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
- Code of Criminal Procedure — s. 306, 307, 465
- Prohibition of Child Marriage Act — s. 10, 11
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
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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
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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
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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
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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
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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
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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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