant was brought for the medical

examination. She medically examined him and found no surface

injury on his body except skin infections on multiple regions. She
12 CRI.APEAL 04-2024.odt

found the Appellant to be capable of performing sexual

intercourse. Her evidence does not show that, the blood samples

of the Appellant was drawn for DNA. Though Exh. 76-A, the

Identification Form is brought on record in the evidence of

P.W.-12 the Forensic Expert, there is no substantive evidence in

respect of drawing the blood samples of the Appellant.

1. The evidence of P.W.-10 Snehal S. Thorat who

investigated the crime shows that, she issued a letter to the

Medical Officer with a request to collect the blood samples of the

victim and foetus for DNA test. The DNA samples were handed

over to P.W. 6 Thushar S. Salam, the Police Constable for

depositing the same with Forensic Laboratory. The evidence of

P.W. 6 Tushar S. Salam shows that, on 22/01/2020, he carried

the samples of the blood of the victim and the Appellant to the

Laboratory and on 27/01/2020, he collected the samples of foetus

from the Medical College and submitted the same to the

Laboratory.

1. Whatever evidence is brought on record by the

prosecution, it falls short of establishing the chain of handling
13 CRI.APEAL 04-2024.odt

the samples, which were collected for DNA testing, as required

by the protocol. The evidence led by the prosecution do not

establish that, the samples were drawn, preserved and carried out

without there being any possibility of contamination. In absence

of the evidence to rule out the possibility that, the integrity of the

samples was maintained throughout, the DNA report showing the

Appellant and the victim as the biological parents of the foetus,

cannot form the basis to maintain the conviction and sentence. As

per the above referred judgments, the DNA report is an opinion

evidence.

1. As the victim's testimony is not found reliable and

the other evidence on record falling short of proving the charge

against the Appellant, it is not possible to maintain the

conviction. In absence of establishing the foundational facts by

the prosecution, there is no question of drawing presumption

under Section 29 of the POCSO Act against the Appellant. The

Appellant is thus entitled for acquittal. The Appeal, therefore,

succeeds. Hence, the following order:-

ORDER

I) The Criminal Appeal is allowed.
14 CRI.APEAL 04-2024.odt

                           II)      The conviction and sentence recorded by the learned
                           Additional Sessions Judge, Special Court No. 2 (POCSO),
                           Nagpur against the Appellant in Special POCSO Case No.
                           228/2020, by the impugned judgment and order dated
                           19/04/2023, is hereby quashed and set aside.

                           III)     The Appellant is acquitted for the offences punishable
                           under [Sections 363](https://indiankanoon.org/doc/619940/), [376(2)(n)(j)](https://indiankanoon.org/doc/16342935/), [376(3)](https://indiankanoon.org/doc/23642035/) and [506](https://indiankanoon.org/doc/180217/) of IPC and for
                           the offences punishable under [Sections 4](https://indiankanoon.org/doc/26275631/) and [6](https://indiankanoon.org/doc/183539218/) of POCSO Act.

                           IV)      The Appellant is behind the bars. He be set at liberty, if not
                           required in any other offence.

V) The fine amount, if paid by the Appellant, be refunded to
him.

VI) Record and Proceedings be sent back to the learned Trial
Court.

VII) For this Appeal, the fees of the learned Advocate appointed
to represent the victim is quantified at Rs. 7,500/- [Rupees Seven
Thousand Five Hundred Only], which shall be paid by the High
Court Legal Services Sub-Committee, Nagpur.

                           (VIII) The Criminal Appeal stands disposed of accordingly.

[NEERAJ P. DHOTE, J.]

                           B.T.K.

Signed by: Mr. B.T. Khapekar
Designation: PA To Honourable Judge
Date: 25/03/2026 17:55:03