[Cites 13, Cited by 0]
Bombay High Court
Dhondiram @ Kailas Jagannath Shinde vs The State Of Maharashtra And Another on 6 February, 2026
2026:BHC-AUG:5775
1 903Cri.Appeal.239.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 239 OF 2024
WITH
CRIMINAL APPLICATION NO. 3488 OF 2025
IN APEAL/239/2024
Dhondiram @ Kailas Jagannath Shinde,
Age. 49 years, Occu. Nil,
R/o. Yesgaon, Tq. Kopargaon,
Dist. Ahmednagar. ...Appellant
Versus
1. The State of Maharashtra,
Through Police Inspector,
Kopargaon Police Station, Tq. Kopargaon,
Dist. Ahmednagar.
2. XYZ ...Respondents
...
Advocate for Appellant : Mr. Prathmesh R.M. Borde along with
Mr. Chapalgaonkar Shailesh S.
APP for Respondent No. 1 : Ms. A.S. Deshmukh
Advocate for Respondent No. 2 : Mr. Shendurnikar Pushkar S.
...
CORAM : RAJNISH R. VYAS, J.
DATE : 06TH FEBRUARY, 2026
ORAL JUDGMENT :
1. Heard learned counsel Mr Prathmesh Borde, along with
learned counsel Mr Shailesh Chapalgaonkar, for the appellant. Learned
APP, Ms Deshmukh, for respondent no. 1 - State. Learned counsel Mr
Pushkar Shendurnikar, for the victim.
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2. Challenge in this appeal is at the instance of the sole accused
to the judgment dated 07.03.2024, passed in Special Case No. 140/2018,
by Judge, Special Court, Kopargaon, by which the accused was convicted
for commission of offence for punishable under Section 354A of the
Indian Penal Code (herein after would be referred to as 'the IPC' for the
sake of brevity) and Section 8 of the Protection of Children from Sexual
Offences Act (herein after would be referred to as 'the Act of 2012' for
the sake of brevity). The appellant was directed to undergo rigorous
imprisonment for five years and to pay a fine of Rs. 50,000/-. The fine
amount was then directed to be disbursed in favour of the victim towards
compensation under Section 357(1) of the Code of Criminal Procedure.
3. As the accused is convicted for the commission of an offence
punishable under the provisions of the Act of 2012, it will have to
determine whether, as per the provisions of Section 2 (d) of the Act of
2012, the victim was a child at the time of the incident.
4. In this regard, it is necessary to take into consideration the
testimony of P.W. 1 - father of the victim, who had stated in his
deposition that ten years ago, he had found the victim in one thorny bush.
He looked after her and brought her up in his caste, giving her the name
of her father. He stated that at the time of the incident, the victim was
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attending 5th grade at a particular primary school.
5. P.W. 3 is the victim of a crime who, in her examination-in-
chief, had stated that her date of birth was 15.07.2007, and at the time of
the incident, she was studying in 5th standard in Zilla Parishad, Primary
School.
6. P.W. 2 is the Headmistress of Zilla Parishad, Primary School,
who deposed that since 05.08.2013, the victim was taking education at
the school and as per the school record, the date of birth of the victim was
15.07.2007. Exhibit 19 below was the bona fide certificate, and she
identified its contents and her signature.
7. In examination-in-chief, the extract of the school register
showing the date of birth, names of parents of the victim, the caste,
religion, and other information was produced, and the same was marked
at exhibit 22. Exhibit 22 shows that the victim's date of birth is
15.07.2007.
8. In cross-examination, P.W. 2 had admitted that exhibits 19 and
22 were not in her handwriting, and she was unaware as to on what basis
exhibits 19 and 22 were prepared.
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9. P.W. 6 is the Investigating Officer, who had carried out part of
the investigation and had stated that he had given a letter to the Principal,
Zilla Parishad School, requesting to provide a bona fide certificate. The
said letter is shown below as Exhibit P45/PW6. He deposed that he
received the bona fide certificate set out in Exhibit 19.
10. P.W. 7 was also the Investigating Officer, who stated that he
collected copies of the Aadhaar Card, the Election Card of the informant,
and the Aadhaar Card of the victim. He deposed that the content had been
proved and, accordingly, those documents were marked. P50/PW7 was
the Aadhaar Card of the victim, P51/PW7 was the Aadhaar Card of the
victim's father, and P52/PW7 was the Election Card of the victim's father.
11. It is based on the aforesaid testimony and the documentary
evidence that the prosecution has contended that the age of the child was
proved beyond a reasonable doubt. Ms Deshmukh, learned APP,
submitted that, because the defence did not challenge the date of birth
during cross-examination, it logically followed that the date was not
seriously disputed.
12. Mr Shendurnikar submitted that since the victim was found in
the bush ten years ago, it can be logically inferred that it was the child
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who was found. He further submitted that, admittedly, not only the father
of the victim but also the victim had stated in their testimony that at the
relevant time, the victim was studying in 5th standard, and this fact was
denied by the defence in the cross-examination. He submitted that if the
documents produced on record, i.e., a bona fide certificate, an extract of
the school register, the Aadhar Card of the victim, the Election Card and
the Aadhar of the father of the victim, it will clearly point out that the
date of birth of the victim was 15.07.2007.
13. At this stage, it is necessary to mention here that the father of
the victim had not at all deposed on what the prima facie age or physical
characteristics of the victim were when she was found. Thus, the date of
birth was purely an assumption. The documents produced by the
prosecution, i.e., a bona fide certificate, an extract of the school register,
and an Aadhaar Card, show that the victim's date of birth was 15.07.2007.
Still, the fact remains that there was absolutely no foundation for
recording the said date of birth. At this juncture, it is necessary to take
into consideration the law laid down by the Hon'ble Apex Court in the
case of P. Yuva Prakash Versus State, Represented by Inspector of
Police, 2024 Volume 17 SSC 684. More particularly nos. 13 to 17 :
"13. It is evident from the conjoint reading of the
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above provisions that wherever the dispute with respect
to the age of a person arises in the case of a victim
under the POCSO Act, the courts have to take recourse
to the steps indicated in Section 94 of the JJ Act. The
three documents in order of which the Juvenile Justice
Act requires consideration is that the concerned court
has to determine the age by considering the following
documents:
"(i) the date of birth certificate from the school,
or the matriculation or equivalent certificate
from the concerned examination Board, if
available; and in the absence thereof;
(ii) the birth certificate given by a corporation or
a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above,
age shall be determined by an ossification test or
any other latest medical age determination test
conducted on the orders of the Committee or the
Board".
14. Section 94 (2)(iii) of the JJ Act clearly indicates that
the date of birth certificate from the school or
matriculation or equivalent certificate by the concerned
examination board has to be firstly preferred in the
absence of which the birth certificate issued by the
Corporation or Municipal Authority or Panchayat and
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it is only thereafter in the absence of these such
documents the age is to be determined through "an
ossification test" or "any other latest medical age
determination test" conducted on the orders of the
concerned authority, i.e. Committee or Board or Court.
In the present case, concededly, only a transfer
certificate and not the date of birth certificate or
matriculation or equivalent certificate was considered.
Ex. C1, i.e., the school transfer certificate showed the
date of birth of the victim as 11.07.1997. Significantly,
the transfer certificate was produced not by the
prosecution but instead by the court summoned witness,
i.e., CW-1. The burden is always upon the prosecution to
establish what it alleges; therefore, the prosecution
could not have been fallen back upon a document which
it had never relied upon. Furthermore, DW-3, the
concerned Revenue Official (Deputy Tahsildar) had
stated on oath that the records for the year 1997 in
respect to the births and deaths were missing. Since it
did not answer to the description of any class of
documents mentioned in Section 94(2)(i) as it was a
mere transfer certificate, Ex C-1 could not have been
relied upon to hold that M was below 18 years at the
time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs.
State of Uttar Pradesh & Ors.,3 this court outlined the
procedure to be followed in cases where age
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determination is required. The court was dealing with
Rule 12 of the erstwhile Juvenile Justice Rules (which is
in pari materia) with Section 94 of the JJ Act, and held
as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the
procedure to be followed in determination of age.
The juvenility of a person in conflict with law had
to be decided prima facie on the basis of physical
appearance, or documents, if available. But an
inquiry into the determination of age by the Court
or the JJ Board was by seeking evidence by
obtaining: (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. Only in the absence of
either (i), (ii) and (iii) above, the medical opinion
could be sought from a duly constituted Medical
Board to declare the age of the juvenile or child.
It was also provided that while determination was
being made, benefit could be given to the child or
juvenile by considering the age on lower side
within the margin of one year."
16. Speaking about provisions of the Juvenile
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Justice Act, especially the various options in
Section 94 (2) of the JJ Act, this court held in . 4
that:
"Clause (i) of Section 94 (2) places the date of
birth certificate from the school and the
matriculation or equivalent certificate from the
2021 (12) SCR 502 [2019] 9 SCR 735 concerned
examination board in the same category (namely
(i) above). In the absence thereof category (ii)
provides for obtaining the birth certificate of the
corporation, municipal authority or panchayat. It
is only in the absence of (i) and (ii) that age
determination by means of medical analysis is
provided. Section 94(2)(a)(i) indicates a
significant change over the provisions which
were contained in Rule 12(3)(a) of the Rules of
2007 made under the Act of 2000. Under Rule
12(3)(a)(i) the matriculation or equivalent
certificate was given precedence and it was only
in the event of the certificate not being available
that the date of birth certificate from the school
first attended, could be obtained. In Section 94(2)
(i) both the date of birth certificate from the
school as well as the matriculation or equivalent
certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain v State of
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West Bengal5, this court, through a three-judge bench,
held that the burden of proving that someone is a
juvenile (or below the prescribed age) is upon the
person claiming it. Further, in that decision, the court
indicated the hierarchy of documents that would be
accepted in order of preference."
14. Thus keeping in mind the law laid down by the Apex Court, it
would be crystal clear that none of the documents were produced by the
prosecution to prove the date of birth of the victim. Surprisingly, even
ossification test was also not conducted. Since the provisions of the 2012
Act are strict, consequently, the burden of proof necessitates a somewhat
higher standard to prove the date of birth of the victim. As the
prosecution has not proved the date of birth of the victim, I come to
conclusion that conviction under the Act of 2012, cannot be maintained.
15. This comes to next contention of the learned counsel for the
appellant that even conviction awarded under provisions of Section 354 A
of the IPC, is not based on proper appreciation of evidence. Section 354
A of the IPC, prescribed punishment for sexual harassment. Section 354
says that a man committing any of the following act i.e. physical contact
and advances involving unwelcome and explicit sexual overtures; or a
demand or request for sexual favours; or showing pornography against
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the will of a woman; or making sexually coloured remarks, shall be
guilty of the offence of sexual harassment, is said to have committed an
offence under Section 354 A of the IPC. In order to test the contention of
the appellant regarding applicability of Section 354 A, it is necessary to
consider the testimony of P.W. 3 - victim of the crime.
16. P.W. 3 victim of the crime had stated that at the relevant time,
she was studying in 5th standard and after the school, she went to Mangal
Karyalay as wanted to meet her aunt. As her aunt was not present there,
the accused came there, he caught her, took her to the room where
mattresses were being kept and, thereafter, removed her dress.
17. P.W. 3 had also deposed that thereafter, the appellant pressed
her chest and kissed on her cheek and embraced her. He then asked the
victim that she should sleep with him. Victim, thereafter, shouted
however, nobody was there. The victim pushed him and ran away. She
deposed that the smell of liquor was coming from the mouth of the
accused. She deposed that she took her clothes, ran away, and wore them
outside the room. On the way, she met a man to whom she informed that
the accused had misbehaved with her. She further stated that thereafter,
she went to her friend's house, where she met her brother, but did not tell
him anything. She stated that, as she was afraid that the accused would
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beat her, she did not disclose the incident to her parents.
18. After two to three days of the incident, the accused met the
victim when the victim was going to school, and at which time he also
asked the victim not to disclose anyone else, or he would harm her.
According to her, she remained nervous and, therefore, P.W. 4, her
teacher, asked her about the reason, and at that time, P.W. 3 disclosed that
the appellant had misbehaved with her.
19. Victim/ PW 3 further deposed that her teacher, P.W. 4, asked
her to keep quiet and concentrate on her studies. Thereafter, the father of
the victim came to repair the water tap, at which time P.W. 4 - the teacher
- disclosed the incident to the victim's father. The victim stated that her
statement was recorded under Section 164 of the Code of Criminal
Procedure. It was marked at exhibit 24.
20. PW3 was subjected to cross-examination, during which she
admitted that after school hours, she used to walk from the school
compound to her room in the said hall. She also admitted that her father
used to work in the said hall, and that the distance between the place
where she resided in the hall and the room where the mattresses were
stored was about 15 to 20 feet. She stated that when she went to the
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appellant to ask about the aunt, the appellant came from behind and
embraced her, catching her. She further deposed that at that time she
raised a hue and cry and requested the accused to leave her. She denied
the aforesaid suggestions.
21. P.W. 4 - The teacher, in her testimony, stated that the victim
was studying in 5th standard and that on 19.03.2018, at about 01:30 p.m.,
she received a phone call. The person who made the call disclosed that he
was speaking from Child Line, Ahmednagar. He enquired whether P.W. 4
was a class teacher of 5th standard in a school. He also enquired by
taking the name of the victim as to whether she was taking education in a
class, and further, whether the victim was subjected to sexual harassment.
P.W. 4 told that she was not aware of anything. On 20.03.2018, according
to P.W. 4, school started in the morning, and she went to the Gram
Panchayat office to meet the victim's parents, but she could not meet
them as they were not present.
22. On 21.03.2018, according to P.W. 4, at 09:30 a.m., she called
the victim and asked her what had happened and also asked why the
victim was keeping silent and nervous. The victim said that the appellant
had misbehaved with her. P.W. 4 then immediately went to the
Grampanchayat and called the victim's father at the school, disclosing to
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him the phone call she had received from the Child Line. She then called
the victim and asked her about the incident, during which the victim
stated that 15 days ago, after school, she had gone to Mangal Karyalaya
to see her aunt, but her aunt was not there. She disclosed that the
appellant came there, caught her hand, took her to a room, disrobed her,
pressed her chest and kissed her on the cheek. She also disclosed that the
appellant embraced her. She further stated that a month ago, a similar
type of incident occurred, but the victim was unable to disclose the date.
23. In cross-examination, P.W. 4 had admitted that the water tap
in the school was never damaged and she did not make any application to
the Grampanchayat. She admitted that on 21.03.2018, she did not call the
victim or the father. She denied the other suggestions but admitted that
there were two political groups in the village, and that the accused was
overseeing the administration of the Mangal Karyalay.
24. P.W. 1 is the father of the victim who had stated that ten years
ago, he had found the victim in thorny bushes and, thereafter, he looked
after her. He stated that on 25.03.2018, he went to Primary School to
repair the water tap, at which time, P.W. 4 met him and she disclosed that
the appellant had caught the victim and harassed her. The incident was
then narrated by the victim, as discussed earlier. P.W. 1 further stated that
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the next day after the incident, she disclosed it to P.W. 4 and the victim's
mother. He further deposed that one Mahesh Suryawanshi and Shahid
Shaikh came to him, who were from the Child Line, Ahmednagar, and
accordingly, a First Information Report was lodged, which was at exhibit
15. He handed over the caste certificate (exhibit 16) to the police, and his
statement was recorded under Section 164 of the Code of Criminal
Procedure (exhibit 17).
25. In cross-examination, P.W. 1 had stated that he was unable to
state the date and day of the incident. He said that on 21.03.2018, P.W. 4
did not meet him at Yeola village. He admitted that he had not disclosed
to any government offices that he had found the victim. He also admitted
that while taking the caste certificate of the victim, he did not disclose to
the government offices that he found the victim. He further stated that,
before the incident, except for P.W. 4, he had not disclosed to Talathi or
Gramsewak that he had found the victim. He admitted that the accused
used to look after the said hall and the brother of P.W. 1, by name Sonu,
used to assist the accused. He also admitted that the accused used to
handle the financial transactions of the said hall. He admitted that the
accused was on visiting terms at his house, and that he also frequently
visited the accused.
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26. P.W. 1 had admitted, during his cross-examination on
25.03.2018, that he went to P.W. 4 at 11:30 a.m. There were four water
taps at the school, of which one was not working. He stated that he
repaired the water tap in the school. He further stated that P.W. 4 met him
when he was repairing the water tap. At that time, he was alone. He
stated that on his own had not made phone call to Child Line people and
they had come there own. Nothing fruitful was brought on record by way
of cross-examination so as to disbelieve the version of the victim of the
crime.
27. P.W. 5 is one Mahesh Suraywanshi who stated that he was
working with the Child Line. On 19.03.2018, he received a phone call
from an unknown number and it was informed that there was an attempt
to molest a child at the village who was taking education in 5th standard.
The person who made a phone call had not disclosed her identity. P.W. 5
then advised the said women to lodge report at the police station but the
said women disclosed that the relatives of the victim were frightened.
Thereafter, the call got disconnected.
28. P.W. 5 had stated that in order to ascertain the truth, he and
his colleague went the said village and, thereafter, information was
gathered regarding family of the victim. They then met the family of
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victim and enquired with the parents and told that the incident was
proved. P.W. 5 then advised them to file the case but the parents of the
victim were frightened and told that the person who had committed the
crime was reputed person and he would beat them and would not allow
them to reside in village.
29. The parents then told P.W. 5 that they would think for two
days and, thereafter, take decision. After two days on 26.03.2018, P.W. 5
received a phone call from father of victim and he had shown his
willingness to lodge the FIR and, therefore, they went to police station
Kopargaon, and lodged the report. At which time, colleague of P.W. 5 by
name of Shahid Shaikh was also present. He deposed that statement was
recorded under Section 164 of the Code of Criminal Procedure. It was
marked as exhibit 30.
30. In cross-examination, he admitted that he wrote down the
complaints which they received and investigats and meeting is also
arranged in that respect. He admitted that whenever complaint is received
such phone call is recorded and it was played in the meeting. He further
stated that the call center was aware of the phone number where from the
calls were received. But he stated that he was unable to state the time
when the call was received. He stated that police did not ask him about
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the time. P.W. 5 also deposed that on 24.03.2018, when he went to the
village along with his colleague, parents of the victim as well as the
grand parents were present, at which time, his colleague was a counselor.
The other suggestions he denied.
31. Challenging the testimony of victim, P.W. 4 / teacher, and
PW5/Child Line officer, learned counsel for the accused submitted that
the entire case advanced by the prosecution, was false. There was
unexplained delay and two different stories are coming from the
witnesses examined by the prosecution. He submitted that if the P.W. 4 -
teacher was aware of the incident, she would have been expected to lodge
a report immediately. The incident was also narrated to mother of the
victim who did not disclose the said fact to the police authorities. Even
father had taken much time to lodge the First Information Report.
32. He, therefore, submitted that there is absolute failure on the
part of P.W. 5, who was working with the Child Line, to perform his duty
as he could have very well inform to the police telephonically. He
submitted that the delay in lodging the FIR speaks for itself, and the
benefit of it be given to the accused. He submitted that the testimony
advanced by the child is not at all believable and her testimony will have
to be appreciated with great care and caution. Accordingly to him, no
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steps were taken by the Court to ascertain whether the child was
intelligent enough to depose before the Court. He submitted that the
prosecution has not proved the case beyond reasonable doubt and,
therefore, appellant be acquitted.
33. Per contra, Ms. Deshmukh, contended that there is absolutely
no inconsistency and if the testimony of the victim, father, the teacher,
and the representative from Child Line is considered in the proper
perspective, it reveals that the prosecution correctly proved the
ingredients of the registered offence.
34. Ms Shendurnikar supports the contention of the learned APP
regarding dismissal of the appeal and contends that there is nothing to
disbelieve in the version of the child and, therefore, the judgment of
conviction may not be disturbed.
35. At this stage, it is necessary to mention here that though the
prosecution has not proved the age of the child, it does not mean that the
other part of the story advanced by the prosecution is also required to be
disbelieved.
36. P.W. 3 in her evidence had categorically stated that on the
day of the incident, the accused had caught hold of her, kissed her,
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embraced her, removed her clothes, and the victim then resisted and ran
away from the spot of the incident. Nothing has been brought on record
by way of cross-examination or by answering the questions put under
Section 313 of the Code of Criminal Procedure, or by examining the
defence witness, that the version of P.W. 3 is not cogent and reliable. The
victim's testimony inspires confidence ; just because there is a delay in
lodging the FIR, and when delay is explained . The version of prosecution
cannot be thrown out.
37. Typically, incidents of this nature are not reported to the
police promptly; even family members are often kept in the dark out of
fear of social stigma. It is a well-established principle that falsus in uno,
falsus in omnibus is not recognised in Indian law. Therefore, even if
there are minor improvements in the story advanced by the father of the
victim and P.W. 4, they will not help the defence. Nothing has been
brought on record to attempt to show that there was any reason for the
victim to falsely implicate the accused.
38. If the testimony of P.W. 1, P.W. 3, P.W. 4, and P.W. 5 is
considered holistically, it is clear that there is a ring of truth in the case
advanced by the prosecution. In that view of the matter, I conclude that
the prosecution has proved the offence punishable under Section 354 A of
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the IPC, though it has not proved the commission of the offence under
Section 8 of the Act of 2012. As the conviction under the Act of 2012 is
disturbed, what remains is the conviction and sentence under Section
354A, which prescribes a punishment of a term which may extend to
three years. Accordingly, the following order is passed :
ORDER
i. Criminal Appeal is partly allowed.
ii. The judgment passed by the Special Judge,
Kopargaon, dated 07.03.2024, in Special Case No.
140/2018, so far as convicting the appellant for the
commission of an offence under Section 8 of the
Protection of Children from Sexual Offences Act, is set
aside.
iii. The accused is acquitted of the commission of an
offence under Section 8 of the Protection of Children
from Sexual Offences Act.
iv. Other part of the judgment, including conviction of
the appellant for commission of offence punishable under
Section 354 A of the Indian Penal Code, is maintained, so
22 903Cri.Appeal.239.2024.odt
also sentence awarded for it.
iv. Mr Shendurnikar, who was appointed by the Court
for the victim, has, in a very able manner, assisted the
Court and has brought to my notice several provisions to
put forward his contention that, in fact, the appeal is
meritless. His fees are quantified at Rs. 10,000/- (Rupees
ten thousand).
v. Pending Criminal Application shall stand disposed
of.
( RAJNISH R. VYAS, J. )
SPC
