Bombay High Court
Sudhakar Omkar Bunde vs The State Of Mah. Thr. Pso, Ps Tamgaon, ... on 17 March, 2025
2025:BHC-NAG:2624
Judgment
374 apeal593.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.593 OF 2023
Sudhakar Omkar Bunde,
aged about 54 years, occupation - service,
r/o Gayatri Nagar, Telhara,
district Akola. ..... Appellant.
:: V E R S U S ::
1. The State of Maharashtra,
through Police Station Officer,
Police Station Tamgaon,
taluka Sangrampur,
Buldhana.
2. XYZ
Crime No.20/2019,
through Police Station Officer,
PS Tamgaon, tahsil Sangrampur,
district Buldhana. ..... Respondents.
Shri S.V.Sirpurkar, Counsel for the Appellant.
Mrs.Swati Kolhe, Addition Public Prosecutor for
Respondent No.1/State.
Mrs.Sonali Saware, Counsel Appointed for Respondent
No.2/Victim.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 18/02/2025
PRONOUNCED ON : 17/03/2025
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374 apeal593.23
2
JUDGMENT
1. By this appeal, the appellant (accused) has
challenged judgment and order dated 19.8.2023 passed
by learned Additional Sessions Judge, Khamgaon
(learned Judge of the trial court) in Special Case
No.65/2019.
2. By the said judgment and order impugned, the
accused is convicted for offence punishable under Section
10 of The Protection of Children from Sexual Offences
Act, 2012 (the POCSO Act for short) and sentenced to
undergo rigorous imprisonment for 5 years and to pay
fine Rs.1000/-, in default, to undergo further rigorous
imprisonment for 2 months.
He is further convicted for offence punishable
under Section 354 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for 2 years
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374 apeal593.23
and to pay fine Rs.1000/-, in default, to undergo further
rigorous imprisonment for two months.
3. Brief facts of the prosecution case which are
necessary for disposal of the appeal are as under:
The victim girl is six years old and was studying in
school at Pimpari Adgaon, taluka Sangrampur, district
Buldhana. The accused is teacher of victim. As per the
allegations, on 31.1.2019, the victim disclosed to her
father that the accused has called her inside the class
room after the school and pressed her breast. Therefore,
the father of the victim approached the police station and
lodged report. On the basis of the said report, crime is
registered against the accused vide Crime No.20/2019
under Sections 354; 354-A 354-D, and 506 of IPC and 8
and 10 of the POCSO Act.
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374 apeal593.23
4. After registration of the crime, Investigating Officer
has recorded statements of the witnesses, drawn spot
panchanama, referred victim for medical examination,
and after completion of the investigation, submitted
chargesheet against the accused.
5. Learned Judge of the trial court framed the charge
vide Exh.10. On denial of the charge by the accused, the
prosecution has examined in all 5 witnesses, as under:
PW Names of Witnesses Exh.
Nos. Nos.
6. Besides the oral evidence, the prosecution placed
reliance on report Exh.21, FIR Exh.22, statement of the
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374 apeal593.23
informant under Section 164 CrPC Exh.23, statement of
the victim under Section 164 CrPC Exh.24, spot
panchanama Exh.35, requisition to the panchas Exh.50,
requisition to the Magistrate for recording statement of
victim Exh.51, requisition to the headmaster, Zilla
Parishad School Exhs.52 and 53, attendance sheet
Exh.57, birth certificate Exh.59.
7. On the basis of the oral as well as the documentary
evidence, the prosecution claimed that the prosecution
has proved its case. All incriminating evidence is put to
the accused in order to obtain explanation regarding the
evidence appearing against him by recording his
statement under Section 313 of the CrPC. The defence of
the accused is of total denial and of false implication.
8. Heard learned counsel Shri S.V.Sirpurkar for the
accused, learned Additional Public Prosecutor Mrs.Swati
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374 apeal593.23
Kolhe for the State, and learned counsel Mrs.Sonali
Saware for the victim.
9. Learned counsel for the accused submitted that as
per the prosecution case, since 15 days prior to the
incident i.e. 31.1.2019 the victim was sexually harassed
by the accused is falsified by the attendance sheet as
Exh.57 shows that from 18.1.2019 to 24.1.2019 the
victim has not attended the school. The evidence of the
victim shows that she was attending school along with
her cousin. Classes of her cousin and her were taken in
one room. The cousin of the victim is not examined. The
admission during cross examination of the victim falsifies
the story of the prosecution. The foundational facts itself
are not proved by the prosecution. Thus, the prosecution
failed to prove its case beyond reasonable doubt that on
the day of the incident or prior to that, the victim was
subjected for molestation. The material witnesses are not
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374 apeal593.23
examined. Thus, prosecution case becomes doubtful and,
therefore, presumption under Section 29 of the POCSO
Act will not attract.
10. Per contra, learned Additional Public Prosecutor
for the State supported the judgment impugned in the
appeal and submitted that there is no reason for the
victim to falsely implicate the accused in the crime in
question. The victim has narrated the incident
immediately to her father and her father has lodged the
report. At this stage, it would not be reasonable to
disbelieve the victim as the evidence of the victim is at
higher pedestal and no corroboration is required. In view
of that, the appeal is devoid of merits and liable to be
dismissed.
11. The prosecution has examined in all five witnesses.
As far as the age of the victim is concerned, at the time of
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374 apeal593.23
incident, she was 6 years old and at the time of
deposition, she was 10 years old. The age of the victim is
not seriously challenged by the accused. The birth
certificate of the victim also discloses the birth date of the
victim as 6.8.2012. Though the prosecution has not
examined any witnesses on the birth certificate, it is
marked as Exh.59 as it is admissible in evidence in view
of Section 35 of the Indian Evidence Act.
12. The said birth certificate is issued in view of
Sections 12 and 17 of the Registration of Births and
Deaths Act, 1969. As per Rule 9 of the Maharashtra
Births and Deaths Registration Rules 1976, this certificate
is issued by the Sub Registrar acting under the provisions
of the Registration of Births and Deaths Act, 1969. The
Act mandates that the Registrar should discharge duties
in view of Section 7 of the said Act. Section 8 of the said
Act mandates that each head of the house to report birth
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374 apeal593.23
in the family to the Registrar. The Act provides for
maintenance for recording birth and death within local
area. That is how, certificate came to be issued by Sub
Registrar as per the provisions of Sections 12 and 17 of
the Registration of Births and Deaths Act, 1969. The
birth certificate as such is issued by the public officer and
it is a document forming record of the acts of the public
officer and, therefore, the same is a public document
within the meaning of Section 74 of the Indian Evidence
Act and the same is admissible in evidence in view of
Section 77 of the Indian Evidence Act. Section 17 of the
said Act 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
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Birth Register in respect of entry of birth of the victim
child and as such, admissible in evidence. Section 35 of
the Evidence Act makes it clear that if entry is made by
public servant in the official book in discharge of his
official duty, such entry becomes the relevant fact and
admissible in evidence. Section 35 of the Act lays down
that entry in any public, official book, register, record
stating a fact in issue 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.
13. It is thus clear that it is an entry taken by the
public servant in discharge of his official duty while
performing official duty enjoined by law. It is thus clear
that the birth certificate issued by the statutorily
appointed authority or competent authority is relevant
and admissible.
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374 apeal593.23
14. Rule 12(3) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 also states that in
every case concerning a child or juvenile in conflict with
law, the age determination inquiry shall be conducted by
the Court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining- (a) (i)the
matriculation or equivalent certificates, if available; and
in the absence whereof; (ii) the date of birth certificate
from the school (other than a play school) first attended;
and in the absence whereof; (iii) the birth certificate
given by a corporation or a municipal authority or a
panchayat; (b) and only in the absence of either (i), (ii)
or (iii) of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the
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374 apeal593.23
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin
of one year, and, while passing orders in such case shall,
after taking into consideration such evidence as may be
available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii) or
in the absence whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the juvenile in
conflict with law.
15. Now, coming to the evidence of the prosecution
witnesses as to the actual incident, PW1 victim testified
that incident took place when she was in 1 st Std.. After
school is over, she was called by the accused in the class
room and the accused made her to sit on his thigh and
pressed her chest. The accused rolled over his hands over
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her breast because of which she was having pain in her
breast. This act was continued by the accused for 15
days. She has informed the incident to her father.
The evidence of the father of the victim
corroborates the fact that the victim has disclosed the
said incident to him and, therefore, he approached the
police station and lodged the report Exh.21 and Exh.22.
The veracity of the evidence of the victim is tested
through the cross examination. During the cross
examination, she admitted that her cousin is studying in
7th Std. Her class and her cousin's class were used to be
held in one room only. The accused was her class teacher
as well as class teacher of her cousin. She further
admitted that she used to go to school with her cousin
and used to return with her. In absence of her cousin,
her parents used to drop her and pick her from school.
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On the day of the incident, her cousin was present in the
school and they returned from the school together. Her
evidence further shows that when she was in 1 st Std., one
female teacher, three male teachers, and 1 headmaster
were serving in the school. The students of 7th Std. used
to open the locks of class room and after the school,
students of 7th Std. used to lock class room again. She
further admitted that till locking of the class room,
teachers and the headmaster used to remain present in
school premises. When students lock all doors, hand over
the key to the headmaster, the headmaster and teachers
used to leave the school. She further admitted that she
informed the police that the accused asked her to sit on
his thigh, but she is unable to tell why it is not mentioned
in her statement. She admitted that on the day of the
incident, there were sports competition in the school.
During recess, she was playing with her friends and
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cousin and she fell down at the time of playing. As she
fell down, she was taken to the accused and the accused
scolded her for her behaviour.
16. The cross examination of the father of the victim
also shows that the victim used to attend the school along
with her cousin. He shown his inability to say that
whether cousin of the victim was present in the school on
the day of the incident. He was also not aware whether
the victim fell down and sustained the injuries.
17. Thus, the evidence of the victim is to be
appreciated in the light of her attendance sheet. As per
the allegations, she was continuously subjected for sexual
harassment from last 15 days. Exh.57 attendance sheet
shows that she was absent in the school from 18.1.2019
to 24.1.2019.
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18. Thus, the contention of the victim that since last
15 days of the incident, she was subjected for continuous
sexual harassment is falsified by this attendance sheet.
Admittedly, the cousin of the victim who is material
witness is not examined by the prosecution. The
Investigating Officer has admitted during his cross
examination that though he has recorded the statements
of the headmaster, teachers, and students of the school
wherein the victim was studying, none of them are
examined. Even, the cousin of the victim is also not
examined. The Investigating Officer has admitted during
cross examination that the victim has not stated before
him that the accused made her sit on his thigh. Thus,
material omission is brought on record.
19. PW3 Gajanan Nage, has acted as pancha on spot
panchanama. His evidence is formal in nature. Spot
panchanama Exh.35 shows that the alleged spot of
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incident is class room of 1st Std.. The said room was
having door towards western side. The said spot of
incident is bounded as towards north open ground and
class room of 6th Std., towards south open ground and
class room of 4th Std., and towards west ground and gate
of the school.
20. PW4 Dr.Neha Mahale, the Medical Officer, testified
that victim was referred to her for medical examination
and on medical examination, she found abrasion over
chest. She admitted that the abrasion can be possible if
kid fell on ground while playing. The injury certificate
placed on record shows abrasion. However, the Medical
Officer has not noted any swelling on her chest.
21. The evidence of the Investigating Officer narrates
about the investigation carried out by him.
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22. The defence of the accused is of total denial and
false implication. It reveals from the cross examination of
victim that she was scolded by the accused. She has
narrated the incident on 31.1.2019 and her father lodged
report on the same day and the police registered the
offence on the same day at about 11:30 pm. The
material omission brought on record shows that victim
has not disclosed that she was asked to sit on the thigh of
the accused. This omission is vital in nature. From the
cross examination of the victim, it reveals that the victim
was not alone when she approached the accused. The
evidence further discloses that the victim used to be
accompanied by her cousin all time who is studying in 7 th
Std. in the same school. The evidence of the victim
further shows that she along with her cousin used to sit
in the class room.
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23. The cross examination of the victim shatters the
prosecution case for the reason that 7th Std. students used
to close and open class room and teachers were not
leaving the school and the class room is locked and keys
are handed over to the headmaster. The cross
examination further shows that prior to the incident, the
victim was playing along with her friends and also
approached the accused along with her friends. She
specifically admitted that due to fall, her clothes were
tarnished. She sustained injuries. So, the accused sent
her to home with her cousin. This admission itself is
sufficient to show that she sustained injuries due to fall.
24. Thus, the circumstance brought on record clearly
suggests that genesis of the case of the prosecution is not
supported either by direct of circumstantial evidence. On
the contrary, the cross examination clearly dent the
prosecution as the very genesis of the case is affected.
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The independent witness, the cousin sister of the victim,
who used to accompany the victim all the time in school,
is not examined. The allegation, that from last 15 days
she was subjected for sexual assault, is falsified by the
attendance sheet as prior to the alleged incident the
victim has not attended the school at least for 6 days.
25. The evidence of the father of the victim as to
outraging the victim's modesty is also not cogent and
reliable.
26. If the entire evidence is appreciated in the
backdrop of totality of the circumstances, it would show
that the case of the prosecution cannot be accepted as
gospel truth. On the contrary, it creates doubt about
occurrence of the incident. I view of the same, I conclude
that learned Judge of the trial court has failed to consider
these facts and circumstances.
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27. Though there is statutory presumption under
Section 29 of the POCSO Act with respect to the guilty of
an accused, this presumption will not operate when the
prosecution failed to prove some foundational facts in
respect of the case. The presumption under Section 29 of
the POCSO Act is not absolute presumption. It is rebuttal
presumption. The presumption would attract only when
the foundational facts are established by the prosecution
beyond reasonable doubt. The evidence on record must
be sufficient to believe the case of the prosecution there
by supporting the very foundation of the case of the
prosecution.
28. In this case, very foundation of the case of the
prosecution vis-a-vis the charge against the accused has
been and, therefore, the presumption under Section 29 of
the POCSO Act would not attract.
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29. In view of the above observations, the appeal
deserves to be allowed by giving benefit of doubt to the
accused. Accordingly, I proceed to pass following order:
ORDER
(1) The Criminal Appeal is allowed.
(2) The judgment and order dated 19.8.2023 passed by
learned Additional Sessions Judge, Khamgaon in Special
Case No.65/2019 is quashed and set aside.
(3) The accused is acquitted of the offences for which he
was charged and convicted by learned Judge of the trial
court.
(4) As the accused is in jail, he be released forthwith if he
is not required in any other crime cases.
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374 apeal593.23
(5) Fees of learned counsel Mrs.Sonali Saware appointed
for the victim be quantified and the same be paid to her
as per rules.
Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 17/03/2025 16:55:31
