Gajanan S/O. Shankar Tokse vs State Of Mah. Thr. Pso, Sawangi (M), Tah. ...
2025 Latest Caselaw 5267 Bom

Bombay High Court

Gajanan S/O. Shankar Tokse vs State Of Mah. Thr. Pso, Sawangi (M), Tah. ... on 4 September, 2025

2025:BHC-NAG:8745




              Judgment

                                                               462 apeal447.23

                                             1

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

                         CRIMINAL APPEAL NO.447 OF 2023

              Gajanan s/o Shankar Tokse,
              aged : 56 years, occupation : labour,
              r/at Village - Neri, tahsil and district
              Wardha.                                    ..... Appellant.

                                    :: V E R S U S ::

              1. State of Maharashtra,
              Through PSO Sawangi (M), Tahsil and
              District Wardha.

              2. XYZ (victim) through her father in
              Crime No.552/2020 registered PSO,
              Sawangi, District Wardha.           ..... Respondents.

              Shri M.V.Rai, Counsel for the Appellant.
              Shri C.A.Lokhande, Additional Public Prosecutor for the
              State.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 04/08/2025
              PRONOUNCED ON : 04/09/2025

              JUDGMENT

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

challenged judgment and order dated 21.6.2023 passed

.....2/-

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462 apeal447.23

by learned Special Judge (POCSO Act), Wardha in

Special (Ch.Act) C.No.6/2021.

2. By the said judgment impugned in the appeal,

the accused is convicted for offence under Section 9(m)

punishable under Section 10 of The Protection of

Children from Sexual Offences Act, 2012 (the POCSO

Act) and sentenced to suffer rigorous imprisonment for 5

years and to pay fine Rs.3000, in default, to suffer simple

imprisonment for 3 months.

He is also convicted for offence punishable under

Section 342 of the IPC and sentenced to suffer rigorous

imprisonment for 6 months and to pay fine Rs.1000, in

default, to suffer simple imprisonment for 15 days.

3. Brief facts necessary for disposal of the appeal

are as under:

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462 apeal447.23

The informant is the father of the victim who

lodged report at Sawangi Meghe Police Station on

19.11.2020 alleging that on 19.11.2020, he along with

his wife left the house for attending the work. His three

daughters were at home. The victim, who is his daughter

aged about 8 years old, disclosed to him that she was

called by the accused at about 2:00 pm to 3:00 pm on

the pretext of bringing biscuits and chocolates and shut

the door of the house and attempted to disrobe her by

paying her Rs.10/- and outraged her modesty. On the

basis of the said report, the police registered the crime

under Sections 354(B) and 342 of the IPC and under

Sections 7 and 8 of the POCSO Act.

4. After registration of the crime, the investigating

officer has visited the alleged spot of the incident and in

presence of panchas drawn spot panchanama. The

accused was arrested. The bona fide certificate of the

.....4/-

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462 apeal447.23

victim was collected from her school. The birth certificate

of the victim was also collected. After completion of the

investigation, the investigating officer submitted

chargesheet against the accused.

5. Learned Judge of the trial court framed the

charge against the accused vide Exh.50. The contents of

the charge are read over and explained to the accused.

The accused denied the charges and claimed to be tried.

6. In support of the prosecution case, the

prosecution has examined in all eight witnesses, as

follows:

     PW                   Names of Witnesses                  Exh.
     Nos.                                                     Nos.







                                                                .....5/-
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                                                462 apeal447.23

7. Besides the oral evidence, the prosecution placed

reliance on requisition letter Exh.21, intimation letter

Exh.22, spot panchanama Exh.23, report Exh.29, FIR

Exh.30, letter Exh.37, bona fide certificate Exh.38, arrest

panchanama Exh.60.

8. The entire incriminating evidence was put to the

accused in order to obtain his explanation by recording

his statement under Section 313 of the CrPC. The

defence of the applicant was of false implication due to

previous enmity.

9. After recording the evidence, learned Judge of

the trial court held the accused guilty and convicted him

as the aforesaid.

.....6/-

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462 apeal447.23

10. Heard learned counsel Shri M.V.Rai for the

accused and learned Additional Public Prosecutor Shri

C.A.Lokhande for the State.

11. Learned counsel for the accused submitted that

on the basis of false and baseless allegations, the accused

is implicated. The evidence adduced by the prosecution is

not inspiring the confidence and the case of the

prosecution is shattered during the cross examination.

The evidence on record shows that the alleged incident

took place during the lock-down. The victim and PW7 her

sister specifically admitted that their parents never

allowed them to leave the house. The victim specifically

admitted that she has not visited anybody's house on the

day of the incident. She further admitted that the

accused and her father were not on talking terms. She

further admitted that there was anger in mind of her

father and they all are against the accused, which can be

.....7/-

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462 apeal447.23

reason to implicate the accused falsely. He submitted that

though the area where the accused was residing is exactly

behind the house of the complainant. No independent

witness is examined to show that anybody has noted the

presence of the victim at the house of the accused. The

evidence on record shows that the shops remained to be

closed after 12:00 pm during lock-down. Therefore, the

story narrated by the witnesses that the victim was called

for bringing biscuits and chocolates itself is false. Learned

Judge of the trial court has wrongly relied upon the

evidence of the victim which is not inspiring the

confidence. Therefore, the judgment impugned in the

appeal deserves to be quashed and set aside.

12. Learned Additional Public Prosecutor for the

State supported the judgment impugned in the appeal

and submitted that the evidence of the victim is

corroborated by PW6 sister-in-law of the victim and PW7

.....8/-

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462 apeal447.23

sister of the victim. There is no reason for the prosecution

witnesses to implicate the accused falsely. The

prosecution has proved the facts that the accused has

called the victim; attempted to disrobe her, and outraged

her modesty. He invited my attention to the evidence of

PW2 the father of the victim, PW4 the victim, PW6 the

sister-in-law of the victim, and PW7 the sister of the

victim and submitted that the evidence of the witnesses is

corroborated by these witnesses. The age of the victim is

also proved by documentary evidence as well as the

evidence of PW3 the teacher. Thus, the evidence adduced

by the prosecution is consistent and reliable. Therefore,

no interference is called for and the appeal deserves to be

dismissed.

13. The accused is charged on allegation on

19.11.2020, in absence of father and mother, the victim

along with her sisters was at home. The accused, residing

.....9/-

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462 apeal447.23

behind the house of the father of the victim, called the

victim at 2:00 pm to 3:00 pm on the pretext of bringing

biscuits and chocolates and attempted to disrobe her and

outraged her modesty. To support the said allegations,

the prosecution mainly placed reliance on the evidence of

PW2 the father of the victim, who testified that on

19.11.2020 his three daughters were at home and the

victim's age is 8 years. He narrated the birth date of the

victim as 28.9.2012. As far as the evidence as to the birth

date of the victim is concerned, the same is not shattered

during the cross examination.

14. To prove the age of the victim, the prosecution

has examined PW3 Archana Kombe, who was serving as

teacher in the Zilla Parishad School at Neri. She testified

that the victim is studying in 4th Std.. As per the bona

certificate prepared on the basis of the documents, the

birth date of the victim is 28.9.2012. Though she is cross

.....10/-

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462 apeal447.23

examined at length, except the admission that in absence

of documentary evidence, she cannot tell firmly whether

birth date of the victim was entered in register or not, she

admitted that it is necessary to take birth certificate of

student while giving admission in school.

15. PW5 Mohd.Avej Sheikh, examined vide Exh.46,

states in his evidence that he received requisition from the

police to furnish the birth certificate of the victim and

accordingly he issued birth certificate in crime

no.552/2020. As per the record, birth date of the victim

is 28.9.2012. Verified copy of the relevant extract and

birth certificate is at Exh.50. Though he is cross

examined, nothing is brought on record to falsify the

version that victim's birth date is 28.9.2012.

16. As per provisions of Rule 9 of the Maharashtra

Registration of Births and Deaths Rules, 1976, this

.....11/-

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462 apeal447.23

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

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

.....12/-

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462 apeal447.23

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

production thereof in view of provisions of Section 77 of

the Evidence Act.

17. 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

.....13/-

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462 apeal447.23

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

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

.....14/-

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462 apeal447.23

production in view of Section 77 of the Indian Evidence

Act.

18. To prove the allegation of outraging the

modesty, the evidence of the PW2 the father of the victim

shows that on the day of the incident, at 5:00 pm, the

victim narrated the incident to him that she was called by

the accused, the accused paid her Rs.10/- and asked her

to sit on bed and attempted to disrobe her by removing

her frock. She pushed him and ran away from the house.

During the cross examination, some material omissions

are brought on record that he has not stated before the

investigating officer that the victim has disclosed to him

that she said "no" to the accused and the accused started

forcing on the victim. His further cross examination

shows that there are cordial relations between him and

his neighbours. The accused is residing at the backside of

his house. His house is surrounded by other houses.

.....15/-

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462 apeal447.23

There was no concerned between him and the accused

any time. He has already informed his daughters not to

go with unknown persons. He admitted that the alleged

incident has taken place during lock-down. During the

said period, nobody was allowed to leave the house.

19. PW4 the victim has also narrated the entire

incident during her evidence. She testified that on the

day of the incident she was at home. At about 2:00 pm to

3:00 pm, the accused called her in his house. She went to

his house. The accused gave her Rs.10/- for bringing

chocolates and biscuits and asked her to sit on bed. He

closed door of the house and sat near to her and tried to

remove her frock. Though she refused him, he tried to

remove. She pushed him and opened the door and she

narrated the incident to her sister and her sister told the

incident to her parents. During her cross examination,

she admitted that in November 2020, there was lock-

.....16/-

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462 apeal447.23

down. At that time, all people used to remain in home.

There are houses adjacent to her house. Neighbours were

at house at the relevant time. Due to Corona, nobody

used to go outside the house. Her elder sister was looking

after her and younger sister. Her parents told her elder

sister not to allow them to go anywhere alone. Wherever,

she and her younger sister used to go, her elder sister

used to accompany them. She had good relationship with

her sister-in-law. Her sister-in-law used to reside adjacent

to her house. On the day of the incident, her sister-in-law

was at her house. Whenever she went, her sister was

with her. Her further cross examination shows that

during the Corona period, shops used to be remained

close from 7:00 am to 10:00 am. In the village, shops

were closed after 10:00 am. She was aware about the

facts that after 10 am, she was instructed by her parents

not to take chocolates or biscuits from any unknown

.....17/-

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462 apeal447.23

persons. She is not acquainted with the accused. She did

not tell the name of the accused to anybody. Her father

told the name of the accused to the police and action was

initiated. She further admitted that mobile was kept with

her sister. Her elder sister did not immediately make

phone call to her parents for informing. She further

admitted that for proceeding to the house of the accused,

she has to go by main road as his house is at the backside

of her house. She specifically admitted that prior to the

incident her father and the accused were not on talking

terms with each other. There was anger in mind of her

father and they all were against the accused.

20. In the light of the above cross examination, if

the evidence of PW6 sister-in-law of the victim is

considered, it shows that on the day of the incident she

has seen that when the victim was proceeding towards

her house, the victim was crying. She called the victim

.....18/-

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and asked her what had happened. The victim told her

that the accused called the victim at his house for

bringing chocolate and biscuit; took the victim inside his

house, made her to sit on bed, closed the door from inside

and he tried to remove clothes of the victim. The accused

also removed his shirt. She further stated that the victim

told her that she shouted and ran away by opening the

door. Her cross examination also shows that the incident

occurred during Corona period. Due to Corona, people

used to remain in the house and as per the Government

guidelines, shops used to be closed at 11:00 am. The

omissions are brought on record that she has not stated

before the police that the accused removed his shirt,

which is not appearing.

21. The evidence of PW7 the sister of the victim

shows that the victim was called by the accused and after

some time, the victim came crying and disclosed that the

.....19/-

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accused attempted to remove her clothes. She pushed the

accused and ran away from his house. She also admitted

that the alleged incident has taken place during the

Corona period when nobody was allowed to go out of the

house. She admitted that she never allowed her sisters to

go alone. She has not made phone call to her father after

the victim disclosed the same incident to her.

22. On appreciating the evidence, it reveals that

the alleged incident has taken place during the lock-down

when nobody was permitted to visit each other's houses.

The victim specifically admitted that she has not visited

anybody's house on the day of the incident and she was

along with her sister. She went to the shop along with

her sister.

.....20/-

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23. Thus, as far as the case of the prosecution is

concerned, that she went at the house of the accused, is

shattered during the cross examination.

24. The cross examination further shows that the

shops remained to be closed after 10:00 am in the

villages. The cross examination further shows that the

victim was not knowing the accused. Thus, this evidence

sufficiently shows that name of the accused was informed

to her by her father. Her admission further shows that

there were no talking terms between her father and the

accused. If this admission is taken into consideration,

there was no reason for the victim to visit the house of the

accused.

25. To corroborate the evidence of the victim, the

prosecution has examined PW6 the sister-in-law of the

.....21/-

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victim whose evidence is not consistent with the evidence

of the victim.

26. The evidence of the victim is silent on the

aspect that the accused removed his clothes at the time of

the incident. Whereas, PW7 the sister of the victim

narrated that the victim disclosed to her that the accused

removed her clothes and also removed his clothes and the

victim shouted and ran away by opening the door of the

house of the accused.

27. Thus, there is material improvement by PW6

the sister-in-law of the victim. The evidence of the victim

and PW7 the sister of the victim is also not consistent.

28. If these evidence is appreciated, in the light of

the evidence of PW1 pancha on spot Gangadhar Nagrale,

it would show that he has stated that he acted as a pancha

and in his presence the panchanama of the house of the

.....22/-

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accused was drawn. During cross examination, he stated

that the police had seen main door from outside and

inside in their presence. There was bolt at upper side of

door from inside. Said door was more than 5 feet in

height.

If the evidence of the said witness is

considered, in the light of the evidence of the victim, that

she opened the door and ran away, which is highly

improbable as the victim is eight years old girl. Moreover,

the presence of the victim is not noted by any person

though the house of the accused is surrounded by many

houses. The spot panchanama also shows that the house

of the accused is surrounded many houses. Adjacent to

the house of the accused, there were houses of one

Chandrakala and Mohan Watkar. The alleged spot of the

incident was shown in the room of the house which is

facing towards porch of the house.

.....23/-

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462 apeal447.23

29. The accused is charged under Sections 7 and 8

of the POCSO Act. The Sections are reproduced for the

purposes of reference:

"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.

8. Punishment for sexual assault.--Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine."

30. Section 7 of the POCSO Act defines as to

offences of sexual assault. It provides that a persons is

.....24/-

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said to commit sexual assault if he 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. It provides punishment if whoever,

commits sexual assault, shall be punished with

imprisonment of either description for a term which shall

not be less than three years but which may extend to five

years, and shall also be liable to fine.

31. On appreciation of the evidence, there is no

allegation as to the physical touch to the private part of

the victim.

32. In fact, the prosecution has not proved

foundational facts that the victim was called by the

accused and she was subjected for sexual assault as the

.....25/-

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evidence of the victim is shattered during cross examination

which sufficiently shows that the evidence on record is not

inspiring the confidence to prove the charges against the

accused. The admission of the victim during cross

examination is that she has not visited anybody's house on

the day of the incident; due the lock-down nobody was

permitted to leave the house; and wherever she used to go,

her sisters were along with her, which raise doubt about the

prosecution case. PW8 Investigating Officer Priti Ade has

also admitted that she has not recorded statement of

independent witness residing near the house of the accused.

33. Thus, the evidence on record falls short to prove

the charges against the accused. The presumption under

Section 29 of the POCSO Act will attract only on proof of

foundational facts. As the evidence of the prosecution

witnesses is not inspiring confidence, the judgment

impugned in the appeal based upon the evidence, which is

.....26/-

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462 apeal447.23

not sufficient to convict the accused, deserves to be quashed

and set aside.

34. In this view of the matter, I proceed to pass

following order:

ORDER

(1) The Criminal Appeal is allowed.

(2) The judgment and order dated 21.6.2023 passed by

learned Special Judge (POCSO Act), Wardha in Special

(Ch.Act) C.No.6/2021 is hereby quashed and set aside.

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

charged and convicted.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 04/09/2025 19:08:46