Conviction for unnatural offence under Section 377 IPC on a three-year-old girl was challenged in revision. The court upheld concurrent findings, holding corroborative evidence established penetrative intercourse despite no definite medical opinion on penetration. Revision dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2025:BHC-NAG:9873
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION (REVN) NO. 26 OF 2023
APPLICANT :Datta Digambar Ingle,
Aged about 36 years,
Occ : Agriculturist, R/o Bodkha,
Tq. Sangrampur, District Buldhana.
…. Original Appellant/Accused
V E R S U S
RESPONDENTS :1. The State of Maharashtra,
Through Tamgaon Police Station,
Tq. Sangrampur, District Buldhana.
… Prosecution
2. Grandmother of Victim (minor)
In Crime No.202/2008
To, Natural Guardian (Father)
Tamgaon Police Station, Sangrampur,
Buldhana.
Informant
Shri Aniket Sawal, Advocate for applicant.
Shri N. R. Patil, APP for Non-applicant No.1.
Shri U. V. Chakravarti, Advocate (Appointed) for Non-applicant
No.2.
CORAM: RAJNISH R. VYAS, J.
DATE : 24/09/2025.
ORAL JUDGMENT :
1.The victim in the instant case is three years old girl,
who was subjected to unnatural act by the applicant. The applicant
was, therefore prosecuted for commission of offence punishable
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under Section 377 of the Indian Penal Code and after considering
the evidence and material on record, Judicial Magistrate, First
Class, Sangrampur in Regular Criminal Case No.131/2009
convicted the applicant for the commission of offence punishable
under Section 377 of the Indian Penal Code and directed him to
undergo rigorous imprisonment for 3 years and to pay fine of
Rs.15,000/-. The default sentence was also imposed upon the
accused. Part of the fine amount was directed to be paid to the
victim as a compensation.
2.Being aggrieved, the applicant preferred the appeal
which also met the same fate. Now, the revisional jurisdiction is
invoked by the applicant on the ground that there are perverse
findings and evidence was not enough to support the charge.
3.I have heard Shri Aniket Sawal, learned counsel for the
applicant, Shri N. R. Patil, learned APP for Non-applicant No.1 and
Shri Chakravarti, learned counsel for Non-applicant No.2.
4.In order to bring home the charge, prosecution in all
has examined 11 witnesses. The incident in question, according to
the prosecution, occurred on 21/11/2008 at about 3.00 p.m. to
3.30 p.m. The applicant is the neighbour of the victim. The victim
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was three years old. On that day, the grand-mother of victim who
is PW-1 along with her husband were in the house. The parents of
victim had been to the field to do their work. When the victim was
playing near the door of house, the applicant asked her to come
with him. The applicant then picked up the victim, went to his
house, but after 15 minutes, PW-1 heard the noise of crying of
victim and therefore, she asked her daughter by name Vandana to
bring the victim to her house. It was noticed by PW-1 that there
was blood on the legs of victim and on being enquired about the
injury, victim took the name of applicant. Victim also pointed out
towards her buttock and on an examination, grand-mother found
blood oozing from her anus and vagina. She, therefore, went to
the house of the applicant and inspected the spot which was
shown to her by victim. She saw the blood stains on the spot.
According to the case of prosecution, victim informed her grand-
mother that the accused had put cotton ball in her mouth, due to
which she vomited also.
5.The factual position of the spot was shown by PW-1 to
Mahadev Awar, Bablya Nirmal and Dnyandeo Awar. This incident
set criminal law in motion which resulted into registration of First
Information Report at Exh.25. The victim, thereafter was
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immediately referred for medical examination and her medical
examination was done by PW-10 - Dr. Vaishali Bodhankar. Dr.
Vaishali Bodhankar found two injuries on anus of victim which are
reproduced as under :-
“Injury No.1 : Anal sphincter tear at 6’o clock
position.
Size : 6 mm (length) x 2 mm (depth)
anteroposteriorty edges irregular.
Blood oozing present on touch.
Age : within 06 hours.
Injury No.2: Anal sphincter tear at 11’o clock
position.
Size 2 mm (length) x 2 mm (depth)
anteroposteriory
Blood oozing present on touch
Age : within 06 hours.”
6.The said witness has further stated that the definite
opinion about the penetration, cannot be given by her and she did
not find any external injury except two injuries mentioned above.
After incident, mother and father of the victim i.e. PW-2 and PW-4
visited the spot and thereafter, visited the victim in the hospital
where she was examined. PW-3 is one Pandurang who was a
panch witness to the spot. So far as PW-5, 6 and 7 are concerned,
they have not supported the case of prosecution. PW-8 is the
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person who carried out initial investigation. PW-9 is the Police
Officer who after completion of investigation, filed charge sheet. It
is necessary to mention here that PW-11 is a Medical Officer, who
examined the applicant / accused on 24/11/2008 i.e. after three
days of incident and two days of lodging of FIR.
7.Considering the evidence of PW-1, PW-10 and PW-11,
it can be said that prosecution has proved crime beyond
reasonable doubt and therefore, the findings given by both the
Courts cannot be interfered.
8.It is pertinent to mention here that the victim is a
minor girl of three years old only. She sustained injuries which is
clear from the report and testimony given by PW-10. During the
course of investigation, her inner undergarments were also seized
and also were forwarded for medical examination. The Chemical
Analyzer’s report is produced on record below Exh.49 which
clearly states that Exh.42 is nicker stained with Blood Group-B.
Exh.42 is nicker wrapped in a paper label. Nicker was of the
victim. Blood Group-B was of the victim. Thus, the aforesaid fact
corroborates that the victim had sustained injury and therefore,
the blood was found on the undergarments. The testimony of PW-
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1 grand-mother clearly shows that it was the accused who picked
up the victim, took her inside the house and committed the
unnatural act.
9. Though the learned counsel for the applicant has
stated that no definite opinion has been given by the Medical
Officer regarding penetration, I am of the view that opinion given
by the Doctor is not a gospel truth. The surrounding circumstance
and corroborative piece of evidence is required to be seen. There
is absolutely no reason for grand-mother to narrate a false story
regarding unnatural sex, just because according to the applicant,
there is rivalry between the applicant and the family of the victim.
The contention advanced by the counsel is, thus not acceptable.
The counsel for the applicant has also stated that no injury was
found on the person of accused. At this stage, it is necessary to
clarify that the accused was subjected to medical examination
after two days of lodging of First Information Report and 3 days
after the date of incident. The question whether the act
committed resulted into causing injury on the person of the
accused, could have been decided, had there been specific stand
taken by the accused in cross-examination. The cross-examination
of the witnesses by the accused shows that it was not made with a
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view to seriously challenge the testimony of the witnesses who
supported the case of the prosecution.
10.So far as contention that spot is not proved, it is
required to be stated that though panch witness has turned
hostile, the spot is duly proved by the Investigating Officer. In
cross-examination, nothing has been brought on record to show
that the Investigating Officer was on enimical terms of the
applicant / accused. Even clothes of victim were forwarded for
forensic examination. Nicker of victim was found to be stained
with blood Group “B”, which is of victim (Exh.49).
11.The Courts have rightly considered the evidence and
had awarded sentence of 3 years. While convicting the applicant
for commission of offence punishable under Section 377 of the
Indian Penal Code, I could not find any perversity in the findings
given by the Trial Court as well as the Appellate Court.
12.Considering the scope of revision, I am therefore, not
inclined to interfere with the Judgments impugned. At this stage,
the counsel for the applicant has relied upon the Judgment
delivered by the High Court of Delhi, in the case of Kamal Vrs.
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State , reported in (2021) 4 High Court Cases (Del) 309, more
particularly in Para 51, which is reproduced below :-
“51.Therefore, in our opinion, “carnal
intercourse against the order of nature”
appearing in Section 377 must have the
following ingredients :
i]It must have to do with flesh and
sensuality, namely, it must be carnal;
ii]There must be intercourse between
individuals, without restricting it only to human-
to-human intercourse; and
iii]It must involve penetration other than
penile vaginal penetration, since by the very
nature, intent and purpose of Section 377, it
must refer to an unnatural act, such as “penile-
anal penetration”, “digital penetration” or “object
penetration”.
13.No doubt that the High Court has lucidly dealt with the
aspect of carnal intercourse against the order of nature appearing
in Section 377 of the Indian Penal Code, but the facts in the
present case are totally different.
14.Contention of applicant that since there is no definite
opinion given by the Medical Officer regarding penetration,
offence under Section 377 of the Indian Penal Code is not made
out, is not correct. As already stated corroborative piece of
evidence clearly establishes that there was penetrative intercourse.
So far as the Judgment delivered in the case ofPruthiviraj
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Jayantibhai Vanol Vrs. Dinesh Dayabhai Vala and others,reported
in (2022) 18 SCC 683 Para No.17 is concerned, ratio of same is
not applicable to instant case, which is reproduced as under :-
“17. Ocular evidence is considered the best evidence
unless there are reasons to doubt it. The evidence of PW 2
and PW 10 is unimpeachable. It is only in a case where
there is a gross contradiction between medical evidence
and oral evidence, and the medical evidence makes the
ocular testimony improbable and rules out all possibility
of ocular evidence being true, the ocular evidence may be
disbelieved. In the present case, we find no inconsistency
between the ocular and medical evidence. The High Court
grossly erred in appreciation of evidence by holding that
Muddamal No.5 was a simple iron rod without noticing
the evidence that it had a sharp turn edge.”
15.It only says that where there is gross contradiction
between the medical evidence and the oral evidence and the
medical evidence makes ocular testimony improbable and rules
out all possibility of ocular evidence being true, the ocular
evidence may be disbelieved. Here, by way of cross-examination,
nothing has been pointed out that medical evidence falsifies the
ocular testimony.
16.A minor girl of 3 years was subjected to unnatural
intercourse. No previous enmity is brought on record. Absolutely,
no defence is taken or explanation given while answering the
queries under Section 313 of the Code of Criminal Procedure.
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17. In the aforesaid background, application being devoid
of merit, is liable to be dismissed.
18.Accordingly, the application is dismissed.
[RAJNISH R. VYAS, J.]
Choulwar
2 issues framed by the court
Whether concurrent conviction under Section 377 IPC for unnatural offence on a three-year-old victim was perverse or unsupported by evidence.
Whether absence of a definite medical opinion on penetration defeats the charge under Section 377 IPC.
Colour shows how this judgement treated each authority
Kamal Vs. StateDistinguished¶12
(2021) 4 High Court Cases (Del) 309
Pruthiviraj Jayantibhai Vanol Vs. Dinesh Dayabhai Vala and othersDistinguished¶14
(2022) 18 SCC 683 · Who else cites this
2 provisions across 2 enactments
Datta Digambar Ingle
The State of Maharashtra, through Tamgaon Police Station
Grandmother of Victim (minor), Natural Guardian and Informant
RAJNISH R. VYAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court