THE STATE OF MAHARASHTRAversusRINKUSINGH SHIVBAKAS SINGH

                                                                                         02-ALS -13-2024 C2



                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CRIMINAL APPELLATE JURISDICTION

                               APPLICATION FOR LEAVE TO APPEAL (STATE) NO. 13 OF 2024.

                      The State of Maharashtra                                 ...Applicant
                      (through Bhandup Police Station)                         (Orig.
                                                                               Complainant)
                                   Versus
NAVNATH
SITARAM               Rinkusingh Shivbakas Singh
WAGHMARE              Age: 23 Years,
Digitally signed by
                      R/o. Room No.1, Near Buddha Vihar, Near Ideal High
NAVNATH                                                                        ...Respondent
SITARAM               School, Tulshetpada, Bhandup (West) Mumbai
WAGHMARE                                                                       (Orig. Accused)
Date: 2026.09.10                                          ****
18:54:43 +0530
                      Ms. Sharmila S. Kaushik, APP for the Applicant.
                      Ms. Seema Singh for the Respondent, (appointed through Legal Aid).

                                                     CORAM :    M.M. SATHAYE, J.
                                                      DATE :    10th SEPTEMBER, 2026
                      P.C. :

                      1.          The matter arises out of Protection of Children from Sexual
                      Offences Act, 2012, which is referred to as 'POCSO Act'. Indian Penal Code,
                      1860 is hereinafter referred to as ‘IPC’ and Code of Criminal Procedure, 1973
                      is referred to as ‘CrPC’ for short.

                      2.          The State has filed this Application seeking leave to file appeal
                      challenging order of acquittal dated 16.05.2017 passed by the learned
                      Designated Special Court (under POCSO Act), Greater Mumbai in POCSO
                      Case No. 338 of 2014. By the said impugned judgment and order Respondent-
                      accused is acquitted for the offences punishable under Sections 452, 376(2)(i)
                      and 506 of IPC read with section 4 of POCSO Act.

                      3.          The case of the prosecution in short is that the victim is a younger
                      daughter of the informant residing on the first floor of Jagdev Chawl. The
                      entrance of the house is on the ground floor where there is a shutter to climb
                      the stairs. The wife of the informant was suffering from Thyroid and taking



                      Navnath Waghmare                                                       1
                                                                  02-ALS -13-2024 C2



treatment in the KEM hospital. On 29.04.2014, the informant along with his
wife and son went to the KEM Hospital for taking treatment of wife of
informant and their elder daughter also left the house for work in the
morning. On said day, at about 12.00 O' clock noon time, the informant
returned and by opening shutter on the ground floor, reached the house on
the first floor. At that time, he found that victim was lying on bed and she was
very frightened. When informant enquired with the victim, she pointed
towards a curtain in the house. When the informant pulled the curtain, he
saw the Respondent/Accused hiding behind the curtain. On enquiry, the
victim said that when nobody was at home, the Accused had come inside,
threatened the victim and forcibly committed rape. The informant
immediately put a lock on his house and went to call police. When the police
came at home, they arrested accused and report was lodged vide C.R. No. 139
of 2014. Investigation was carried out. The Respondent pleaded not guilty
and claimed to be tried. Defence of Respondent is of total denial and false
implication.

4.          The prosecution examined 11 witnesses, viz. Informant as PW-1,
Victim as PW-2, Panch Witness as PW-3        and PW-4 about clothes seizure
panchnama of victim as well as accused, Panch witness of Spot seizure
Panchnama as PW-5, Medical Officers as PW-6 and PW-7, Lady Police Sub
Inspector as PW-8, Head Constable attached to concerned Police Station as
PW-9, API Investigating Officer (‘IO’ for short) as PW-10, and Headmistress of
BMC School as PW-11. On appreciation of evidence, the learned Judge has
acquitted the Respondent.

5.          Learned APP submitted that the Respondent has been acquitted on
conclusion that the age of the victim is not proved and also that the victim
had consensual sexual relation with the Respondent-accused. She submitted
that as per Section 2(d) of the POCSO Act, 'child' means any person below the
age of 18 years. She submitted that in the present case, school leaving
certificate of the victim shows her date of birth as 10.06.1999. The Victim has



Navnath Waghmare                                                      2
                                                                  02-ALS -13-2024 C2



deposed her date of birth as 24.09.2000 and ossification test shows that
victim was 13 to 15 years of age. Therefore, the victim was minor and
therefore her consent is immaterial in the present case. The birth certificate
was not available and therefore other evidence is produced to prove the age.
That documentary evidence coupled with ossification is conclusive proof of
age. That the victim has stated that she has not consented. That presumption
under Section 29 of the POCSO Act runs against the Respondent-accused.
That the DNA samples/ Chemical analysis           report proves the offence.
Therefore, it is prayed that leave be granted.

6.          On the other hand, learned counsel appearing for the Respondent-
Accused (appointed through Legal Aid) supported the impugned order
contending inter alia that material on record clearly indicates consensual
relationship between parties. She submitted that the evidence regarding age is
inconclusive and therefore the benefit of doubt must be given to the
Respondent, which is already given resulting into acquittal. Therefore, no
interference is required.

7.          I have considered the rival submission and perused the impugned
judgment as well as oral depositions place on record.

8.          At the outset, it is material to note that the date of incident is
29.04.2014, when rape is alleged to have been committed. POCSO Act
provides for definition of 'child' which means any person below the age of 18
years. Victim says date of birth is 24.09.2000, whereas as per the school
leaving certificate the date of birth is 10.06.1999 and Aadhar Card indicates
year of birth as 2000. It has come on record that the entry in the school
register is made only on the basis of the date informed by mother of the
victim and not on the basis of any document. Therefore, variation has been
found in the date of birth. PW-7 Doctor Bhor advised X-ray of wrist, elbow
and pelvic joints. After going through the X-ray report, he has given his
opinion about the age of the victim as between 13 to 15 years. The
ossification report is at (Exhibit-46). He has admitted that the medical opinion


Navnath Waghmare                                                      3
                                                                    02-ALS -13-2024 C2



may differ about age.

9.           It is settled position that the ossification test carries a marginal
error of plus or minus 2 years.

10.          Considering all aforesaid birth dates with variations, even assuming
the best case scenario for Respondent-Accused and considering the earliest
date of birth (10.06.1999), victim would be below 15 years of age on the date
of incident. Also giving benefit of margin plus 2 years going by ossification
test, the age of the victim will be 17 years, which will be still less than 18
years, as per the definition of child provided under POCSO Act.

11.          However, so far as IPC offences are concerned, picture emerging is
different.

12.          After considering the evidence, the learned Sessions Judge has
found that the victim’s house was situated at the first floor and it was situated
at thickly populated area and the victim has admitted that loud sounds from
the ground floor are audible in her house and it is alleged that at the time of
incident she had raised shouts. The learned Judge has held that if it was
against her consent and shouts were raised then neighboring people would
have heard it. The incident has taken place at noon time. It is also the case
that Respondent-Accused has committed rape twice in the past on 23.04.2014
and 24.04.2014, when the parents were not at home and nothing is disclosed
by the victim even to the mother. Learned Judge has held that it is nobody’s
case that Respondent-Accused used any weapon to threaten and then
committed rape. Learned Judge has held that fresh injury marks were not
found on the private parts of the victim and therefore it is difficult to believe
that it was a forceful sexual Act. Though, it is stated that the Respondent-
Accused resisted the act and scratched him with nails, however medical report
of the accused does not indicate any scratch marks. Learned Judge has
observed in statement under Section 164 CrPC, that the victim has stated that
she liked the accused. Victim has admitted that she knew the Accused since 5


Navnath Waghmare                                                        4
                                                                   02-ALS -13-2024 C2



years and he had told her about his family. Overall, it appears that victim
voluntarily kept physical relationship with the Accused.

13.         Considering the material available on record in respect of age of the
victim (with variations) age will be about 15 years as per the documentary
evidence and it will be between the range of 13 to 15 years as per the
ossification test. In Shweta Gulati and Anr. V/s. The State Government of NCT
of Delhi 2018 SCC OnLine Del 10448, learned Single Judge of Delhi High
Court was considering similar issue, where it is held that while determining
the age of the victim on the basis of ossification test, the benefit of doubt
should go to the accused and higher limit under the ossification test should be
considered. In the present case, since the ossification test has rendered the
estimated age between 13 to 15 years, after adding error margin of 2 years on
the higher side, there is clear doubt as to whether the victim was below 16
years of age. Therefore, fulfilling ingredients of Section 376(2)(i) is doubtful.
Therefore, there is no reason to grant leave to file appeal against acquittal so
far as Section 376(2)(i) of IPC is concerned.

14.         Clubbing the apparent consensual relationship between the parties
with the evidence discussed by the Sessions Judge about the entry to the
house in Paragraph No. 36 and victims' admission that she opened the door
for accused and that usually their door is open, ingredients of house trespass
under Section 452 of IPC are not made out. Hence, leave to file appeal in
respect of acquittal under Section 452 also cannot be granted.

15.         However, on the basis of available material in the form of
documentary evidence as well as corroborative ossification test, even
assuming best case for the benefit of doubt and considering the age on the
higher side and adding margin of 2 years, the age of the victim will be 17
years which is below 18 years of age. Hence, the evidence requires scrutiny
again, so far as the offence under Section 4 of the POCSO Act is concerned.

16.         Therefore, the application is partly allowed. The Applicant/State is


Navnath Waghmare                                                       5
                                                                 02-ALS -13-2024 C2



permitted to file appeal challenging the acquittal under Section 4 of the
POCSO Act. However, leave is refused for filing appeal against acquittal under
the sections of IPC.

17.         Action under Section 390 of CrPC or 431 of Bharatiya Nagarik
Suraksha Sanhita, 2023 be initiated for securing presence of Respondent-
Accused.

18.         Application is disposed of in above terms.




                                                   (M.M. SATHAYE, J.)




Navnath Waghmare                                                     6