Amit S/O Gautamrao Jogi And 3 Others vs State Of Mah. Thr. Pso Ps Gittikhadan ...
2026 Latest Caselaw 3413 Bom

Bombay High Court

Amit S/O Gautamrao Jogi And 3 Others vs State Of Mah. Thr. Pso Ps Gittikhadan ... on 6 April, 2026

2026:BHC-NAG:5309


                                                      1                               cr.appeal.369.23-J.odt
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    NAGPUR BENCH : NAGPUR


                                    CRIMINAL APPEAL NO. 369 OF 2023



               1. Amit s/o. Gautamrao Jogi,
                  Aged about 41 years,
                  Occupation - Auto Driver,
                  R/o. Kabir Bela Apartment, Flat No.301,
                  Friends Colony, Gitti Khadan, Nagpur.
               2. Swati w/o. Amit Jogi,
                  Aged about 32 years,
                  Occupation - Household,
                  R/o. Kabir Bela Apartment, Flat No.301,
                  Friends Colony, Gitti Khadan, Nagpur.
               3. Minaxi w/o. Sachin Saraf,
                  Aged about 28 years,
                  Occupation - Household,
                  R/o. C/o. Dipak Ghansyam Hepat,
                  Row House No.42, Sainagari, Wani,
                  Tah. Wani, District - Yavatmal.
               4. Simran Rajesh Gupta,
                  Aged about 22 years, Occupation - Nil, ... APPELLANT
                  R/o. C-12/86, Kali Mahal, Pandari Bagh,(The Appellants are in Jail)
                  Varanasi (Uttar Pradesh State).
                              ...VERSUS...
                    State of Maharashtra,
                    Through Police Station Officer,
                    Police Station, Gitti Khadan, Nagpur.                       ... RESPONDENT
              -----------------------------------------------------------------------------------------------
              Mr. R. M. Daga, Advocate for Appellant Nos.1 and 2.
              Mr. M. V. Acharya, Advocate for Appellant No.3.
              Mr. R. H. Rawalani, Advocate for Appellant No.4.
              Mr. Bhagwan M. Lonare, A.P.P. for Respondent/State.
              -----------------------------------------------------------------------------------------------

              CORAM : NEERAJ P. DHOTE, J.
              JUDGMENT RESERVED ON : 29.01.2026
              JUDGMENT PRONOUNCED ON : 06.04.2026.
                              2                      cr.appeal.369.23-J.odt
JUDGMENT :

1. This is an Appeal under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, 'Cr.P.C.') against the Judgment

and Order dated 23.05.2023 passed by the learned Additional

Sessions Judge (Special Judge POCSO Court), Nagpur in Special

Cri. (Child) Case No.159/2022 convicting and sentencing the

Appellant as follows :

"01. The accused nos. 1 to 4 are convicted for the offence punishable under Section 370(4) read with section 34 of the Indian Penal Code vide Section 235(2) of the Code of Criminal procedure and sentenced to suffer rigorous imprisonment for 10 (Ten) years each and to pay fine of Rs. 2,000/-(Rs. Two Thousand) each, in default, to suffer further Rigorous Imprisonment for 03 (Three) months, each.

02. The accused nos. 1 to 4 are convicted for the offence punishable under Section 3 of the Immoral Traffic (Prevention) Act 1956 vide Section 235(2) of the Code of Criminal procedure and sentenced to suffer rigorous imprisonment for 01 (One) year each and to pay fine of Rs.1,000/-(Rs. One Thousand) each in default, to suffer further Rigorous Imprisonment for 01 (One) month, each.

03. The accused nos. 1 to 4 are convicted for the offence punishable under Section 5(1)(d)(i)(ii) of the Immoral Traffic (Prevention) Act, 1956 vide Section 235(2) of the Code of Criminal procedure and sentenced to suffer rigorous imprisonment for 07 (Seven) years each and to pay fine of Rs.1,000/- (Rs. One Thousand) each in default, to suffer further Rigorous Imprisonment for 02 (Two) months, each.

04. All substantive sentences to run concurrently.

05. Seized property i.e. currency notes, be credited to 3 cr.appeal.369.23-J.odt Government, seized mobile phones be returned to owners and rest of the muddemal property, being worthless, be destroyed after appeal period is over.

06. Seized vehicle i.e. four wheeler Nissan Motor, bearing registration No.MH-12/JM-0771 is already given on supratnama to the owner-accused no.3 Minaxi Sachin Saraf, be retained by her, after appeal period is over.

07. Accused nos. 1 to 4 are entitled for set off under section 428 of the Code of Criminal Procedure.

08. Accused nos. 1 to 4 to surrender their bail bonds. Pronounced in open Court."

2. The prosecution's case as revealed from the police report

is as under :

a] On 03.02.2022, the information was received by the social

worker that, prostitution was being carried at one flat in Gittikhadan

area. The social worker went to the said place and made enquiry.

The said information was found to be reliable. The police were

informed. It was decided to send fake customer and raid the said

premises. Accordingly, fake customer was sent to the said place.

After receiving the signal from the fake customer to the raiding team

as per plan, raid was conducted. The Appellant Nos.1 and 2 and the

Victim girl were found in the said flat. On enquiry with the Victim

girl, it was revealed that, the accused No.4 brought her to the house

of the Appellant No.3 and she was forced into prostitution by the

accused persons. The report was lodged and crime came to be

registered with the Gittikhadan Police Station vide Crime 4 cr.appeal.369.23-J.odt No. 68/2022 for the offences punishable under Sections 370, 376

read with 34 of the Indian Penal Code (for short, 'IPC'), for the

offences punishable under Sections 3, 4, 5 and 7 of the Immoral

Traffic (Prevention) Act, 1956 (for short, 'PITA') and for the offences

punishable under Sections 8, 10 and 12 of the Protection of Children

from Sexual Offences Act, 2012 (for short, 'POCSO Act). The Victim

was sent for medical examination. The statement of the Victim was

recorded. The Spot Panchanama was prepared. The statements of

the witnesses were recorded. On completion of the investigation, the

Appellants came to be chargesheeted.

3. The learned Trial Court framed the Charge against the

Appellant for the offences punishable under Section 370 read with 34

of the IPC, for the offences punishable under Sections 3 and 5 of the

PITA below Exhibits-9 and 31. The Appellants pleaded not guilty and

claimed to be tried. To prove the Charge, the prosecution in all

examined following ten (10) witnesses and brought on record the

relevant documents in their evidence. :

i] Aashish B. Masiha, the Social Worker as PW-1,

ii] Vaishali A. Jaiswal, the Social Worker as PW-2,

iii] Dr. Harsha V. Karode, who examined the Victim as PW-3,

iv] Ashok Kumar Singh, the Social Worker as PW-4,

v] Milind K. Kalvit, the owner of the flat as PW-5,

vi] The Victim, as PW-6, 5 cr.appeal.369.23-J.odt vii] Dr. Ashish G. Shedmake, for the age of Victim as PW-7.

viii] Smt. Kavita N. Isarkar, Police Officer attached to the Social

Security Branch as PW-8,

ix] Suhas D. Choudhari, Investigating Officer as PW-9,

x] Vinayak V. Koli, who conducted the investigation after it was

handed over to him from PW-9 as PW-10.

4. After the prosecution filed the evidence closure pursis, the

statement of the Appellant came to be recorded under Section 313

(1)(b) of the Cr.P.C. The Appellants stated that, they were falsely

implicated. Considering the evidence on record, the learned Trial

Court passed the impugned Judgment and Order.

5. Heard the learned Advocates for the Appellants and the

learned A.P.P. for the State.

a] It is submitted by the learned Advocates for the Appellant

Nos. 1 and 2 that, they do not fall in any of the essential ingredients

for the offences under Sections 370 of the IPC. There was no

evidence to attract the provisions of Sections 3 and 5 of the PITA.

Even for the sake of an argument, it is accepted that, it attracts

against the Appellant Nos.1 and 2, it was the first conviction which

provides for minimal sentence. The age of the Victim was not proved.

There was no charge and conviction for the offence punishable under

the POCSO Act. The Victims statement dated 3rd February was not

brought on record. The Victims testimony shows that, she voluntarily 6 cr.appeal.369.23-J.odt engaged in the prostitution. The Appellant Nos.1 and 2 were not

instrumental in bringing the Vitim from Gorakhpur. The Appellant

Nos.1 and 2 only provided the flat. The notification required under

Section 7 of the PITA was not brought on record. Punishment

imposed by the learned Trial Court was not proper.

b] It is submitted by the learned Advocate for the Appellant

No.3 that, it is not proved by the prosecution that, at the relevant

time, the Victim was the minor. No Date of Birth Certificate of the

Victim was brought on record. The age was tried to be proved

through the ossification test. As per the ossification test, the Victim's

age was between 17 and 19 years. The learned Trial Court

erroneously held her to be the minor. The doctor, who conducted the

ossification test on the Victim was not examined. In the history given

to the Medical Officer, the Appellants were not named. The Victim's

evidence was inconsistent. The charge was not proved against the

Appellant No.3. The Victim was already married. There was no

evidence to show that, the Victim was brought at Wani. The evidence

of Victim shows that, her statement was read over to her before the

evidence. The Appeal be allowed. He relied on the decisions in Sat

Paul Vs. Delhi Administration, (1976) 1 SCC 727, Rustam S/o.

Ukarda Jadhao Vs. State of Maharashtra, 2016 All M.R. (Cri) 248 and

Birka Shiva Vs. State of Telangana, 2025 SCC Online SC 1454.

c] It is submitted by the learned Advocate for the Appellant 7 cr.appeal.369.23-J.odt No.4 that, the evidence of the Victim do not show that, any customer

came on 03.02.2022. The customers were not examined. The

evidence of Panch witness shows that, the panchanama was

conducted in the Police Station. The medical evidence do not show

any injury on the Victim. There was no opinion of the Medical

Officer. The date of birth and age of the Victim was not proved by

examining the school Authorities. The Victim's evidence was general.

The name of the Appellant No.4 in the evidence of the Victim was an

omission. The Victim was having 3 mobile phones with her and she

had all the opportunity to flee away. The Statement of the Victim

dated 3rd February was not brought on record. The prosecution failed

to prove that, the Victim was forced into prostitution. Considering

the evidence in respect of ossification test, the Victim was major by

age. The conviction and sentence be set aside. He relied on the

decision in Jaya Mala Vs. Home Secretary, Government of Jammu &

Kashmir and Ors., (1982) 2 SCC 538.

d] It is submitted by the learned A.P.P. that, the Victim was

examined by the prosecution and her evidence shows the

involvement of all the Appellants. The Victim was a poor girl. The

evidence on record proved the charge against the Appellant and the

Appeal be dismissed.

6. As regards the age of the Victim is concerned, the

prosecution relied on the medical evidence of PW-7 Dr. Ashish G. 8 cr.appeal.369.23-J.odt Shedmake. His evidence shows that, he was the Medical Officer at

the I.G.M.C., Nagpur. On 05.02.2022, the Victim was brought for age

estimation. He forwarded the Victim for X-ray and Dental

examination. After the dental examination and radiological

examination reports were received, he examined the Victim

physically and issued the report below Exhibit - 101. The dental

examination report estimated the age of Victim between 14 and 16

years. The X-ray examination report estimated the age of the Victim

between 17 and 19 years. He made physical examination and

estimated the age of the Victim between 16 and 17 years. The cross-

examination of this witness shows that, the dental examination and

radiological examination of the Victim was not conducted by him.

This witness was cross-examined on the aspect of number of teeths

and X-ray. It has clearly come on record in the cross-examination

that, the dental examination report and the report of radiologist was

not on record. He admitted that, he did not have personal experience

of Dental and Radiology Department. It has come in cross-

examination that, he accepted that, the Victim gave her age of 22

years. This is the only evidence led by the prosecution to prove the

age of the Victim. As is clear from the evidence of this witness, his

evidence is of no assistance for the prosecution to prove the age of

the Victim. This medial evidence of the prosecution is not conclusive.

Even if, the said evidence is accepted, considering the error of margin 9 cr.appeal.369.23-J.odt in the age estimation, the possibility of the Victim being major i.e.

above 18 years of age cannot be ruled out. The prosecution failed to

establish that, the Victim was the child and minor as per Section

2(aa) and (cb) of PITA.

7. The conviction is recorded for the offence punishable

under Section 370(4) read with Section 34 of the IPC and for the

offence punishable under Section 3 and 5(1)(d)(i)(ii) of the PITA.

The star witness of the prosecution is the Victim, who is examined as

PW-6. According to her, she was the resident of Barparvababu,

District Gorakhpur in the State of Uttar Pradesh. She was residing

with her mother, uncle, aunt, brother and grand parents. Her father

expired 4 to 5 years ago. Her mother was residing with one person

Bharat Chavhan, who tried to molest her. Her mother did not support

her. She deserted her mother and went to reside with one

neighbouring uncle and aunt. She got acquainted with one

Shatrughan Maur with whom she started residing. She and said

Shatrughan went to Lucknow by bus. In the bus she got acquainted

with Appellant No. 4 Simran Gupta. The phone numbers were

exchanged. She and Shatrughan returned to their home. The Victim

further deposed that, after 3 to 4 days, she received the phone call of

Appellant No.4 Simran Gupta. They used to talk frequently on

phone. One day, Appellant No.4 Simran Gupta made phone call to

her and asked whether she was ready to go with her in the nearby 10 cr.appeal.369.23-J.odt village. When she expressed that, she was not having money,

Appellant No.4 Simran Gupta assured that, she will take care of the

expenses. She sought permission from Shatrughan. She went with

Appellant No.4 Simran Gupta, who told her that, they will return

back home on the next day. Appellant No.4 Simran Gupta brought

her to Wani in Maharashtra State to the house of Appellant No.3

Minaxi Saraf. The Appellant No.3 Minaxi Saraf and Appellant No.4

Simran Gupta forced her into prostitution and she was made to have

sex with many persons. She was at Wani for about 10 days. She

suffered pain and was crying. She asked Appellant No.4 Simran

Gupta to reach her to her house. On the pretext of reaching her to

her house, Appellant No.4 Simran Gupta brought her to Nagpur in

the flat of Appellant Nos.1 and 2 Amit Jogi and Swati Jogi,

respectively. The Appellant Nos.1 and 2 were present with their

children. The Appellant No.4 Simran Gupta left by asking her to stay

in the house of Appellant No.1 Amit Jogi for 2 to 4 days and

thereafter, she will come back to receive her. The Appellant No.1

Amit Jogi and Appellant No.2 Swati Jogi forced her into prostitution

and made her to have sex with many persons. She was present in the

house of Appellant No.1 Amit Jogi for 15 to 20 days. She asked them

to reach her to her house. One day, the police raided the house of

Appellant No.1 Amit Jogi and she narrated entire incident to the

police. The police recorded her statement.

11 cr.appeal.369.23-J.odt

8. In her cross-examination, the Victim admitted that, on the

day of her deposition, she was read over her statement before

entering the witness box. It is further come in the cross-examination

that, the statement given by her to the police was read over to her.

Her evidence that, she was there in the flat for 15 to 20 days was an

omission. The evidence in respect of Appellant No.4 Simran Gupta

was an omission. Her cross-examination further shows that,

Appellant No.3 Minaxi Saraf was not named in her statement.

Though it has come in her cross-examination that, on the next day,

her phone was taken away from her, there is no evidence to show as

to who took away her phone. During her cross-examination, it has

come that, she did not call Shatrughan as the mobile phone was not

with her and the mobile phone was with Appellant No.1 Amit Jogi.

This evidence of the Victim gets falsified in view of Exhibit - 143

Seizure Panchanama brought on record in the evidence of PW-10

Vinayak Koli, the Investigating Officer showing that, the three mobile

phones were seized from the possession of the Victim. The evidence

of PW-8 Kavita Isarkar, the member of the raiding party shows that,

she saw two mobile phones with the Victim. The medical history,

from the evidence of PW-3 Dr. Harsha Karode shows that, the Victim

came to Nagpur on 06.01.2022 with unknown lady from Gorakhpur.

The medical evidence further shows no injuries on the Victim. As it

is clear from the above evidence, the Victim was having three mobile 12 cr.appeal.369.23-J.odt phones and she did not contacted the said Shatrughan Maur or her

mother or her relatives. The evidence of the Victim that, on the

pretext of roaming, she was brought by Appellant No.4 Simran Gupta

and all the Appellants pushed her into prostitution is required to be

seen with doubt.

9. The evidence of PW-1 Aashish Masiha, the Social Worker

shows that, on receiving information that, prostitution was going on

in one flat at Gittikhadan, on 02.02.2022, he went to verify the said

aspect and Appellant No.1 Amit Jogi and Appellant No.2 Swati Jogi

were present in the flat and Appellant No.1 Amit Jogi told him the

rate of Rs.3000/- for prostitution. He returned back to the Police

Station and gave intimation. The cross-examination shows that, his

evidence that, the Appellant No.1 Amit Jogi told him the rate of

Rs.3000/- towards prostitution was an omission. Though he deposed

that, after the information was shared with the police and raid was

conducted, and as per the plan, he handed over an amount of

Rs.3000/- to Appellant No.1 Amit Jogi, the cross-examination shows

that, the said aspect of handing over of Rs.3000/- to Appellant No.1

Amit Jogi was an omission. Though it is deposed by PW-1 Aashish

Masiha that, there were customers present in the flat, there is no

concrete evidence in that regard.

10. Though, the evidence of PW-2 Vaishali Jaiswal shows that,

on 03.02.2022, the Panchanama below Exhibit-74 in respect of bogus 13 cr.appeal.369.23-J.odt punter was prepared by the police and she accompanied the police to

the flat of Appellant No.1 Amit Jogi and Appellant No.2 Swati Jogi

where the raid was conducted and Panchanama below Exhibit - 77

was prepared, her cross-examination shows that, the Spot

Panchanama below Exhibit-77 was prepared in the Police Station.

The evidence of the other witnesses i.e. the landlord of the flat PW-5

Milind Kalvit and the police party do not take the case of prosecution

any further.

11. There is no need to burden this judgment by discussing

the judgments cited by the learned Advocates for the Appellants. The

above discussed evidence on record does not prove the charge against

the Appellants beyond all reasonable doubts. The Victim's testimony

does not inspire confidence and there are omissions on material

aspects. Though it has come in the cross-examination of the Victim

that, her statement was recorded on the very day i.e. 03.02.2022,

according to the learned Advocate for the Appellants, the said

statement is not the part and parcel of the charge-sheet. Due to

reading the previous statement by the Victim before deposition, the

probative value of her testimony gets affected. True that consent of

the Victim is immaterial as can be seen from the provisions under

which the charge was framed, the prosecution's evidence falls short

of attracting the essential ingredients under which the charge was

framed and the conviction is recorded. The evidence brought on 14 cr.appeal.369.23-J.odt record by the prosecution falls short of establishing the charge

against the Appellants. The evidence of the other witnesses is not

sufficient to attract the essential ingredients for the offence under

which the conviction is recorded. Thus, the benefit is to be given to

the Appellants. Hence, the following order :

ORDER

i] The Appeal is allowed.

ii] The conviction and sentence recorded by the learned Additional Sessions Judge (Special Judge POCSO Court), Nagpur in Special Criminal (Child) Case No.159/2022 against the Appellants is quashed and set aside.

iii] The Appellants are acquitted of the charge for the offence punishable under Section 370(4) of the IPC and Sections 3 and 5(1)(d)(i)(ii) of the PITA.

iv] The Appellants are behind bars. They be released if not required in any other offence.

v] The fine amount if paid by the Appellants be refunded.

vi] Record and proceedings be sent back to the learned Trial Court.

(NEERAJ P. DHOTE, J.) RGurnule

Signed by: Mrs. R.M. MANDADE Designation: PA To Honourable Judge Date: 06/04/2026 10:55:59