Bombay High Court

Santosh Bhimrao Wahatule vs The State Of Maharashtra And Another on 17 November, 2025

2025:BHC-AUG:31394
                                                1                      APEAL690.2024.odt
                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD.

                                   CRIMINAL APPEAL NO. 690 OF 2024

               Santosh Bhimrao Wahatule,
               Age : 44 years, Occ- Service,
               R/o. Navnath Nagar, N-11,
               HUDCO, Aurangabad.                                           ...Appellant
                                                                            [Orig. Accused]
                      Versus
               1.     The State of Maharashtra
               2.     XYZ.                                                  ...Respondents
                                                  .....
               Mr. S. J. Salunke - Advocate for the Appellant
               Mr. Bhagwat A. Shinde - APP for the State
               Mr. K. P. Rodge - Advocate (appointed) for Respondent No. 2
                                                  .....
                                                WITH
                                CRIMINAL APPLICATION NO. 3728 OF 2025
                                                .......

                                                 CORAM :      NEERAJ P. DHOTE, J.
                                                 RESERVED ON : 10TH NOVEMBER, 2025
                                                 PRONOUNCED ON : 17TH NOVEMBER, 2025

               JUDGMENT :

1. This is an Appeal against Conviction under Section 374 of

the Code of Criminal Procedure [in short 'Cr.P.C.'] awarded by Special

Judge (POCSO) & Additional Sessions Judge, Aurangabad, in Special

(POCSO) Case No. 33/2019 by Judgment and Order dated 30.07.2024,

convicting and sentencing the Appellant as under : -

"1) Accused Santosh Bhimrao Wahatule is hereby convicted under Section 235(2) of the Code of Criminal Procedure for the offence under Section 354 A of the Indian Penal Code and Section 7 punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and he is sentenced to suffer rigorous imprisonment for 04 (Four years) and also to pay fine of Rs. 10,000/- (Rs. Ten thousand only) in default to suffer simple imprisonment for 06 six months.

2 APEAL690.2024.odt

2) to 7) .........."

2. Heard the learned Advocate for the Appellant, the learned

APP for the State and the learned Advocate for Respondent No. 2 -

Victim. Perused the papers.

3. The Prosecution's case, in brief as revealed from the Police

Report, is as under : -

(i) The Appellant was working as a Manager in Adarsh Nagari Patsanstha, Satara Parisar Branch. He knew the mother of the Victim and vice-versa. The Victim's mother phoned the Appellant on 21.12.2018 in the afternoon around 12:30 pm, in connection with opening the Recurring Deposit [R.D.] account in the said Society.

The Appellant came to the house of the Victim's mother. The Victim was the child aged 16 years and residing with her mother and siblings. The Victim was asked by her mother to prepare Tea. As there was no milk in the house, the Victim's mother went to bring Milk. After the Victim's mother left home, the Appellant talked with the Victim and asked her to bring water and told her to sit beside him. The Appellant caught hold of Victim and tried to kiss her and pressed her chest. The Victim shouted and tried to rescue herself, upon which the Appellant told her to allow him to do the same and he will do the work of her mother. In the meanwhile, the Victim's mother reached home and the Victim was rescued. The Victim informed her mother about the incident. The Appellant ran away by leaving his mobile 3 APEAL690.2024.odt phone and key of his motorcycle in the house of the Victim. The incident was reported to Satara Police Station and Crime bearing No. 553 of 2018 came to be registered for offence punishable under Sections 354 of the Indian Penal Code [for short "IPC"] and offence punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as the 'POCSO Act, 2012"]. The Victim was referred for medical examination. The investigation was done. The spot panchanama was carried out. The Appellant came to be arrested. The document in respect of the age of Victim came to be collected. The statement of witnesses came to be recorded and on completion of investigation, the Appellant came to be Charge-sheeted.

(ii) On committal, the learned Trial Court framed the Charge against the Appellant for the offence punishable under Section 354 of the IPC and Section 8 of the POCSO Act, below Exh. 13. The Appellant denied the Charge and claimed to be tried. To prove the Charge, the Prosecution examined the following witnesses.

[i] PW1 - Rameshwar Motiram Gaikwad, the In-charge Headmaster of the School where the Victim was studying.

     [ii]    PW2 - Victim.
     [iii]   PW3 - Victim's mother.
     [iv]    PW4 - Manoj Ramsing Bahure, the Investigating Officer.

4. After the Prosecution filed Evidence Closure Pursis, the

Statement of the Appellant came to be recorded under Section 313(1) 4 APEAL690.2024.odt

(b) of the Cr.P.C. The Appellant denied the case and the evidence of the

Prosecution. Thereafter, by the impugned Judgment and Order, the

Appellant came to be convicted as above.

5. As the Conviction and the Sentence is for the offence under

Section 7 punishable under Section 8 of the POCSO Act, the Prosecution

is under obligation to prove that, the Victim was the 'Child' as referred

to under Section 2(d) of the POCSO Act, which reads as under:-

2(d) "child" means any person below the age of eighteen years.

6. It is submitted by the learned Advocate for the Appellant

that, the Prosecution failed to establish the date of birth and the age of

the Victim and consequently failed to prove that, the Victim was the

Child. The Mother's name in the Birth Certificate and the Admission

ambiguity. The document in respect of the age and the date of birth of

the Victim was suspicious. The evidence of PW3 nowhere show that, she

submitted the Birth Certificate of the Victim to the School at the time of

admission.

7. It is submitted by the learned APP and the learned Advocate

for Respondent No. 2 that, by examining PW1, the Prosecution has

proved the date of birth and consequently the age of the Victim.

5 APEAL690.2024.odt Moreover, the Mother of the Victim deposed of date of birth of the

Victim. There was no suggestion in the cross-examination in respect of

difference in the name of Mother in the above referred documents i.e.

Birth Certificate and the School Register. There was sufficient evidence

on record to establish that the Victim was a child.

8. To prove the date of birth and the age of the Victim, the

Prosecution examined the In-charge Headmaster of Radhakrushna

Primary School, as PW1. His evidence show that, the school was

running standards 1st to 7th and while admitting the student in their

school in the 1st std., the Application was required to be supported with

birth proof. The admission is given to the student on completion of six

(6) years of age. His evidence show that, he brought the original record

from the school in respect of the Victim. The Victim's date of birth in the

school record was recorded as 27.01.2002. While admitting the Victim

in the school, her parents / guardians had given admission application

form along with Birth Certificate issued by St. Ans Hospital. The copy of

admission application form and the copy of Birth Certificate are brought

on record in the evidence of this witness as Exh. 23 and Article 'A',

respectively. He denied the suggestion that the admission application

was false/fake. Writing 'Babu after father's name in different ink' will

not be sufficient to discard his evidence in respect of the date of birth

which was on the basis of contemporaneous school record. Though he 6 APEAL690.2024.odt was not an In-charge Headmaster of the School at the time of admitting

the Victim, it will not affect the evidence which was based on the record

maintained by the School. The evidence of this witness clearly

established that the date of birth of the Victim was 27.01.2002 and it

was recorded on the basis of Birth Certificate.

9. True that the Victim in her evidence deposed that her date

of birth was 27.02.2002, which is different than the date of birth

recorded in the school record in terms of month. However, that will not

affect the evidence of PW1 as the evidence of Victim in respect of her

own date of birth would be hearsay in nature.

10. The other evidence in respect of date of birth of the Victim

is that, of the Victim's mother, who is examined as PW3. She deposed

that, the date of birth of the Victim was 27.01.2002, which is in

consonance with the date of Birth of the Victim recorded in the School

record. The date of birth of the Victim is not challenged by the defence

in the cross-examination. As regards the submission of the learned

Advocate for the Appellant that the Mother's name mentioned in the

Birth Certificate and the school admission form was different than the

name of PW3, there is no challenge to the said aspect by the defence in

the cross-examination in any manner.

7 APEAL690.2024.odt

11. The above discussed evidence on record show that, the

Prosecution proved the date of birth of the Victim and consequently her

age as required under the law. The incident is of the year 2018. This

show that, in the year 2018, the Victim was more than 16 years but,

below 18 years, and thus it is established that at the time of incident the

Victim was a 'Child'.

12. It is submitted by the learned Advocate for the Appellant

that, the evidence of the Victim was suspicious. Though the evidence on

record show the Police Station was very near to the house of the Victim,

there was delay of sixteen (16) hours in reporting the incident to the

Police and there is no plausible explanation for delay by the Prosecution.

The evidence on record show that, the Victim's Mother was habituated

in lodging false reports. Though the Sister of Victim was at home, she

was not examined by the Prosecution. The medical evidence cannot be

related to the incident. The defence put forth in the cross-examination

was probable. The evidence on record do not establish the Charge. The

Appellant was entitled for acquittal.

13. It is submitted by the learned APP and the learned Advocate

for Respondent No. 2/Victim that, the evidence on record established

the Crime by the Appellant. The Spot Panchanama and the Medical 8 APEAL690.2024.odt Certificate was admitted by the defence before the learned Trial Court.

The medical evidence show injury on the Victim. The learned Trial

Court has properly appreciated the evidence on record and no

interference is called for.

14. The evidence of Victim, who is examined as PW2, show that

the incident took place in the year 2018. On the day of incident, in

between 12:00 pm to 12:30 pm, she was at home. The Appellant was

known to her mother and he came to their residence. The Appellant

was the employee of Adarsha Nagari Sahakari Bank. The Appellant had

come to their house to fill up the form for loan for her Mother. At that

time her Mother and Sister were present. After the Appellant arrived,

her Mother asked her to prepare Tea. As there was no milk, her Mother

went to bring the milk. At that time the Appellant came near her,

pressed her chest and asked for kiss and said that he will provide IT

form to her Mother for loan and demanded sexual favours. She raised

hue and cry. Her mother came home. The Appellant ran away by

leaving his phone and Motorbike. On the next day, they went to the

Police Station. She was sent for medical examination. The Report

lodged by her was brought on record at Exh. 27 and the FIR format at

Exh. 28.

15. The evidence of PW3 i.e. Victim's Mother show that, she 9 APEAL690.2024.odt was residing with her Son and two Daughters. She was having her

account in Adarsh Bank and she wanted to open Recurring Deposit [RD]

account. The Appellant was the Manager of that Bank. The Appellant

came to her house for the purpose of opening the RD account. She

offered water to him and went to bring milk. She returned home after

ten (10) minutes. She found that the Victim was crying. The Victim

took her to the bedroom and narrated the incident to her. She inquired

with the Appellant about the same. The Appellant asked her to forgive

him. She and the Victim beat the Appellant and he ran away. The

neighbouring boys also beat the Appellant. The Appellant left his mobile

and the bike. They went to the Police Station. Before going to the

Police station, the Bank employees asked them not to approach the

Police Station and they talked with each other for some hours and

thereafter, they went to the Police Station and lodged Report.

16. The Victim deposed of the acts committed by the Appellant

with her. The Victim's evidence remained unshaken in the cross-

examination in respect of the incident. The omission to the extent that

the Accused asked for kiss by itself will not be sufficient to discard the

testimony of the Victim as there is no inconsistency in respect of the

other sexual acts deposed by the Victim against the Appellant. She

identified the Appellant before the learned Trial Court. The Injury

Certificate at Exh. 30 is admitted by the defence before the learned Trial 10 APEAL690.2024.odt Court. The said Injury Certificate shows the name of Victim as the

injured person and the date of the examination was 21.12.2018. The

Certificate show 'Blunt Trauma' on the chest and the age of the injury

was within 24 hours, and under the column - Type of probable weapon

used, it is mentioned, 'Hard and Blunt'. This injury corroborate the

testimony of the Victim that the Appellant pressed her chest. The

evidence of the Victim and her mother is consistent on material aspects.

The evidence of Victim's Mother has explained the delay in lodging the

FIR, as she deposed that the bank employees had tried to convince her

not to lodge the Report. Moreover, the evidence of PW4 - Investigating

Officer show that, on the Report lodged by the Victim, Crime No. 553 of

2018 came to be registered, which was marked to him for investigation

and he conducted the Spot Panchanama. The spot Panchanama is at

Exh. 24, which was admitted by the defence before the learned Trial

Court. The Spot Panchanama show that, one black coloured Samsung

Phone of the Appellant was seized from the house of the Victim. This

fortifies the presence of the Appellant in the house of the Victim.

17. The evidence of the Victim show that her Mother had

lodged Report against two persons, namely, Laxman Nawale and

Shriram Uttamrao Nawale, however, Mother of Victim denied that she

lodged Report against persons by name Laxman Nawale and Shriram

Uttamrao Nawale. It has come in the evidence of Investigating Officer 11 APEAL690.2024.odt that, 5 to 6 Non-cognizable Reports and offences were registered with

Satara Police Station against Victim's Mother and others. There is

nothing to show as to under what Sections the said offences were

registered against the Victim's Mother. The evidence of Victim show that

the Appellant lodged Report against her Mother, Prashant Satpute and

Nilesh Bhagyawant with Satara Police Station. The Victim's Mother also

deposed that the Appellant lodged Report against her and others for

extortion. It has come in the evidence of Investigating Officer that the

said report lodged by the Appellant against the Victim's Mother was

after the registration of the present Crime. This lends corroboration to

the evidence of the Victim's mother that, after the incident, when the

Appellant fled, he was beaten by her and neighbouring boys. The

suggestion that the report by the Appellant against the Victim's mother

and other two persons was for snatching of Rs. 10,000/- and his mobile

phone, was denied. The report lodged by the Appellant against the

Victim's mother and two others clearly appears to be counterblast.

18. The above discussed evidence available on record remain

unshaken in the cross-examination. The defence of the Appellant is that

of denial and false implication. Nothing has come in the evidence that

the Victim and her mother were having any reason to falsely implicate

the Appellant. The corroborative evidence in the nature of Injury

Certificate and the Spot Panchanama lend support to the testimony of 12 APEAL690.2024.odt the Victim. The Victim's evidence clearly makes out essential ingredients

for the offence punishable under Section 354A of the IPC i.e. sexual

harassment, and Section 7 of the POCSO Act which is in respect of

sexual assault. Both these Sections read as under: -

S. 354A. Sexual harassment and punishment for sexual harassment-

(1) 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

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

(2) 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.

(3) 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.

7. Sexual assault. -- 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.

19. In alternate submission was made by the learned Advocate

for the Appellant was that, minimum sentence be awarded to the

Appellant. The Victim was above the age of 16 years. The Appellant's

age at the time of offence, as seen from the Charge-sheet, was 38 years.

There is nothing to show that the Appellant was having criminal 13 APEAL690.2024.odt antecedents for the similar offences. Considering all the aspects of the

matter, the nature of the acts and the nature of the offence, sentence of

imprisonment for three (3) years, with fine imposed by the learned Trial

Court, would meet the ends of justice. Accordingly, the sentence of

imprisonment awarded by the learned Trial Court is modified. Hence, I

pass the following order: -

ORDER

[i] The Criminal Appeal is partly allowed.

[ii] The Conviction of the Appellant for the offence punishable under Section 354A of the IPC and Section 8 of the POCSO Act, awarded by the learned Trial Court by the impugned Judgment and Order, is maintained.

[iii] The sentence of Rigorous Imprisonment for four (4) years awarded by the learned Trial Court is modified to three (3) years.

[iv] The fine amount and the default sentence is maintained.

[v] The other operative order of the impugned Judgment is maintained.

                                      [vi]     The R&P be sent back to the Trial Court.

                                      [vii]    The Appeal stands disposed off.