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Bombay High Court

ONKAR TANAJI KALEversusTHE STATE OF MAHARASHTRA AND ANOTHER

Disposal
DISPOSED OFF

Holding

The Court rejected the application, holding that the birth certificate and victim’s testimony sufficiently proved minority and that the father’s testimony was inadmissible, leaving the conviction intact.

Summary

Onkar Kale, a 24‑year‑old student, was convicted by the Special Fast Track Court, Dharashiv, for a serious offence involving a minor victim. He applied to the Bombay High Court, Aurangabad Bench, seeking suspension of his sentence and bail pending appeal, arguing that the prosecution’s evidence on the victim’s age was inadmissible. Specifically, he contended that the victim’s father, who was an accused, could not be examined as a witness unless declared an approver under CrPC ss. 306/307, and that the school records and name discrepancy further weakened the age proof. The State and the victim’s counsel countered that the birth certificate (Exhibit 56) issued by a local body and the victim’s own testimony established the minority, and that the father’s evidence was supplementary. The Court held that the father’s testimony was inadmissible but the birth certificate and victim’s testimony were sufficient, and therefore found no merit in the bail application. Consequently, the application for suspension of sentence and bail was rejected.

Issues considered

  • Whether the testimony of the victim’s father, who is an accused, is admissible without being declared an approver under CrPC ss. 306/307.
  • Whether the birth certificate and school records constitute competent evidence to establish the victim’s minority.
  • Whether bail or suspension of sentence can be granted pending appeal when the conviction rests on evidence of the victim’s age.

Legislation cited

Subjects

  • bail
  • suspension of sentence
  • evidence admissibility
  • child sexual assault
  • minority of victim
  • approver
  • CrPC
  • Prohibition of Child Marriage Act

Judgment

2026:BHC-AUG:43651


                                                                  CrAppln-3662 of 2026
                                                  -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPLICATION NO. 3662 OF 2026
                                          IN APPEAL/937/2025

                 .     Onkar s/o Tanaji Kale
                       Age: 24 years, Occu.: Student,
                       R/o. Police Line, Osmanabad.              ….Applicant

                                Versus

                 1.    The State of Maharashtra
                       (Through Kalamnuri Police Station
                       Hingoli).

                 2.    X.Y.Z.                                    ….Respondent

                                                 …..
                 Mr.Nilesh S. Ghanekar, Advocate for Appellant.
                 Mrs.Chaitali Chaudhari Kutti, APP for Respondent No.1
                 Mr.Shridhar K. Kulkarni Advocate for Respondent No.2.
                                                  .....

                                         CORAM :        ABHAY S. WAGHWASE, J.

                                         Reserved on        : 24 September, 2026
                                         Pronounced on      : 28 September, 2026


                 ORDER :


                 1.    Instant application is for suspension of sentence and grant of

                 bail in consequence to Judgment and order of conviction passed by

                 learned Judge, Special Fast Tract Court, Dharashiv dated 24-11-2025

                 in Special Case No.16 of 2024.
                                                  CrAppln-3662 of 2026
                                 -2-

2.    Learned counsel for applicant apprised this Court about

prosecution story in the trial Court.   He would submit that, here,

there was no conclusive proof on the point of minority of victim. He

submitted that, though PW1 father of victim is examined by

prosecution and through him birth certificate is brought on record, he

would submit that, at the outset, it was not open for the prosecution

to examine father of victim as he himself was arraigned as accused in

this case. Pointing out to this Court charge framed before learned

trial Court, he would submit that, law does not permit accused to act

as a witness of prosecution. On this count, he seeks reliance on the

judgment of the Hon’ble Supreme Court in the case of State of

Maharashtra v. Abu Salem Abdul Kayyum Ansari and Others, 2010

(7) Supreme 226 and Judgment of Hon’ble High Court of Kerala

passed in Abdul Razak @ Abu Ahmed v. Union of India and Others in

Criminal MC No.2917 of 2021 on 25-08-2021, and would submit that,

it was not permissible for prosecution to adduce evidence of accused

No.2, who is PW1 unless he was declared as an “approver” as

required under Section 306/307 of the Code of Criminal Procedure.

That, no such procedure was adopted by prosecution in learned trial

Court and therefore, it is his submission that evidence of PW1 father

of victim on the point of age of his daughter needs to be excluded

from consideration.
                                                    CrAppln-3662 of 2026
                                  -3-

3.    He further submitted that, another piece of evidence on the

point of age was testimony of PW4 Head Master, but he would point

out that, he has placed on record school record of 7 th Standard and

not of 1st standard and moreover, school leaving certificate does not

qualify for consideration on the point of age. It is also his submission

that name of the victim appearing in FIR varies from the name

reflected in the birth certificate and even though there is affidavit of

father, he himself being an accused, any document coming from his

custody cannot be gone into. Thus, according to him, when entire

judgment of learned trial Court is based on above quality of evidence,

which is inadmissible or not permitted, appellant has questioned the

impugned judgment by preferring appeal, but as it may take

sufficiently long time to be heard and decided, and moreover, as it

goes to very root of the case of prosecution and a strong point to be

dealt in appeal, he urges for suspension of sentence.



4.    Learned APP opposed above application and relief on the

ground that on full-fledged trial, conviction has been recorded. That,

serious offence is proved to be committed. That, issue about age

raised here needs complete re-appreciation of evidence, which cannot

be done at the stage of bail or suspension of sentence. According to

her, in view of Judgments of the Hon’ble Apex Court in the cases of
                                                  CrAppln-3662 of 2026
                                    -4-

Kamalanantha and Others v. State of T.N., 2005 AIR SCW 1836 and

Sushil Kumar Tiwari v. Hare Ram Sah and Others. AIR 2025 SC 4828 ,

as well as in view of provisions laid down under Section 465 of the

Code of Criminal Procedure, the above ground has no substance and

moreover, according to her, no such objection was raised before the

learned trial Court and therefore, it is not permissible to raise such

objection now.



5.    Learned counsel for respondent No.2/victim also put up

resistance to the application and relief by pointing out that, serious

offence is proved to be committed. That, prosecution has placed on

record birth certificate at Exhibit 56 reflecting the date of birth of

victim and going by the same and date of occurrence, victim was

apparently below 16 years of age.         According to him, there is

conclusive proof on the point of age of victim. Moreover, victim was

threatened to not to appear in the Court and regarding that complaint

has been also forwarded to the Police, copy of which is placed on

record and considering such conduct of accused, he submits that for

the said reason also, relief cannot be granted as there is high

possibility of misuse of liberty.



6.     Heard. Perused the record.
                                                    CrAppln-3662 of 2026
                                  -5-

7.    Present application is for suspension of sentence and grant of

bail as a result of Judgment and order of conviction rendered by

learned Judge, Special Fast Tract Court against which appeal has

been preferred and the same is pending. From above submissions, it

is emerging that, relief of suspension of sentence and grant of bail is

primarily based on prosecution’s evidence on the minority of victim.

An interesting point has been raised by learned counsel for applicant

that birth certificate has come through PW1 father of victim, but

according to him, he is disqualified from being prosecution witness,

he himself being arraigned as accused.



8.    True it is that going by above referred judgments, prosecution

ought not to have adduced evidence of PW1 father as he apparently

was facing charge for commission of offence under Sections 10 and

11 of the Prohibition of Child Marriage Act. This being the admitted

position, prosecution was not permitted to adduce his testimony

unless he was declared as an “approver” i.e. by complying procedure

Section 306/307 of the Code of Criminal Procedure. However, here

father’s evidence is not the only evidence on the point of age. PW11

Dinkar Shivajirao Gore, Investigating Officer in his evidence at Exhibit

107 in paragraph 14 has testified that birth certificate of victim at

Exhibit 56 was obtained during investigation of crime.        The said
                                                        CrAppln-3662 of 2026
                                     -6-

Exhibit 56 gives date of birth of victim and it is a certificate issued by

Local Body and therefore, it does qualify for consideration on the

point of age. Mere slight variation in the name of victim in FIR and

the one reflected in birth certificate itself is not a good ground to

preclude such evidence from consideration. Victim, who is examined

as PW3, apart from giving her own date of birth, which matches with

the date of birth reflected in birth certificate Exhibit 56, in paragraph

17, has narrated the events of kidnapping her in a vehicle, being

taken to Panvel and there in a room committing forcible penetrative

sexual assault on her. On complete appreciation of evidence, guilt has

been recorded by the learned trial Court.

      Considering the seriousness of crime, which is substantiated by

prosecution, this Court does not find any merit in the application.

Therefore, application deserves to be rejected. Accordingly, following

order is passed :

                                   ORDER

                    Criminal Application is rejected.



                                              [ABHAY S. WAGHWASE, J.]
SPT


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