[Cites 21, Cited by 0]
Bombay High Court
Sunil Santosh Bhagwat vs The State Of Maharashtra And Another on 10 February, 2026
2026:BHC-AUG:6246
901.APEAL.884.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 884 OF 2024
Sunil Santosh Bhagwat
Age 33 Years, Occu - Agril.
R/o. Deshmukh Nagar, Chopda,
Tq. Chopda, Dist. Jalgaon. ...APPELLANT
VERSUS
1. The State of Maharashtra,
(At the instance of Chopda City Police
Station Jalgaon)
2. XYZ ...RESPONDENTS
***
Mr. Abhaysinh K. Bhosle, Advocate for the Appellant.
Ms. M. N. Ghanekar, APP for Respondent - State.
Mr. Prasanna Dadpe, Advocate for Respondent No.2.
***
CORAM : RAJNISH R. VYAS, J.
DATE : FEBRUARY 10, 2026
JUDGMENT:
1. At the outset, it is informed that appointed counsel, Ms.
Sayali Tekale, is on maternity leave. Mr. Prasanna Dadape, who is
associated with the earlier counsel and has 12 years of practice,
submits that he is ready with the matter. Since the accused is in jail,
Mr. Prasanna Dadpe has been appointed to represent respondent No.2.
2. Heard Mr. Abhaysinh Bhosle, learned counsel for the
appellant / accused; Ms. Ghanekar, learned APP for the State; and Mr.
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Prasanna Dadpe, learned appointed counsel for the victim.
3. Challenge in this appeal is to the judgment of conviction
dated 14th May 2024, passed by the District Judge-2 and Additional
Sessions Judge, Amalner, by which the appellant - accused has been
convicted for the commission of offfence punishable under Sections
354, 354-A and 354-D of the Indian Penal Code, 1860 (hereinafter
referred to as "IPC" for the sake of brevity), as well as Section 7,
punishable under Section 8, and Section 12 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to as
the "Act of 2012" for the sake of brevity).
Rank of Name of Date of Date of Offences Whether Sentence Period of
the accused Arrest releasedon charged acquitted imposed detention
accused bail with or undergone
convicted during trial
for the
purpose of
section 428
of Cr.P.C.
Sunil 08.02.2023 04.03.2023 Sections Under
Santosh 354, 354- Sec.8 of
Bhagwat A, 354-D POCSO Act
of I.P.C. R.I. for 5
and Years and 08.02.2023
Sec.7 r/w fine of to
Sec.8 and Convicted ₹ 50,000 04.03.2023
Sec.11 and under
r/w Sec.12 of
Sec.12 of POCSO Act
POCSO R.I. for 3
Act Years and
fine of
₹ 25,000
4. In short, it is the case of the prosecution that the victim at
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the relevant time was 14 years old and was studying in 08 th standard
of the school, where the present appellant was occupying the post of a
teacher and teaching the language of Hindi. On 04th February 2023,
the appellant kissed the victim on the lips and touched her breast
(moved his hand on chest), and also did not allow her to leave the
classroom.
5. The prosecution has also relied upon the telephonic
conversation recorded on the mobile used by the victim to bring home
the charge.
6. The aforesaid incident, narrated in brief, resulted in
registration of the First Information Report dated 05 th April 2023 at the
instance of the victim.
7. During the course of the investigation, on 08 th February
2023 at about 20:45 hours, the accused was arrested. Thereafter, the
Investigating Officer, with a view to collect the material, seized the
mobile phones used by the accused and the victim. A certificate under
Section 65B of the Indian Evidence Act was also obtained. The
Investigating Officer (PW-8) then collected the victim's school leaving
certificate, the accused's appointment order, and the timetable and
attendance sheet.
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8. After completion of the investigation, the charge sheet
bearing No.39 of 2023, dated 05 th April 2023, was filed against the
accused. At the relevant time, the accused was 53 years old.
9. The charge was framed against the accused below Exhibit
12 on 08th January 2024, to which he did not plead guilty, and
therefore, the prosecution examined, in all, 9 witnesses. The
prosecution also relied upon various documents duly exhibited, which
were 28 in total.
Rank Name Nature of Evidence
PW-1 Victim Victim
PW-2 Smt. Utpalvarna Jayprakash Aagle Supervisor of Nutan
Madhyamik School,
Chunchale.
PW-3 Shaikh Asif Shaikh Musa Panch witness.
PW-4 Mother of victim Mother of victim.
PW-5 Uday Pralhad Mahajan Teacher in AA School,
Chahardi.
PW-6 Shubham Sunil Bhagwat Son of accused.
PW-7 Ravindra Atmaram Sonawane Headmaster of AA
School, Chahardi.
PW-8 Ghanshyam Chandrakant Tambe Investigating Officer.
PW-9 Makrand Bhalchandra Vidhwansa Nodal Officer.
10. After recording of evidence, the accused was subjected to
an inquiry under Section 313 of the Code of Criminal Procedure, 1973
(hereinafter referred to as "Cr.P.C." for the sake of brevity). The stand
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taken by the accused in 313 statement, more particularly in answer to
Question No.72, was that he had been falsely implicated at the
instance of Superintendent, Headmaster, and the office bearers of the
management, as a dispute was going on between the accused and the
aforesaid persons.
11. The accused neither entered the witness box nor examined
any other witness. The Trial Court, after considering the evidence on
record, convicted the appellant as stated above.
12. Since the accused has been convicted for the commission
of various offences, it would be relevant to refer to the provisions that
were taken into consideration by the Trial Court.
13. Section 354 of IPC, for which the accused is convicted,
deals with assault or criminal force to a woman with the intent to
outrage her modesty. The section provides that whoever assaults or
uses criminal force against any woman, intending to outrage or
knowing it to be likely that he will thereby outrage her modesty, shall
be punished. Criminal force is defined under Section 350 of IPC,
which says that whoever intentionally uses force to any person,
without that person's consent, in order to the committing of any
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offence, or intending by the use of such force to cause, or knowing it to
be likely that by the use of such force he will cause injury, fear or
annoyance to the person to whom the force is used, is said to use
criminal force to that other.
14. Section 349 of IPC defines "force" and states that a person
is said to use force to another if he causes motion, change of motion,
or cessation of motion to that other, or if he causes to any substance
such motion, or change of motion, or cessation of motion as brings
that substance into contact with any part of that other's body, or with
anything which that other is wearing or carrying, or with anything so
situated that such contract affects that other's sense of feeling.
15. The accused is also convicted for the commission of an
offence punishable under Section 354-A of IPC, which deals with
sexual harassment and prescribes the punishment for it. Sexual
harassment would mean physical contact and advances involving
unwelcome and explicit sexual overtures.
16. Section 354-D of IPC deals with stalking and provides that
when any man follows a woman and contacts, or attempts to contact
such woman to foster personal interaction repeatedly despite a clear
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indication of disinterest by such woman, or monitors the use by a
woman of the internet, email or any other form of electronic
communications, commits the offence of stalking.
17. Section 7 of the Act of 2012 speaks about sexual assault,
which means touching of the vagina, penis, anus or breast of the child
with sexual intent or doing any other act with sexual intent which
involves physical contact without penetration.
18. Section 12 of the Act of 2012 for which the appellant is
convicted, prescribes punishment for sexual harassment. Sexual
harassment is defined under Section 11 of the Act, which provides
under clause (iv) that a person is said to commit sexual harassment
upon a child when such person with sexual intent repeatedly or
constantly follows or watches or contracts a child either directly or
through electronic, digital or any other means.
19. It is in this background the testimony of the victim and the
other witnesses will have to be taken into consideration.
20. Learned counsel for the appellant, Mr. Bhosle, has
submitted that the entire case put forwarded by the prosecution is not
convincing, cogent and reliable. He further submitted that the manner
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in which the investigation was carried out clearly reveals several lapses
and intentional omissions to give favour to the management of the
school, as well as the headmaster of the school where the victim was
studying.
21. Mr. Bhosle contended that there was a delay in lodging the
First Information Report and that the conversation on which the
prosecution relied was not proved in accordance with the provisions of
the Indian Evidence Act. According to him, the act or conduct of the
victim of the crime in keeping mum and not informing anyone of the
alleged sexual assault clearly shows that the guilt of the accused was
not proved beyond a reasonable doubt. He further submitted that,
even as per the deposition of the victim, she had memorized the
complaint made to the police and thereafter gave a statement, which
was recorded under Section 164 of the Cr.P.C.
22. He also submitted that the enmity was the only reason for
the false implication, and that the documents produced on record,
more particularly the attendance sheet showing the class taken by the
appellant, would reveal that on the day of the alleged incident, the
accused was taking classes. He therefore submits that he be acquitted.
901.APEAL.884.2024
23. Per contra, Ms. Ghanekar, learned APP, submitted that the
victim, who was studying in the 8th standard, had narrated the
incident in detail and that there was nothing to disbelieve the story
advanced by the prosecution. She submitted that the defence taken by
the accused was not based on any material and was merely a fragile
defence. She further submitted that there is no fixed formula for
determining whether a person would act in a particular manner in a
specific incident. She submits that the victim's testimony must be
considered because the victim was 14 years old and the accused was
53, and that the accused was the victim's teacher. She also submitted
that the victim's age was not seriously disputed by the accused, neither
before the Trial Court nor before this Court, and that the presumption
provided under the Act of 2012 would therefore apply.
24. Learned counsel appointed for the victim has supported
the stand taken by the learned prosecutor and has stated that, if the
various dates are taken into consideration, it would reveal that the
accused was pursuing the victim. He submitted that on 04 th February
2023, the first incident occurred; thereafter, on 05th February 2023,
without any reason, the accused visited the victim's house; and on
07th February 2023, the accused made a phone call to the victim. He
901.APEAL.884.2024
submitted that, in the aforesaid background, it can be said that the
offences are duly proved.
25. The learned counsel for the accused, Mr. Bhosle, has also
contended that the maximum sentence of five years imposed upon the
accused is too harsh and is contrary to the sentencing policy. He
submitted that reformation is one of the dominant factors to be
considered in awarding the sentence. He therefore submits that, if the
Court is not inclined to acquit the accused, the sentence may be
reduced, as the accused has already served approximately 24 months
of imprisonment.
26. Ms. Ghanekar, learned APP, and Mr. Dadpe, on the contrary,
have stated that there is absolutely no merit in the appeal filed by the
accused, and that neither the conviction nor the sentence warrants
interference. They submitted that it is not a thumb rule that, in every
case, the reformative theory must be adopted; rather, the concept is
that of just punishment. Since the accused was a teacher and the
victim was a minor, the maximum punishment must be awarded.
27. I have gone through the record of the case and have also
given thoughtful consideration to the arguments advanced by the
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respective counsel.
28. As the conviction of the accused is under the provisions of
the Act of 2012, it is necessary to determine whether the victim was a
child as defined under Section 2(d) of the Act of 2012. A child is
defined as a person below eighteen years on the date of the incident.
29. In this regard, it is necessary to mention here that the age
of the child was not seriously disputed either before the Trial Court or
before this Court. Despite this, it is necessary to consider the
testimony of the mother of the victim, who was examined as PW-4 by
the prosecution. PW-4, in her evidence, has stated that the victim's
date of birth was 15th March 2009 and, at the relevant time, the victim
was studying in the 8th standard. The incident occurred on 07 th
February 2023.
30. If the cross-examination of this witness is considered, it
becomes crystal clear that absolutely no suggestion was given to the
witness challenging the date of birth. Moreover, PW-5, the class
teacher of the victim, stated that in 2023, the accused used to teach
Hindi in the 8th standard, and that the victim was an 8th standard
student. He further stated that the victim's date of birth was 15 th
901.APEAL.884.2024
March 2009, for which he relied on the daily attendance sheet.
31. The prosecution has also brought on record the leaving
certificate from the headmaster of the school, i.e., PW-7. PW-7, in his
examination, stated that he had brought the original record from the
school and, after verifying it, stated that the victim's date of birth was
15th March 2009. The record produced by him included the accused's
appointment order at Exhibit 35, the attendance sheet, the timetable
below Exhibit 38, and the leaving certificate below Exhibit 40. Exhibit
40 is the School Leaving Certificate, which shows the name of the
victim of the crime, as well as the name of the victim's mother and her
date of birth.
32. In this background, it can be said that the prosecution has
proved the date of birth of the victim as 15 th March 2009, and as such,
the victim was 13 Years, 10 Months, and 23 Days old on the date of the
incident, i.e., 07th February 2023.
33. Further discussion will now examine whether the
prosecution has proved the incident on 04th February 2023, the
telephonic conversation, and the accused's visit to the victim's house.
34. Coming to the first incident dated 04th February 2023, it is
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necessary to consider the testimony of PW-1, the victim, who deposed
that at the relevant time she was residing with her parents,
grandmother, and brother, and was studying in the 8 th standard, her
date of birth being 15th March 2009. Mr. Uday was the class teacher,
and a WhatsApp group was formed to provide study material. She
gave her parents' phone numbers and said those two numbers had
been added to the WhatsApp group.
35. PW-1 further stated that the accused used to teach the
Hindi subject, and on the eve of festival of Sankranti, she had called
the accused to extend her wishes. She then mentioned accused's
phone number. The victim, PW-1, stated that at that time the accused
had asked her to maintain a personal relationship with him, upon
which she immediately disconnected the phone.
36. PW-1 stated in her examination-in-chief that on 04 th
February 2023, at about 07.00 a.m., she had been to the school, and at
about 10:30 in the morning, there was class on the Hindi subject. She
stated that the teacher requested that the children be taken to play,
and therefore, along with the teacher, the students went to the
playground.
901.APEAL.884.2024
37. PW-1 stated that, as she was feeling thirsty, she came to the
classroom for drinking water, at which time the accused came along
with a register in the classroom. The accused then took the names of a
few students and inquired whether those students were from a
particular village, to which the victim replied in the negative. At that
time the accused caught hold of the victim forcibly, and thereafter
kissed her lips and touched her breast (moved his hand on breast).
The victim then shouted and went to one Ravindra.
38. Thereafter, on 5th February 2023, the accused visited the
victim's house, which was a Sunday and thus a holiday for the school.
At that time, the victim and her grandmother were at home, while
other family members had gone to work in the agricultural field.
Thereafter, the tea was offered, and the accused went home.
39. PW-1 deposed that on 07th February 2023, at about 07.15
in the evening, the accused called on the mobile of the victim's mother.
At that time, he enquired as to when the victim would meet him and
uttered the following words: "dsOgk HksVf'ky] [kkyps i.k dke gksr ukgh o
ojps i.k dke gksr ukgh-" The victim further deposed that, while the
conversation was going on, her father arrived, and she disconnected
the phone, due to fear.
901.APEAL.884.2024
40. As the conversation got recorded, the father of the victim
heard it and, on the second day, visited the school. According to the
victim, her father then narrated the incident to the headmaster and
another teacher and also asked them to listen the conversation
recorded in the phone. Thereafter, she went to the police station and
lodged the report. The complaint she proved was below Exhibit 16.
41. She stated that her statement was recorded in the Court.
The statement recorded in the Court is under Section 164 of code of
criminal procedure, set out below as Exhibit 17. She further stated
that she had signed the statement below Exhibit 17. She identified the
accused in the Court.
42. When the testimony of this witness was recorded, the
audio clip was played in the Court, and the conversation was recorded
in detail in examination in chief, which is evident from paragraph No.7
of the testimony.
43. This witness was cross-examined, in which she admitted
that there was a staff room for the lady teacher just adjacent to class
8th A and a Veranda outside her classroom. By cross-examining this
witness on the point of spot, an attempt was made to convince the
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Court that the incident could have been seen by anyone outside. She
further admitted that her parents' telephone number was provided
because, as her father was working in the field, her mother's phone
number would be helpful.
44. She deposed that on 04th February 2023, in the morning,
there was a history class during which attendance was taken. There
were 22 girls and 16 boys, and none was absent. Various questions
were put to her regarding the subjects taught by different teachers,
and an attempt was made to suggest that, at the time the incident
allegedly occurred, the accused was in fact teaching a Subject in class.
45. In cross-examination, she further stated that the accused
was known to her since he was teaching the 8 th standard. She stated
that she recognized the accused because he used to teach Hindi. She
denied the suggestion that the incident alleged to have taken place on
04th February 2023 had, in fact, not occurred.
46. She stated that she did not narrate the incident to anybody
till the lodging of the FIR. She further admitted that from 04th till
08th February, she was living a normal life. In her depositions, she
admitted that it was correct to say that whenever the accused called
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her, she would disconnect the phone. She also admitted that there was
an auto-recording facility on the mobile phone.
47. She further stated that she had not asked her father to
listen to the conversation, but that he had heard it on his own. She
stated that she was not aware whether her father had come on 08 th
February 2023 and that, when he entered the headmaster's cabin, the
teacher, headmaster, her father, and her uncle were present. She
submitted that her statement at the police station was recorded by a
lady Police Officer.
48. She denied the suggestion that she had given her
statement in the Court after going through her complaint and
volunteered that she memorized the complaint and thereafter gave a
statement. She admitted that her voice samples were not taken. She
further admitted that on 09 th February 2023, she did not attend the
classes.
49. The testimony of the aforesaid witness proves the
following facts.
i) The accused was teaching the Hindi subject.
ii) The accused used to call her telephonically.
901.APEAL.884.2024
iii) On the day of the incident, i.e., 04th February 2023,
the accused had kissed her lips, touched her breast,
and caught hold of her.
iv) The accused visited the house of the victim on 07th
February 2023.
v) The accused had asked her to maintain a personal
relationship with him, and therefore, the phone was
immediately disconnected.
vi) On 07th February 2023, at about 07:15 p.m., a call
was made by the accused to the mobile phone of the
victim's mother, at which time the accused uttered
the following words "dsOgk HksVf'ky] [kkyps i.k dke
gksr ukgh o ojps i.k dke gksr ukgh-"
vii) At that time, the father of the victim arrived, and
therefore, the victim disconnected the mobile phone
due to fear.
50. In cross-examination, the victim was asked whether it is
true to say that the accused used to call her and that she used to
disconnect the phone, to which the victim responded in the affirmative
(paragraph No.15 of cross-examination).
901.APEAL.884.2024
51. The aforesaid testimony of the victim would clearly reveal
that the accused had, on several occasions, called the victim; therefore,
it can be said that the accused had followed her and contacted her to
foster personal interaction repeatedly, despite a clear indication of
disinterest by the victim.
52. This is sufficient to attract the ingredients of the offence
under Section 354-D of IPC, which aspect has been duly considered by
the Trial Court, and the conviction has been rightly awarded. The act
of the accused in kissing the lips of the victim clearly shows that the
offence under Section 354-A of IPC is also made out, since the accused
had physical contact and made advances involving unwelcome and
explicit sexual overtures. The language used by the accused, which is
reproduced (supra), establishes the guilt of the accused under Section
354-A of IPC.
53. The conviction awarded to the accused under Section 354
of IPC is also based on proper appreciation of the evidence, since the
accused used criminal force on the victim intending to outrage her
modesty. The accused had caught hold of her, kissed her lips, and
touched her breast, which clearly amounts to the commission of an
901.APEAL.884.2024
offence under Section 354 of IPC.
54. So far as the conviction awarded under Section 7,
punishable under Section 8 of the Act of 2012, is concerned, the
accused, with sexual intent, had touched the breast of the child and
was therefore rightly punished under Section 8 of the Act of 2012.
55. Coming to Section 12 of the Act of 2012, which provides
punishment for sexual harassment, the evidence clearly shows that the
victim with a sexual intent, repeatedly and constantly followed the
child with a sexual intent and therefore, even the conviction awarded
under Section 12 of the Act of 2012 cannot be faulted with. Further,
the defence of false implication at the behest of the management of the
school, the headmaster, and the supervisor is a fragile defence and is
not based on any material; therefore, it cannot be taken into
consideration. The testimony of the child inspires confidence and has
a ring of truth in it.
56. Not only this, PW-4, who is the mother of the victim,
narrated the post-incident facts by stating that on 07 th February 2023,
at about 07:00 to 07:15 evening, the victim was talking on the mobile
phone, and the mother thought that it was a conversation with a friend
901.APEAL.884.2024
and therefore ignored it. When the husband of PW-4 entered, the
victim became frightened and disconnected the phone, at which time
the husband of PW-4, i.e., the victim's father, took the phone from the
victim.
57. Thereafter, in the presence of PW-4 and her mother-in-law,
the father of the victim heard the conversation between the victim and
the accused. The victim was then questioned and narrated the
incident that occurred on 04 th February 2023. In cross-examination,
nothing was brought on record to disbelieve the version advanced
either by the mother of the victim or by the victim herself.
58. PW-7, the headmaster, stated that the telephonic
conversation was played in his chamber and that he could recognize
the voice as that of the accused. PW-2, who was working as a
superintendent in the school, also stated that she had heard the
conversation between the accused and the victim when it was played
in the chamber of the headmaster, and that she recognized the voice of
both the victim and the accused.
59. The conversation recorded on the mobile phone was tried
to be proved by the prosecution by relying upon a certificate issued
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under Section 65-B(4) of the Indian Evidence Act, below Exhibit 51.
PW-7 himself issued the said certificate. The Investigating Officer, PW-
8, stated that the conversation from the mobile phone was then
transferred to a 16 GB pen drive, which was subsequently produced in
Court, where the conversation was heard and played by the Trial
Court.
60. At this juncture, the learned APP and the counsel for the
victim have stated that the conversation would also be a piece of
evidence, which the prosecution has rightly proved to establish the
guilt of the accused.
61. Admittedly, the voice samples of the victim and the accused
were not collected. Further, the mobile phones used by the victim and
the accused, which were seized under Section 165 of Cr.P.C., were not
forwarded for forensic examination. The accused has disputed his
voice.
62. It is a fundamental principle of criminal law that the
prosecution is required to prove the guilt of the accused beyond a
reasonable doubt. Nothing prevented the Investigating Agency from
conducting a forensic examination of the seized mobile phones. The
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call details, as reflected in PW-9, between the appellant and the victim,
at the most establish that a call was made from a particular number to
another, and do not prove the conversation itself.
63. There is absolutely no corroborative piece of evidence,
since the transcript of the conversation was neither prepared nor
proved by the prosecution. Thus, the best evidence was not produced
on record. In that view of the matter, I conclude that the conversation
recorded was not proved by the prosecution beyond a reasonable
doubt.
64. PW-6, who is the son of the accused, stated that though the
SIM card was in his name, the number was used by his father, i.e., the
accused. PW-6 was not seriously cross-examined; therefore, it can be
said that the accused used the mobile number. PW-9 clearly shows
that the accused made several phone calls to the victim at the
accused's instance.
65. At this stage, the learned counsel for the appellant submits
that, if clause 3 of the operative part of the judgment is perused, it
would reveal that the sentences are ordered to run consecutively and
not concurrently.
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66. In this regard, it is necessary to mention here that Section
42 of the Act of 2012 provides that if the offender is found guilty of the
offences liable to punishment under the Act of 2012 of the Indian
Penal Code, then the punishment, which is of a greater degree, is
required to be awarded. Since the higher degree of punishment would
mean a sentence of five years, by taking recourse to Section 42 of the
Act of 2012, it is observed that the accused will have to be awarded
the sentence of five years.
67. It is further necessary to mention here that the sentence
imposed upon the accused were directed to run concurrently and not
consecutively.
68. A request of the learned counsel for the appellant that the
sentence be reduced also cannot be considered, for the simple reason
that the accused was a teacher and the victim was a child. A person
who is required to act as a guiding light has, in fact, created darkness
in the life of the student/victim. Therefore, I am of the view that no
interference is required in the findings recorded by the Trial Court. In
the aforesaid background, the appeal is liable to be dismissed.
901.APEAL.884.2024
69. Accordingly, the following order is passed.
ORDER
A) The judgment dated 14th May 2024, passed in
Special Case No.14 of 2023 by the District Judge-2
and Additional Sessions Judge, Amalner, is hereby
maintained.
B) The sentence imposed upon the accused shall be five
years, in the light of Section 42 of the Act of 2012,
and the sentences shall run concurrently and not
consecutively.
C) The appeal is disposed of in the above terms.
70. At this stage, it is necessary to state that Mr. Prasanna
Dadpe has ably assisted the Court and has also drawn my attention to
the various pieces of evidence. His fees are quantified at ₹ 10,000/-.
( RAJNISH R. VYAS, J. )
