Full Judgment Text
2025:BHC-AUG:36747
1 906APEAL838.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 838 OF 2024
Balaji Mahadu Santre
Age : 23 years, Occu. Labour,
R/o. Babhali, Tal. Dharmabad,
Dist. Nanded. ...Appellant
Versus
1. The State of Maharashtra,
Through the Police Station, Dharmabad,
Tal. Dharmabad, Dist. Nanded.
2. XYZ ...Respondents
.....
Mr. Cedric X. Fernandes h/f Mr. Vinod S. Dhotre – Advocate for the
Appellant
Mr. B. A. Shinde – APP for the State
Mr. Amolkumar Wakode – Advocate for Respondent No. 2 / Victim
..…
CORAM : NEERAJ P. DHOTE, J.
TH
DATED : 19 DECEMBER, 2025
ORAL JUDGMENT : -
1. This Criminal Appeal under Section 374(2) of the Code of
Criminal Procedure is filed against the Judgment and Order dated
01.03.2024 passed by the learned Special Judge (POCSO), Biloli, in
Special Case No. 16/2022, convicting and sentencing the Appellant as
follows:-
“ORDER
1. The accused No. 1 Balaji Mahadu Santre, is held guilty under
Section 235(2) of the Code of Criminal Procedure, 1973 for
the offence punishable under Sections 376(2)(i), 376(2)(n)
of the Indian Penal Code, 1860 and Sections 4, 6, 8 and 12 of
the POCSO Act, 2012.
2 906APEAL838.2024.odt
2. Accused Nos. 1 to 5 are hereby acquitted of the offence
punishable under sections 9 and 10 of the Prohibition of
Child Marriage Act, 2006.
3. Accused No.1 is sentenced to undergo Rigorous
Imprisonment for the period of 10 (Ten) years and to pay a
fine of Rs.10,000/ (Rupees Ten Thousand only) for an
offence punishable under Section 6 the Protection of Children
from Sexual Offences Act, 2012. In default to pay the amount
of fine, he shall suffer rigorous imprisonment for One month.
4. No separate sentence is imposed upon him for the offences
punishable under Sections 376(2)(i), 376(2)(n) of I.P. Code,
Sections 4, 8, and 12 of the Protection of Children from
Sexual Offences Act, 2012.
5. Accused No.1 is in custody from 24.04.2022. He is entitled
for set off under section 428 of Cr.P.Code.
6. Accused Nos. 2 to 5 are called upon to furnish PB and SB of
Rs. 15,000/ each under Section 437A of Code of Criminal
Procedure.
7. Theaccused is apprised of his right to file an appeal against
the judgment of conviction and sentence before the Hon’ble
High Court under Section 374(2) of the Code of the Criminal
Procedure, 1973 within 30 days from the date of the sentence
as provided under Article 115(a) of the Limitation Act, 1963.
8. A certified copy of the judgment be supplied to the accused
No.1 free of cost as provided under Section 363(4) of the
Code of Criminal Procedure, 1973. 9. A copy of the judgment
be sent to the learned District Magistrate, Nanded, under
Section 365 of the Code of Criminal Procedure.
10. A copy of judgment be sent to the Secretary, District Legal
Services Authority, Nanded for considering the case of victim
for grant of compensation under section 357A of Cr.P.Code.
(Dictated and pronounced in open court)”
3 906APEAL838.2024.odt
2. The Prosecution’s case, in brief, as revealed from the Police
Report is that, the Victim was forced to marry with the Appellant by her
mother and her other relatives on 16.03.2022. After the marriage, the
Appellant committed sexual intercourse with the Victim against her
wish. Thereafter, she left the house of the Appellant and came to her
mother’s house. The Mother told her that, the Appellant was her
husband, she should allow him to have sexual intercourse with her. As
the Victim was driven out of the house by her Mother, she lodged the
Report with the Dharmabad Police Station, District Nanded and Crime
bearing No. 111 of 2022 came to be registered against the Appellant and
acquitted co-accused, who were the Mother, Brother, Sister-in-law of the
Appellant and the Mother of the Victim. The Victim was referred for
medical examination. The statement of the witnesses were recorded.
On completion of the investigation, the Charge-sheet came to be filed
against the Appellant and the acquitted co-accused.
3. On committal, the learned Trial Court framed the Charge
for the offences punishable under Sections 376(2)(i) and 376(2)(n) of
the Indian Penal Code [for short ‘IPC’], for the offences punishable
under Sections 4, 6, 8 and 12 of the Protection of Children from Sexual
Offences Act [for short ‘POCSO Act’], against the Appellant and for the
offences punishable under Sections 9 and 10 of the Prohibition of Child
Marriage Act [hereinafter referred to as ‘Child Marriage Act’], against
4 906APEAL838.2024.odt
the acquitted Co-accused Nos. 2 to 5. The Appellant and the acquitted
Co-accused denied the Charge and claimed to be tried. To prove the
Charge, the Prosecution examined in all following five (5) witnesses.
i] The Victim, as PW1.
ii] The Medical Officer, as PW2.
iii] The Villager, as PW3.
iv] The Headmaster of the School where the Victim studied, as
PW4.
v] The Investigating Officer, as PW5.
4. The relevant documents such as Report / FIR, Spot
Panchanama, Medical examination papers and the copy of School
extract, etc., came to be brought on record in the evidence of the
aforesaid witnesses.
5. After the Prosecution closed its evidence, the learned Trial
Court recorded the statement of the Appellant and the acquitted co-
accused under Section 313(1)(b) of the Code of Criminal Procedure.
After appreciating the evidence on record, the learned Trial Court passed
the impugned Judgment and Award acquitting the Accused Nos. 2 to 5
and convicting the Appellant as above.
6. Heard the learned Advocate for the Appellant, learned APP
for the State and the learned Advocate for the Respondent No. 2 /
5 906APEAL838.2024.odt
Victim. Scrutinised the evidence on record.
7. It is submitted by the learned Advocate for the Appellant
that, the Prosecution failed to prove that the Victim was a Child at the
relevant time. The Victim’s evidence show that, she was married to the
Appellant, therefore, the evidence in respect of sexual intercourse will
not be incriminating in nature. The evidence on record goes to show
that, the history was narrated to the Medical Officer by the Woman
Constable and not by the Victim. Unless the Prosecution establishes
their own case, the presumption under Section 29 of the POCSO Act will
not come into play. The learned Trial Court has not properly
appreciated the evidence on record and convicted the Appellant. In
support of his submissions, he cited the judgments in D. Bakkiyaraj
Versus The Inspector of Police, Attur Police Station, Salem District,
Crl.A.No. 171 of 2022, decided on 14.10.2025 AND P. Yuvaprakash
Versus State Rep. By Inspector of Police, Criminal Appeal No(s). 1898 of
2023, decided on 18.07.2023.
8. It is submitted by the learned APP that, the Victim deposed
of her date of birth before the learned Trial Court and the Appellant in
his statement under Section 313 of the Cr.P.C., accepted the said
evidence. To prove the age of the Victim, the Headmaster of the School,
where the Victim was studying, has been examined. The evidence on
6 906APEAL838.2024.odt
record established that, the Victim was the Child at the relevant time.
The presumption under Section 29 of the POCSO Act will come into play
and the Appellant has not examined any defence witness to prove the
contrary. The learned Trial Court has rightly convicted and sentenced the
Appellant and no interference is called for and hence, the Appeal be
dismissed.
9. It is submitted by the learned Advocate for the Respondent
No. 2 / Victim that, as the Prosecution established that, the Victim was
the Child, there was sufficient evidence on record to prove the Charge
against the Appellant and the learned Trial Court has rightly convicted
and sentenced the Appellant and the Appeal be dismissed.
10. When the Prosecution and the Charge is for the offence
punishable under the provisions of POCSO, it is necessary to establish
that the Victim was the Child at the relevant time, as defined under
Section 2(d) of the POCSO Act, which reads as under: -
2(d) “child” means any person below the age of eighteen year.
11. In the above referred Judgments relied upon by the learned
Advocate for the Appellant, it is reiterated that, for proving the age of
the Victim, the provisions of Section 94 of The Juvenile Justice (Care
and Protection of Children) Act, 2015, are required to be considered,
7 906APEAL838.2024.odt
which provides that, the documents for proving the age, such as, i) the
date of birth certificate from the school, or the matriculation or
equivalent certificate from the concerned examination Board, if
available; and in the absence thereof; (ii) the birth certificate given by a
corporation or a municipal authority or a panchayat; (iii) and only in the
absence of above two, age shall be determined by an ossification test or
any other latest medical age determination test conducted on the orders
of the Committee or the Board.
12. In the case at hand, the Prosecution is relying on the
testimony of the Victim and the School record to show that, the Victim
was a Child. Though the Victim has deposed her date of birth in her
substantive evidence, it would be hearsay in nature and therefore not
admissible. Consequently, replying in the affirmative the question no. 5
by the Appellant in respect of the date of birth deposed by the victim
becomes inconsequential and cannot form the basis to establish the
Victim’s date of birth.
13. The other evidence on the aspect of age is that of PW4, who
was the Headmaster of Nutan Vidyalaya High School, Umri, Dist.
Nanded. He appeared in response to the summons and came with the
Admission Register. His evidence show that, the date of birth of the
Victim was recorded as 19.04.2009 in the school record. The copy of
8 906APEAL838.2024.odt
the extract from the Admission Register is brought on record at Exh.
P-112. The cross-examination of this witness completely demolishes the
authenticity/credibility of the date of birth mentioned in the said
Admission Register. His evidence show that, the Victim was admitted in
th
the 6 Std., on 17.02.2021. His evidence in the cross-examination show
that, he was working as the Headmaster in the said school from
01.07.2019. This show that, prior to the admission of Victim in his
School, he was the Headmaster. The said document did not bear his
signature. The said document also did not bear the seal of the school.
The Application for the Admission was not accompanied with the birth
certificate. His evidence show that, the copy of the school leaving
certificate of the Zilla Parishad Kanya Shaha, Umri, was enclosed with
the Application and the date of birth mentioned in the said School
Leaving Certificate was entered in the school record.
14. Undisputedly, the Prosecution has not examined the witness
from the Primary School where the Victim had initially taken admission
and where her date of birth was entered for the first time. There is no
evidence as to on what basis the date of birth of the Victim was entered
in her primary school recorded which she first attended. The evidence
of this witness further shows that he did not call the original papers
from the Zilla Parishad School, Umri. He admits that, Exh. P-112 was
not in his handwriting and the last two columns of the said documents
9 906APEAL838.2024.odt
were blank. He was confronted with the Register and it is brought in
the evidence that, it does not bear the signature or the stamp in the last
two columns. He further deposed that he was not aware on whose
request the transfer certificate was issued to the students from his
school. This evidence on record is not at all sufficient to prove the date
of birth and the age of the Victim. This evidence of the Headmaster
cannot form the basis to establish the same, as source of the date of
birth entered in the school register is not brought on record. The
Prosecution has miserably failed to prove the date of birth and the age
of the Victim and consequently failed to prove that the Victim was the
Child.
15. Coming to the testimony of the Victim, in clear terms, she
deposed that, on 16.03.2022, the acquitted Accused Nos. 3 and 4 had
come to her mother at the Brick Kiln and proposed marriage of the
Appellant with her and accordingly, on 16.03.2022, her marriage was
performed with the Appellant at Village Babhali in front of house of
Accused No. 1. Her further evidence show that, after the marriage,
sexual intercourse was done by the Appellant with her. She deposed
that, it was without her wish. Her evidence further show that, the
acquitted accused Nos. 2 to 4 were residing with them. Her further
evidence show that, she had love affair with one person and was
intending to perform the marriage with that person, however, her
10 906APEAL838.2024.odt
mother told her to perform the marriage with the person from their own
community. This indicate that the Victim was not happy with the
marriage with the Appellant. Under such circumstances, her testimony
that the Appellant had the sexual intercourse with her against her wish
is required to be seen with doubt. In view of the evidence of the Victim
in respect of intercourse, the medical evidence showing old healed
hymen tear will not be incriminating. Her evidence shows that, her
statement was recorded as per the say of the Police. Her further
evidence show that, she had no discussion with the Medical Officer and
the Woman Police had discussed with the Medical Officer.
16. The other evidence is that of Panch witness, who did not
support the prosecution, and the evidence of the Investigating Officer
who deposed about the investigation done by him.
17. The above discussed evidence on record is far from
establishing that the Victim was the Child. The suggestions are given in
the Cross-examination that the Victim was more than 18 years of age at
the time of the incident. There is no dispute that the Appellant was
aged about 21 years at the relevant time. The evidence of the Victim in
respect of the Sexual intercourse by the Appellant will not help the
Prosecution to prove the Charge as the Victim was the wife of the
Appellant as per the evidence of the Victim herself. The Co-accused are
11 906APEAL838.2024.odt
acquitted of the Charge for the offence punishable under the Section of
the Child Marriage Act. When the Prosecution could not establish the
basic ingredients for the offence for which the Appellant was charged,
the presumption under Section 29 of the POCSO Act will not come into
play. On re-appreciation of the evidence available on record, the only
finding which could be recorded is that, the Prosecution failed to prove
the Charge against the Appellant and he is entitled for acquittal.
Hence, I proceed to pass the following order: -
ORDER
[i] The Appeal is allowed.
[ii] The impugned Judgment and Order dated 01.03.2024
passed by the learned Special Judge (POCSO), Biloli, in
Special Case No. 16/2022, convicting and sentencing the
Appellant, is quashed and set aside.
[iii] The Appellant is acquitted of the offences punishable under
Sections 376(2)(i), 376(2)(n) of the IPC and Sections 4, 6,
8 and 12 of the POCSO Act.
[iv] The Appellant is behind the bars. He be released forthwith,
if not required in any other case.
[v] The fine amount if paid by the Appellant, be refunded to
him.
12 906APEAL838.2024.odt
[vi] The muddemal articles be dealt with as per the operative
order of the learned Trial Court.
[vii] Appeal stands disposed off.
[NEERAJ P. DHOTE]
JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 22/12/2025 16:28:52