[Cites 12, Cited by 0]
Bombay High Court
Prakash Manikrao Waghmare vs The State Of Maharashta And Another on 15 December, 2025
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
19 CRIMINAL APPLICATION NO. 2785 OF 2025
IN APEAL/883/2025
Prakash Manikrao Waghmare
VERSUS
The State Of Maharashta And Another
...
Mr. Abhinay D. Khot - Advocate [appointed through Legal Aid] for
Applicant
Mr. A. D. Wange - APP for State
Mr. Sujit S. Kulkarni h/f Mr. M. D. Deshpande - Advocate for
Respondent No. 2
...
CORAM : NEERAJ P. DHOTE, J.
DATED : 15TH DECEMBER, 2025
PER COURT : -
1. This is an Application for suspension of sentence awarded
by the learned Special Judge, Jalna, by Judgment and Order dated
18.10.2024 in Special Case No. 193 of 2023, convicting and sentencing
the Applicant/Appellant as follows: -
"ORDER
1. Accused Prakash Manikrao Waghmare, is convicted under section
235(2) of the Code of Criminal Procedure of the offence
punishable under Section 4 of the POCSO Act instead of section 6
of the POCSO Act and is sentenced to suffer rigorous
imprisonment for twenty years and to pay fine of Rs.10,000/- and
in default of payment of fine to suffer S.I. for one year.
2. Accused Prakash Manikrao Waghmare, is convicted under section
235(2) of the Code of Criminal Procedure of the offence
punishable under Section 12 of the POCSO Act and is sentenced
to suffer rigorous imprisonment for one year and to pay fine of
Rs.1,000/- and in default of payment of fine to suffer S.I. for one
month.
3. Accused Prakash Manikrao Waghmare, is convicted under section
235(2) of the Code of Criminal Procedure of the offence
punishable under Section 376(2)(n) of the Indian Penal Code.
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However in view of the sentence passed under section 4 of the
POCSO Act no separate sentence is passed.
4. Accused Prakash Manikrao Waghmare, is convicted under section
235(2) of Code of Criminal Procedure of the offence punishable
under Section 506(Part-I) of the Indian Penal Code and is
sentenced to suffer rigorous imprisonment for one year and to pay
fine of Rs.1,000/- and in default of payment of fine to suffer S.I.
for one month.
5. AccusedPrakash Manikrao Waghmare is hereby acquitted under
Section 235(1) of the Code of Criminal Procedure Code of the
offences punishable under sections 354-D and 376(3) of the
Indian Penal Code.
6. All sentences to run concurrently.
7. Accused is entitled for the set off if any under Section 428 of the
Code of Criminal Procedure for the period which he had remained
behind the bars as under trial prisoner.
8. Out of realised fine amount of Rs.12,000/-, an amount of
Rs.10,000/- (Rupees Ten thousand only) be given to the victim
towards compensation.
9. The muddemal property i.e. Article MO-1 Top,Article MO-2
Leggings and lebel, Article MO-3 Blue colour jeans pant and label,
Article MO-4 Pink colour half sleeves T-shirt and label, Article
MO-5 Light purple colour underwear and label, being worthless,
be destroyed after expiry of appeal period.
10. Copy of this judgment be given to accused free of costs forthwith.
11. A copy of this order be also sent to the District Legal Services
Authority, Jalna recommending appropriate compensation to the
victim.
12. Issue conviction warrant accordingly."
2. The case of the Prosecution as noted in the impugned
Judgment and Order, is reproduced as under: -
"2. The victim is a minor girl and at the time of the incident she was
studying in the 7th std. and was 12 years of age. She and her
younger brother were residing along with their parents.
3. On 03/07/2023, the mother of the victim had attended the
household chores and had prepared the victim and her brother for
school. Victim had refused to go to school as she was not well.
Her mother found that she was tensed. Therefore she had
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enquired with the victim as to why she was not going to school
and not talking. Victim had told her that their neighbour Prakash
Waghmare (accused) was following her since several days. On
05/06/2023 she was having May vacations. When everybody
from the house had gone to the fields she was alone at home.
Accused had come home and enquired about her parents and she
had told accused that they had gone to the fields. Accused had
told the victim that he had some work with her and took her to
his house. He had closed the door of his house and removed the
clothes of the victim and his own clothes and had taken forcible
sexual intercourse with the victim. He had threatened the victim
of dire consequences if she disclosed the incident to anybody. The
victim was scared and had therefore not told anybody about the
incident. On 01/07/2023 accused had gone to the house of victim
as she was alone. He had given her some artificial ear rings and
had again committed forcible sexual intercourse with her twice.
He had told the victim that she should go to his house whenever
he calls her and that she should not go to school. He had also
threatened her to kill her and her family members if she disclosed
the incident to anybody. The informant had taken the victim to
the police station and she has lodged the complaint Exh.1/PW-1.
4. On the complaint lodged by the informant, offence was registered
at C.R.No.185/2023 and it was marked to Police Sub-Inspector
Kadam (PW-4) for investigation. He had gone through the First
Information Report and the complaint. He had visited the spot
and prepared the spot panchanama Exh.P-1/PW-3. He had
obtained the documents regarding the age of the victim. He had
seized the clothes of the victim vide seizure panchanama
Exh.P-3/PW-3. He had arrested the accused and had seized the
clothes of accused vide panchanama Exh.P-4/PW-3. After carrying
out the usual investigation, he had filed the chargesheet against
the accused in this Court, this being the Special Court under the
POCSO Act."
3. It is submitted by the learned Advocate for the Applicant
that there are improvements in the testimony of the Victim and her
mother, who lodged the report. The learned Trial Court discarded the
school record of the Victim and considered the Victim's age as 17 years
on the basis of ossification test. The testimony of the Victim was not of
sterling quality. The Prosecution has not established that the Applicant
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was capable of having sexual intercourse. The Charge was initially
framed for the offence punishable under Section 6 of the Protection of
Children from Sexual Offences Act [for short 'POCSO Act'], however, the
Conviction was recorded for the offence punishable under Section 4 of
the POCSO Act, and no time was given to the Applicant/Appellant to
make submissions in respect of the sentence. When the learned Trial
Court has considered the age of the Victim as 17 years, the punishment
for twenty (20) years for the offence punishable under Section 4 of the
POCSO Act is contrary to law as the said sentence of 20 years would
attract only if the Child is below 16 years of age. The
Applicant/Appellant has a good case on merits. The Applicant/Appellant
is behind the bars for a period of two (2) years and five (5) months.
The Appeal would take its own time and, therefore, the Application be
allowed.
4. It is submitted by the learned APP for the State and the
learned Advocate for Respondent No. 2 that, the ossification test was
conducted after a period of one year from the date of offence and,
therefore, one year will have to be reduced from the age bracket
determined by the ossification test. No questions were put by the
defence to the witnesses that the Appellant was not potent. The Victim
has deposed about the incident against the Appellant who was 35 years
of age at the time of offence. The medical evidence supports the
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testimony of the Victim. While considering the evidence on record, the
learned Trial Court has rightly convicted and sentenced the Appellant
and no case for suspension of sentence is made out.
5. With the assistance of both the sides, I have gone through
the relevant evidence on record. The learned Trial Court in the
impugned Judgment has observed that, the date of birth entered in the
admission register cannot be relied upon as the proof of age of the
Victim. By considering the ossification test report, the learned Trial
Court has considered the age of the Victim as 17 years on the date of
incident. Therefore, it is clear that the Victim was above 16 years of
age. If we consider the provisions of Section 4 of the POCSO Act, the
minimum sentence of imprisonment for commission of penetrative
sexual assault is not less than ten (10) years, which may extend to
imprisonment for life and also with fine. Sub-section 2 of the said
Section provides that, the minimum sentence of 20 years would attract if
the act of penetrative sexual act is committed on the child below the age
of 16 years. Thus, prima facie, I find merit in the submission of the
learned Advocate for the Applicant that, by sentencing the Applicant for
twenty (20) years rigorous imprisonment for the offence punishable
under Section 4 of the POCSO Act, the learned Trial Court misdirected
itself.
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6. The Prosecution has examined the Victim as PW2. Her
testimony show that, her testimony in respect of the incident was an
improvement. The said improvement is on material aspect. Similarly,
the evidence of the mother of the Victim, who was examined as PW1,
who is of course not an eye-witnesses to the incident, show that, her
testimony was also an improvement on material aspect.
7. There is medical evidence brought on record by the
Prosecution through PW5, who examined the Victim on 04.07.2023. He
noted that the hymen was ruptured (old heeled) and he provisionally
opined that, the possibility of sexual intercourse cannot be ruled out. At
the same time, in his cross-examination, it has come that the hymen can
be ruptured by various sports activities. Further, though the
Investigating Officer, who is examined as PW4, deposed that the
Applicant was medically examined, there is no evidence to show that the
Appellant was capable of having sexual intercourse.
8. The Applicant/Appellant is behind the bars for a period of
two (2) years and five (5) months. The Applicant/Appellant has made
out arguable case and prima facie have a good case on merits. In this
view of the matter, I am inclined to pass the following order: -
ORDER
[i] The Application is allowed.
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[ii] The sentence imposed upon the Applicant by the learned
Special Judge, Jalna, vide the impugned Judgment and
Order dated 18.10.2024 in Special Case No. 193 of 2023, is
hereby suspended till the final decision of the Appeal.
[iii] The Applicant be released on bail on his furnishing personal
bond of Rs.15,000/- [Rupees Fifteen Thousand], with one
or two sureties in the like amount.
[iv] The Applicant/Appellant shall cooperate in early disposal of
the Appeal.
[v] Bail before the Trial Court.
[vi] For this Application, the fees of Mr. Khot, learned Advocate
appointed to represent the Applicant, is quantified at
Rs.15,000/- [Rupees Fifteen Thousand], which shall be paid
by the High Court Legal Services Sub Committee,
Aurangabad Bench.
[vii] The Application stands disposed off.
[NEERAJ P. DHOTE]
JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 15/12/2025 19:53:44
