Ravindra S/O. Laxman Narete vs State Of Maharashtra Thr. Pso Katol ...
2025 Latest Caselaw 4272 Bom

Bombay High Court

Ravindra S/O. Laxman Narete vs State Of Maharashtra Thr. Pso Katol ... on 30 June, 2025

2025:BHC-NAG:6106




              Judgment

                                                            420 apeal471.17

                                          1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                         CRIMINAL APPEAL NO.471 OF 2017

              Ravindra s/o Laxman Narete,
              aged about 25 years, occupation-
              r/o Sonoli, tahsil Katol,
              district Nagpur.                    ..... Appellant.
                                    :: V E R S U S ::
              State of Maharashtra,
              through PSO Katol,
              district Nagpur.                 ..... Respondent.

              Mrs.Sonali Khobragade, Counsel for the Appellant.
              Shri M.J.Khan, Additional Public Prosecutor for the
              Respondent/State.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 24/06/2025
              PRONOUNCED ON : 30/06/2025

              JUDGMENT

1. By this appeal, the appellant (accused) has

challenged judgment and order dated 18.8.2017 passed

by learned Additional Sessions Judge, Nagpur (learned

Judge of the trial court) in Special Child Criminal Case

No.2/2016.

.....2/-

Judgment

420 apeal471.17

2. By the said judgment impugned in the appeal, the

accused is convicted for offences under Sections 354-

A(i) of the Indian Penal Code and 8 of the Protection of

Children from Sexual Offences Act, 2012 (the POCSO

Act) and sentenced to undergo rigorous imprisonment

for 3 years and to pay fine Rs.5,000/-, in default, to

undergo simple imprisonment for two months.

3. Brief facts of the prosecution case emerged from

the police papers and recorded evidence are as under:

A minor girl (the victim), aged 17 years, resident

of Khapa, tahsil Katol, district Nagpur, filed a report on

23.10.2015 alleging that she resides at the said place

and is taking education in 11th Std. at Umri. She returns

home by 1:00 pm. The accused is also from the same

village known as "Balya". On 23.10.2015, at about 1:15

pm, when she returned to bus stop and was proceeding

.....3/-

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along with her cousin by walk towards her house, at the

agricultural field of one Dandare Sir, the accused came

from Sonoli Side on his motorcycle and communicated

her, hold her hands, and expressed that unless and until

she discloses her name, he will not allow her to go and

also expressed that "I love you" and, thereafter, she

rescued herself from his clutches and went home and

disclosed the same incident to her father. On the basis of

the said report, the police registered the crime under

Section 354-A(i) and 354-D(1)(i) of the IPC and under

Section 8 of the POCSO Act.

4. After registration of the crime, the investigating

officer visited the alleged spot of the incident and

recorded statements of witnesses and after completion of

the investigation, he submitted chargesheet against the

accused.

.....4/-

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420 apeal471.17

5. Learned Judge of the trial court framed charge vide

Exh.8, which denied by the accused.

6. In support of the prosecution case, the prosecution

examined in all 5 witnesses namely PW1 the victim vide

Exh.12; PW2 her cousin sister vide Exh.15, PW3 Vijay

Sahare vide Exh.17; PW4 the father of the victim; and

PW5 R.R.Pal the investigating officer vide Exh.24.

7. Besides the oral evidence, the prosecution placed

reliance on report Exh.13, FIR Exh.14, birth certificate

Exh.19, arrest panchanama Exh.25, spot panchanama

Exh.26, and seizure memo Exh.27.

8. After hearing both sides and appreciating the

evidence on record, learned Judge of the trial court held

the accused guilty and sentenced him, as the aforesaid.

Being aggrieved and dissatisfied with the same, the

present appeal is preferred by the accused.

.....5/-

Judgment

420 apeal471.17

9. Heard learned counsel Mrs.Sonali Khobragade for

the accused and learned Additional Public Prosecutor Shri

M.J.Khan for the State. They took me through the record

of the case and the evidence adduced.

10. Learned counsel for the accused submitted that due

to previous enmity, the accused is implicated in the

alleged offence. The age of the victim is not proved.

Though the alleged incident has occurred during day

time, no independent witness is examined by the

prosecution.

To attract the offence under Section 354-A of the

IPC, the prosecution has to establish that there was a

physical contact by the accused with a "sexual intent" or a

"demand" or a "request" for sexual favour or "making

sexual coloured remarks", which are absent in the present

case.

.....6/-

Judgment

420 apeal471.17

The charge under Section 354-D of the IPC is also

not established as there is no evidence to show that the

victim was followed by the accused to force personal

interaction repeatedly despite a clear indication of

disinterest by such a woman.

She submitted that applicability of Section 8 of the

POCSO Act, is also doubtful as Section 7 defines "sexual

assault" means, "whoever, with sexual intent touches the

vagina, penis, anus or breast of the child or makes the

child touch the vagina, penis, anus or breast of such

person or any other person, or does any other act with

sexual intent which involves physical contact without

penetration is said to commit sexual assault".

All these ingredients are absent in the present

crime.

.....7/-

Judgment

420 apeal471.17

11. On going through the judgment impugned in the

appeal as well as the the record of the case, it reveals that

to establish the prosecution case, the prosecution relied

upon the evidence of PW1 victim who stated her age as

17 years at the time of the incident. She has not narrated

her birth date during her evidence. The evidence of the

victim nowhere shows that at the time of the incident, she

was 17 years of age.

12. PW4 the father of the victim stated date of birth of

the victim as 12.5.1999. The alleged incident has taken

place on 23.10.2015. He produced birth certificate of the

victim, which shows birth date of the victim as 12.5.1999.

He has not cross examined on the point of age.

13. Thus, the prosecution has placed on record the

birth certificate which is at Exh.19 issued by the Sub

Registrar, Nagar Parishad, Katol under the provisions of

.....8/-

Judgment

420 apeal471.17

Sections 12 and 17 of the Registration of Births and

Deaths Act, 1969 and Rules 8 and 13 of the Maharashtra

Registration of Births and Deaths Rules. The said birth

certificate shows the date of birth of the victim as

12.5.1999. The names of the parents are mentioned in

the said birth certificate issued by the Sub Registrar. It is

argued that the said birth certificate is not the valid

document as it nowhere mentions who has given the

information about the date of birth to the Nagar Parishad

and, therefore, the said evidence is not sufficient to prove

the age of the victim.

14. As per provisions of Rule 9 of the Maharashtra

Registration of Births and Deaths Rules, 1976, this

Certificate is issued by the Sub-Registrar acting under the

provisions of the Registration of Births and Deaths Act,

1969. Section 7 thereof deals with appointment of

Registrars for each local area comprising the area within

.....9/-

Judgment

420 apeal471.17

the jurisdiction of the Municipality, Panchayat or other

local authority. It is the duty of the Registrar to register

every birth and every death which takes place in his

jurisdiction. This Act mandates that the Registrar should

discharge his duties carefully. Section 8 of this Act

mandates each head of the house to report birth in the

family to the Registrar. The Act provides for maintenance

of register for recording birth and death within the local

area. That is how, certificate came to be issued by the

Sub-Registrar as per provisions of Sections 12 and 17 of

the said Act. The Birth Certificate, as such, is issued by

the Public Officer and it is a document forming the record

of the acts of the Public Officer and therefore the same is

a public document within the meaning of the said term as

per provisions of Section 74 of the Indian Evidence Act,

1872. The same is admissible in evidence by mere

.....10/-

Judgment

420 apeal471.17

production thereof in view of provisions of Section 77 of

the Evidence Act.

15. Section 17 of the Registration of Births and Deaths

Act, 1969, provides for search of Birth Register and

supply of extract thereof by certifying the same by the

Registrar or other authorized Officer. Section 17 of the

said Act provides that such extract shall be admissible in

evidence for the purpose of proving birth or death to

which the entry relates. The Birth Certificate is, in fact,

the extract of Birth Register in respect of entry of birth of

the victim child and as such, admissible in evidence.

Section 35 of the Evidence Act, 1872, makes it clear that

if entry is made by public servant in the official book in

discharge of his official duty, then such entry becomes the

relevant fact and admissible in evidence. Section 35 of

the Indian Evidence Act lays down that entry in any

public, official book, register, record stating a fact in issue

.....11/-

Judgment

420 apeal471.17

or relevant fact and made by a public servant in the

discharge of his official duty specially enjoined by the law

of the country is itself the relevant fact. To render a

document admissible under Section 35, three conditions

must be satisfied, firstly, entry that is relied on must be

one in a public or other official book, register or record,

secondly, it must be an entry stating a fact in issue or

relevant fact; and thirdly, it must be made by a public

servant in discharge of his official duty, or any other

person in performance of a duty specially enjoined by

law. It is, thus, clear that the Birth Certificate issued by

the statutorily appointed competent authority is relevant

and admissible. The birth certificate is a public

document and primary evidence which can be proved by

production in view of Section 77 of the Indian Evidence

Act.

.....12/-

Judgment

420 apeal471.17

16. Thus, as far as aspect of the age is concerned, the

prosecution has proved the age of the victim.

17. In this case, admittedly, the alleged incident,

according to the victim, is dated 23.10.2015, which took

place between 1:00 pm to 1:30 pm.

18. The nature of the evidence of the victim shows that

when she was proceeding along with her cousin, the

accused followed her on motorcycle, insisted her to

disclose her name, caught her right hand, and expressed

words, "I Love You". Thereafter, she went home and

narrated the incident to her father and subsequently,

lodged the report.

During her cross examination, she admitted that

she was not knowing the name of the accused prior to the

incident. Her cross examination shows that the

agricultural field of the accused is situated at Khapa.

.....13/-

Judgment

420 apeal471.17

However, she denied that prior to 15 days of the incident,

a dispute took place between her father and the accused

on account of supplying of water to the field of the

accused.

19. PW2 is cousin of the victim. She has corroborated

the evidence of the victim as to the fact that on the day of

incident, when they were proceeding, the accused came

on motorcycle, insisted the victim to disclose her name,

hold her hands, and expressed that, "he loves her".

Her cross examination shows that the alleged

incident has taken place on traffic road.

Except the above cross examination, nothing is

brought on record.

20. The prosecution further examined PW3 Vijay

Sahare, who testified that on the day of the incident, at

about 1:00 pm, when he reached agricultural field of

.....14/-

Judgment

420 apeal471.17

Dandari Sir, he saw the accused proceeding on

motorcycle who stopped near a girl and caught hands of

one girl.

During cross examination, this evidence is brought

on record as omissions. The cross examination of this

witness shows that the material evidence he stated came

in the form of omissions.

21. PW4 the father of the victim, is not eyewitness. He

stated that the victim has not disclosed name of the

accused.

22. PW5 R.R.Pal, the Investigating Officer, has

narrated about the investigation carried out by him. His

cross examination shows that he has not obtained birth

certificate of the victim from parents.

Rest of the cross examination is in denial form.

.....15/-

Judgment

420 apeal471.17

23. On going through the evidence, the sole question

is, whether this sole incident by itself amounts to

commission of offence punishable under Section 354-A or

354-D of the IPC as well as 8 of the POCSO Act.

24. Section 354-A of the IPC deals with, "sexual

harassment and punishment for sexual harassment".

Before that, Section 354 of the IPC deals with,

"assault or criminal force to woman with intent to

outrage her modesty".

In view of Section 354-A (1) of the IPC, (a man

committing any of the following acts--

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

.....16/-

Judgment

420 apeal471.17

(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Sub-section (2) of Section 354-A of the IPC deals

with any man who commits the offence specified in

clause (i) or clause (ii) or clause (iii) of sub-section (1)

shall be punished with rigorous imprisonment for a term

which may extend to three years, or with fine, or with

both.

Sub-section (3) of Section 354-A of the IPC, states

that any man who commits the offence specified in clause

(iv) of sub-section (1) shall be punished with

imprisonment of either description for a term which may

extend to one year, or with fine, or with both.

25. Thus, in view of definiton provided under Section

354-A of the IPC, whoever assaults or uses criminal force

to any woman or abets or conspires to assault or uses

.....17/-

Judgment

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such criminal force at any woman intending to outrage or

knowing it to be likely that by such assault he will

thereby outerage or causes to be outraged the modesy of

a woman, is said to have committed the offence of sexual

harassment.

26. Any sexual act performed without a woman's

consent constitutes "sexual assault". It includes

unwanted touching of private parts, forced kissing, or

other sexual contact with a woman and modesty involves

acts that are offensive, indecent, or degrading to a

woman's sense of decency and morality. It includes acts

like inappropriate touching, forcible disrobing, indecent

gestures or remarks with the intent to insult modesty.

27. Said Section 354 of the IPC deals with "assault or

criminal force to woman with intent to outrage her

modesty". The said Section states that whoever assaults

.....18/-

Judgment

420 apeal471.17

or uses criminal force to any woman, intending to

outrage or knowing it to be likely that he will there by

outrage her modesty shall be punished with

imprisonment of either description for a term which shall

not be less than one year but which may extend to five

years, and shall also be liable to fine.

28. Admittedly, "modesty" is not defined in the IPC.

However, it refers to indecent propriety of a woman and

conduct. Whoever, intending to insult the modesty of any

woman, utters any word, makes any sound or gesture, or

exhibits any object, intending that such word or sound

shall be heard, or that such gesture or object shall be

seen, by such woman, or intrudes upon the privacy of

such woman, shall be punished with simple

imprisonment for a term which may extend to three

years, and also with fine.

.....19/-

Judgment

420 apeal471.17

The same ingredients to attract the offence must

be fulfilled.

29. Section 354-D of the IPC defines the offence of

"stalking" and it lays down that in order that this offence

is committed, there must be following of a woman and

contacting her or attempting to contact a woman to foster

personal interaction repeatedly despite a clear indication

of disinterest by such a woman or there should be

monitoring of the use by a woman of the internet, email

or any other form of electronic communication.

30. In the present case, allegations are not of use of

any Internet or E-mail. The allegations used against the

accused are that when the victim was proceeding, the

accused contacted her only once and insisted her to

disclose her name and expressed in words, "I Love You".

.....20/-

Judgment

420 apeal471.17

31. A bare perusal of the evidence of prosecution

witnesses nowhere reveals that with a "sexual intent",

these words, "I Love You", are used by the accused.

32. The expression "sexual intent" is a question of fact

and it is to be determined on the basis of the evidence.

33. In order to understand intention of the accused

behind such utterances, one has to look into the entire

evidence of the prosecution.

34. Admittedly, "intention" is inner compartment of

mind of that person and has to be determined from

surrounding facts and circumstances. If somebody says

that he is in love with another person or expresses his

feelings itself would not amount to an "intent" showing

some sort of his "sexual intention". What constitutes

such "sexuality" or "sexual intent" and what is not, is a

question of fact.

.....21/-

Judgment

420 apeal471.17

35. While interpreting "sexual intent", single judge

bench of this court in the case of Bandu Vitthalrao

Borwar vs. State of Maharashtra, thr.PSO, reported in

2016 SCC OnLine Bom 16128 observed that perhaps

understanding generally accepted meaning of words

"sexual" and "intent" will help us in finding out an

answer. Words 'sexual' and 'intent' have not been defined

anywhere in the Act and, therefore, it would be useful to

understand their meaning as are commonly understood

in English language. For this purpose, a reference to the

English dictionary would be useful. In Webster's New

Explorer Encyclopedic Dictionary, 2006th Edition, the

words 'sexual' and 'intent' have been defined on Page

Nos.1683 and 959 respectively as under:

"Sexual" : 1 : of, relating to, or associated with sex or the sexes (sexual differentiation) (sexual

.....22/-

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conflict) 2: having or involving sex (sexual reproduction)",

"Intent" : "1a : the act or fact of intending :

PURPOSE; especially : the design or purpose to commit a wrongful or criminal act (admitted wounding him with intent)., and

b : the state of mind with which an act is done : VOLITION. 2 : a usually clearly formulated or planned intention : AIM 3a :MEANING, SIGNIFICANCE b : CONNOTATION".

36. Thus, the state of mind, must be to establish some

sort of physical contact or must be related to or

associated with sex or indicative of involvement of sex in

the relationship, if it is to be considered as sexual. Words

uttered should be with "sexual intent" associated with

indicative of involvement of sex or physical contact or

expressing sexual overtures. Words expressed "I Love

.....23/-

Judgment

420 apeal471.17

You" would not by itself amount to "sexual intent" as

contemplated by the legislature. There should be

something more which must suggest that the real

intention is to drag in the angle of sex, if the words

uttered are to be taken as conveying sexual intent. it

should reflect by the act.

37. On considering the evidence of the prosecution, in

order to ascertain the state of mind of the accused, there

is not a single circumstance indicating that the accused's

real intention was to establish sexual contact with the

victim. There is no evidence on record showing that

there was any gesture in the nature of "eye expression" or

body language of the accused. Moreover, "utterances" in

question have not been made repeatedly, but it was made

only once. Such being nature of evidence, "utterances"

by the accused addressing the victim and heard by PW2

.....24/-

Judgment

420 apeal471.17

the cousin of the victim are not sufficient to indicate any

"sexual intent" on part of the accused.

38. Even, the offence under section 8 of the POCSO

Act, is not made out as there is no allegation that either

the accused with "sexual intent" touches private part of

the victim described under Section 7 of the POCSO Act

involving physical contact and, therefore, the offence

under Section 8 is also not made out.

39. The "sexual assault" without penetration has not

been proved by the prosecution beyond reasonable

doubt.

40. Learned Judge of the trial court has not considered

the definition of "sexual assault" given under Sections 7

of the POCSO Act and punishment under Section 8 of the

POCSO Act and without considering the true import of

the provision, convicted the accused, which is erroneous.

.....25/-

Judgment

420 apeal471.17

41. Thus, neither offences under Section 354-A and

354-D of the IPC nor under Section 8 of the POCSO Act

are made out against the accused.

42. In the result, the appeal deserves to be allowed, as

per order below:

ORDER

(1) The Criminal Appeal is allowed.

(2) The judgment and order dated 18.8.2017 passed by

learned Additional Sessions Judge, Nagpur in Special

Child Criminal Case No.2/2016 is hereby quashed and

set aside.

(3) The accused is acquitted of offences for which he

was charged and convicted.

(4) The accused be released from the jail forthwith, if he

is not required in any other crime.

.....26/-

Judgment

420 apeal471.17

(5) Fine amount paid, if any, be refused to the accused.

(6) Bail bond of the accused stands discharged.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 01/07/2025 12:57:19