Bombay High Court
Xyz vs The State Of Maharashtra And Others on 25 August, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-AUG:23216-DB
10 CriApl No.442.2025
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 442 OF 2025
XYZ
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Appellant : Mr. N. N. Bhagwat
APP for Respondents-State : Mr. S. J. Salgare
Advocate for Respondents No. 2 and 3 : Mr. P. P. More
...
CORAM : NITIN B. SURYAWANSHI AND
SANDIPKUMAR C. MORE, JJ.
Dated : August 25, 2025
ORDER :
-
1. By this appeal under Section 373 of Code of Criminal
Procedure (CrPC) read with Section 413 of Bharitya Nagarik
Suraksha Sanhita (BNSS), the victim / appellant has challenged the
judgment and order of acquittal passed by the learned Extra Joint
District Judge and Additional Sessions Judge (POCSO), Jalna in
Special Case No. 290 of 2021. Both the accused were charged
under Section 363 read with 34 of Indian Penal Code (IPC) and
Section 376(n) of IPC and under Sections 3, 6 read with 5(1) and
16 read with 17 of the Protection of Children From Sexual Offences
(POCSO) Act .
2. It is the case of the prosecution that PW1 / mother of
the victim lodged the FIR alleging that victim was studying in 9 th
standard at DNV school at their village Dahiphal Khandare, Tq.
Mantha, Dist. Jalna. On 17.08.2021 at about 1 pm, when the
informant / PW1 returned to home from her job, her daughter did
not return from the school even after school time. Upon inquiry,
victim's friend told that at about 10.25 am, Rahul / accused No. 1
who said to be victim's relative and his friend Vitthal / accused No.
2 both near came to school and called the victim for taking tea and
the victim went alongwith them on his motorcycle and she did not
return to school. Since the victim could not be found after taking
search, FIR was lodged by PW1 / mother and offence under Section
363 of IPC was registered against both the accused persons. On
28.08.2021, victim's statement was recorded who came alongwith
PW1 / mother to the Police Station. She has stated that both the
accused persons took her on motorcycle first to Sindhkhed Raja
and then accused No. 1 took her to Pune and Mumbai. During this
period from 22.08.2021 to 27.08.2021, Rahul / accused No. 1
maintained physical relations with her by giving her promise of
marriage.
3. Prosecution has examined 7 (seven) witnesses in
support of its case and the Trial Court has acquitted the accused
persons. Hence, the appeal.
4. Heard learned Advocate for the appellant, learned AGP
for the State and learned Advocate for the respondents No. 2 and
3. / accused.
5. Learned Advocate for the appellant strenuously submits
that though the age of the victim was proved, the Trial Court has
erroneously held that prosecution has failed to prove the age. He
submits that there is sufficient medical evidence on record to
convict the accused No. 1 under Section 376 of IPC and under the
POCSO Act. This aspect is not properly appreciated by the Trial
Court.
6. Learned Advocate for the accused on the other hand
supported the impugned judgment and order of acquittal.
7. Learned APP submits that prosecution has proved the
fact that the victim was minor at the relevant time.
8. Perused the record. On perusal of the record, it appears
that the prosecution to prove the fact that the victim was minor at
the relevant time, has relied on the evidence of PW1 - mother and
PW7 - Headmistress. On going through the evidence, it is clear that
there is discrepancy in the evidence of PW1 and PW7 in respect of
as to who give the information about the date of birth of the victim
at the time of her admission in the school. The Trial Court,
therefore, has rightly given benefit of doubt to the accused and has
observed that prosecution has failed to prove that at that relevant
time, victim was minor.
9. Prosecution also relied on the Radiological Bone Age
Assessment Report (Exh. 36) of the victim which shows that the
age of victim was between 15 to 16 years. It is well settled that
there is always error of margin of 2 years in the determination of
age by ossification test and the benefit of the same needs to be
given to the accused. The victim, therefore, appears to be at the
age of discretion.
10. The medical evidence in respect of alleged commission
of rape is also doubtful. In the evidence, Medical Officer has stated
that there was no sign of any recent sexual intercourse. Therefore,
the prosecution has failed to prove the charge under of commission
of rape and sexual assault against the accused. The Trial Court has
rightly appreciated the evidence on record and has acquitted the
accused by a well reasoned order. There is no illegality or
perversity in the findings recorded by the Trial Court. This is not a
fit case to interfere in the impugned judgment and order of
acquittal. The appeal is, therefore, dismissed.
(SANDIPKUMAR C. MORE, J.) (NITIN B. SURYAWANSHI, J.)
Omkar Joshi
