SANDEEP@ SANDESH DIWANJI CHANDNEversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:37780


                                                                   CRIAPPEAL-51-2016
                                                    -1-

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                                   CRIMINAL APPEAL NO. 51 OF 2016

                 .       Sandeep @ Sandesh Diwanji Chandne
                         Age: 26 years, Occu.: Labour,
                         R/o. Deolali Pravara, Tq. Rahuri,
                         Dist. Ahmednagar                         .. Appellant

                               Versus

                 1.      The State of Maharashtra

                 2.      XYZ                                      .. Respondents

                                                   …
                 Mr. Rahul A. Tambe, Advocate for the appellant.
                 Mr. V. S. Badakh, APP for respondent No.1/State.
                 Mr. S. P. Nimbalkar, Advocate for respondent No.2 (Appointed).
                                                   ...

                                        CORAM             : ABHAY S. WAGHWASE, J.
                                        RESERVED ON   : 20-08-2026
                                        PRONOUNCED ON : 21-08-2026

                 JUDGMENT :-


                 1.      Convict for charge under Section 354 of the Indian Penal Code

                 (IPC) and under Sections 7 and 8 of the Protection of Children from

                 Sexual Offences Act (POCSO Act) challenges the judgment and order

                 dated 05-01-2016 passed by learned Judge, Special Court and

                 Additional Sessions Judge, Ahmednagar, in Sessions Case No.154 of

                 2014.
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                 CASE OF PROSECUTION IN BRIEF


2.    Prosecution was launched against present appellant on the

premise that on 10-09-2013, victim a girl of 14 years, went to bring

back the clothes, which were in the courtyard for drying. That time,

it is alleged that, accused embarrassed her from backside and grooped

her. She bite his right hand and freed herself and went and inform

her paternal uncle Bhima Pandit, who set law into motion, on the

basis of which, Crime bearing No.258 of 2013 was registered at

Rahuri Police Station for offence under Sections 452, 354 of the IPC

and under Section 7 read with Section 8 of the POCSO Act.


      After chargesheeting accused, trial was conducted vide Sessions

Case No.154 of 2014, which ended up in conviction vide judgment

and order dated 05-01-2016.


      Dissatisfied by the above conviction, instant appeal has been

preferred.


                           SUBMISSIONS


On behalf of Appellant/Accused :
3.    Learned counsel for appellant pointed out that, occurrence took

place at 03:00 p.m. on 10-09-2013. That, accused was arrested on

the same day at 10:05 p.m. That, in trial Court informant himself has
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not supported prosecution but still his testimony has considered by

the learned trial Court. According to him, PW2 mother of victim is

not eye witness and she has mere hearsay information. He would

strenueously submit that, victim has claimed that she took a bite to

right hand of accused, but even when accused was put to medical

examination, no such bite marks were noticed and therefore, there is

possibility of false implication.   He pointed out that, learned trial

Court merely put into account Section 29 of the POCSO Act for

drawing presumption, but according to him, foundational facts itself

have not been proved by prosecution. On this point, he relied on the

following citations :


I)     Dola Alias Dolagobinda Pradhan and another Vs. State of
       Odisha, (2018) 18 SCC 695.
II)    Navin Dhaniram Baraiye Vs. State of Maharashtra, 2018
       ALLMR (Cri) 4919.
III)   Lakhan s/o Kerbaji Sutare Vs. The State of Maharashtra and
       another, [Criminal Appeal No.445 of 2019 decided by this
       Court Bench at Nagpur on 18-06-2024].
IV)    Pradeep Gulabrao Choudhari Vs. State of Maharashtra and
       another, [Criminal Appeal (Apeal) No.506 of 2026 decided by
       this Court Bench at Nagpur on 18-11-2024].
V]     Balu Vs. State of Maharashtra, [2023 (2) BomCR (Cri) 835].
VI]    Debraj Dutta Vs. State of West Bengal and another , [2026 SCC
       OnLine SC 664].
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4.      As regards to false implication is concerned, he invited

attention of this Court to the answers given by accused to the

questions under Section 313 of the Code of Criminal Procedure,

wherein accused gave explanation about previous quarrel, but the

same to not have been considered by learned trial Court.          He

submitted that, there is no supportive medical evidence also. For all

above reasons, he prays to allow the appeal by setting aside the

judgment and order of conviction.



On behalf of State and Victim :
5.      Learned APP as well as learned counsel appointed to espouse

the cause of victim would support the judgment of trial Court on the

ground that testimony of victim being consistent, was worthy of

credence. They submitted that, though informant uncle resiled, that

much part of his testimony, which was of the use of prosecution, has

been rightly relied by the learned trial Court. According to them,

there is no infirmity or perversity in the impugned judgment so as to

interfere.



     BRIEF ACCOUNT OF EVIDENCE IN TRIAL COURT AND ITS ANALYSIS

6.      Re-appreciated the evidence on record.   Prosecution case in

trial Court was rested on evidence of five witnesses i.e. PW1
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informant, paternal uncle of victim, PW2 mother of victim, PW3

victim herself, PW4 The Head Master i.e. School Authority and PW5

Baband Lande, Investigating Officer.




7.    In view of charge under the POCSO Act, it is first to be seen

whether prosecution in trial Court proved minority of victim.


      PW4 Laxman Shirsath, is Head Master of the school and he

placed on record bonafide certificate carrying date of birth as well as

he carried original register maintained by school on the strength of

which bonafide certificate is issued. He also placed on record school

leaving certificate. Both documents are at exh.25 and 26.



8.    It is fairly settled position that for determining age of a child of

sexual assault, the following documents qualify for consideration and

determination of age.


     (i) the date of birth certificate from the school first
     attended, 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;
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      (iii) and only in the absence of (i) and (ii) above, 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:

      Provided such age determination test conducted on the
      order of the Committee or the Board shall be completed
      within fifteen days from the date of such order.



9.     The Hon’ble Apex Court in the recent case of P.Yuvaprakash v.

State Represented by Inspector of Police, 2023 INSC 676 has declared

that school transfer certificate is not to be accepted for age

determination of a victim under the POCSO Act.



10.    Here, in the light of above legal position, if evidence in hand is

put to scrutiny, it is noticed that firstly, PW1 informant uncle did not

give date of birth of victim and he merely stated that she was 14 years

old. Even victim’s very mother PW2 does not seem to have supplied

date of birth of the victim. PW3 victim has given her date of birth as

23-09-2000. However, PW4 Head Master, who is examined on the

point of age, has placed on record merely extract of admission register

and school leaving certificate.     In the above referred judgment of

Hon’ble Apex Court, such documents do not qualify for consideration

on ascertainment and determination of age. Birth certificate is not
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gathered by PW5 Investigating Officer and therefore, when age is not

proved by adducing conclusive proof or evidence on the point of date

of birth, it cannot be said that victim was a minor.



11.   On the point commission of offence under Section 354 of the

IPC, crucial evidence is that of PW3 victim and she is examined at

exh.20. Regarding the incident, she stated that, one year back at

around 03:00 p.m., she had been to backside courtyard of house of

Bhausaheb Sarode to fetch dry clothes. That time she claims that,

accused came, hold her hands, pressed her breast and therefore, she

took a bite to right hand of accused and thereafter, accused ran away

and she went and informed her mother and paternal uncle.


      While under cross-examination, she answered that, she is not

able to state what is written by Police in her statement. Rest is all

denial.


      However, there is no reason for false implication.      The victim

has immediately rushed and informed her uncle and mother and her

uncle has lodged report exh.31 on the same day. There is nothing in

the cross-examination to show false implication. Therefore, on the

point of outraging of modesty, evidence of victim deserves

consideration.
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                            CONCLUSION


12.   Learned trial court has convicted accused for offence under

Section 354 of the IPC, and has awarded sentence of rigorous

imprisonment for two years and to pay fine of Rs.5,000/-. Applying

the test of proportionality, as conviction is of 10 years back and at

that time, accused was in his early twenties and sword of conviction

hanging over his head since almost a decade, in the considered

opinion of this Court, punishment awarded for outraging modesty is

required to be reduced to rigorous imprisonment for one year.


      As stated above, on careful consideration of record, age of the

victim is not proved by adducing conclusive evidence. Therefore,

charges under POCSO Act does not get gravitated.

      In view of above discussion, the following order is passed :



                               ORDER
I.    The appeal is partly allowed.


II.   Conviction and sentence awarded to the appellant Sandeep @
Sandesh Diwanji Chandne by the learned Judge, Special Court and
Additional Sessions Judge, Ahmednagar, in Sessions Case No.154 of
2014 for offence under Section 7 punishable under Section 8 of the
POCSO Act, is hereby quashed and set aside.
                                                   CRIAPPEAL-51-2016
                                  -9-

III.   Conviction awarded to the appellant Sandeep @ Sandesh
Diwanji Chandne by the learned Judge, Special Court and Additional
Sessions Judge, Ahmednagar, in Sessions Case No.154 of 2014 for
offence punishable under Section 354 of the IPC on 05-01-2016, is
hereby maintained, however, the sentence is modified and reduced
and instead of rigorous imprisonment for two years, he is sentenced
to suffer rigorous imprisonment for a period of one (01) year. There is
no change in fine amount, however, in default to pay fine, he shall
undergo simple imprisonment for further three months.

IV.    Rest of the impugned judgment and order is maintained.

V.     Fees of learned counsel appointed to represent the cause of
respondent No.2, which is to be paid by the High Court Legal Services
Sub Committee, Aurangabad, is quantified at Rs.10,000/- (Rs.Ten
Thousand Only).


                                         [ABHAY S. WAGHWASE, J.]

Later on :

13.    On pronouncement of this Judgment, learned Counsel for the

appellant prays for four weeks time to surrender so as to enable him

to approach the Hon’ble Apex Court.


14.    Considering the above request made by learned Counsel for the

appellant, four weeks time is granted to the appellant to surrender.


                                        [ABHAY S. WAGHWASE, J.]
SPT