[Cites 16, Cited by 0]
Bombay High Court
Rakesh S/O. Amarkant Katekar vs State Of Mah. Thr. Pso, Mohadi, Dist. ... on 27 March, 2026
1 apeal461.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.461/2023
Rakesh S/o Amarkant Katekar,
aged about 25 years, Occu. Labourer,
R/o Roha, Tahsil Mohadi,
District Bhandara. ... Appellant
- Versus -
1. State of Maharashtra,
through Police Station Officer
Mohadi, District Bhandara.
2. XYZ-Victim
Crime No.96 of 2020
Police Station Mohadi,
District Bhandara. ... Respondents
-----------------
Mr. Abhinav Vasant Muley, Advocate for the Appellant.
Ms. Sneha S. Dhote, A.P.P. for the Respondent No.1/State.
Ms. Kirti Deshpande, Advocate (appointed) for the Respondent No.2.
----------------
CORAM: NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT: 24.03.2026.
DATE OF PRONOUNCING THE JUDGMENT: 27.03.2026.
JUDGMENT
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 22.06.2023 passed by the learned Additional
Sessions Judge, (Special Judge, POCSO), Bhandara in Special Case
2 apeal461.2023.odt
(Child Protection) No.77/2020 convicting and sentencing the
Appellant as follows:-
1) The accused Rakesh Amarkant Katekar R/o. Roha, Tah.
Mohadi, District Bhandara, is hereby convicted under Section
235(2) of Code of Criminal Procedure for the offences
punishable under Sections 376(2)(n), 376(3), 506 of the
Indian Penal Code and under Section 6 of the Protection of
Children from Sexual Offences Act, 2012.
2) The accused is sentenced to undergo rigorous
imprisonment for one year for an offence punishable under
Section 506 of the Indian Penal Code and to pay fine of
Rs.1,000/-, in default of payment of fine further S.I. for one
month.
3) The accused is sentenced to undergo rigorous
imprisonment for ten years for an offence punishable under
Section 6 of the Protection of Children from Sexual Offences
Act, 2012 and to pay fine of Rs.3,000/-, in default of payment
of fine further S.I. for three months.
4) As per Section 42 of the POCSO Act no separate
punishment is given under Section 376(2)(n) & 376(3) of the
I.P.C.
5) The period of detention undergone by the accused during
investigation and trial shall be set off against the term
imprisonment imposed on him.
6) Both the punishments shall run concurrently.
7) The amount of fine if paid by the accused shall be paid to
the victim as a compensation after appeal period is over.
8) The bail bonds of the accused shall stands cancelled.
9) The seized articles being worthless be destroyed after
appeal period is over.
10) Conviction warrant be prepared and sent to Jail
Authority.
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11) The copy of Judgment and Order be provided to the
accused free of cost and the copy of Judgment and Order be
also forwarded to the victim.
Pronounced and dictated in Court."
2. The prosecution's case, as revealed from the Police Report, is
as under:-
a) The Victim who was 13 years of age was residing with her
parents on the given address. She was taking education. From 2004
her father was running Kirana General Stores. In absence of her
father, the Victim used to manage the shop. Near kirana shop the
Appellant was residing. The Appellant used to visit the said Kirana
Shop for purchasing. The pan shop of the Appellant's father was next
to the said kirana shop. The Vitim and the Appellant got friendly. In
absence of her parents, the Appellant used to visit the Victim. Sexual
relations were established between the Appellant and the Victim. On
06.07.2020, the Victim's mother went out of station. Victim
informed the Appellant about the same. In the midnight the
Appellant came to the house of the Victim. The Victim's father got up
to answer the nature's call and he noticed the Appellant and the
Victim standing near the cot in the hall. The Appellant escaped. The
Victim's father enquired with her and the Victim disclosed that, by
giving threat, the Appellant established physical relations with her.
On the next day, Victim's mother returned and Victim's father
narrated the incident to her. The Report was lodged with Mohadi
Police Station, District Bhandara and Crime bearing No.0096/2020
came to be registered against the Appellant for the offence
punishable under Sections 376(2)(n) and 506 of the Indian Penal
Code, 1860 (for short "I.P.C.") and for the offence punishable under
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Section 4 of the Protection of Children from Sexual Offences Act,
2012 (for short "POCSO Act").
b) The statement of the Victim came to be recorded. The Victim
was referred for medical examination. The Appellant came to be
arrested. Spot-Panchanama was drawn. The clothes of the Appellant
and that of the Victim came to be seized. The statement of witnesses
were recorded. The necessary documents were collected. On
completion of investigation, the Appellant came to be chargesheeted.
The learned trial Court framed the Charge against the Appellant for
the offence punishable under Sections 376(2)(n), 376(3) and 506 of
I.P.C. and for the offence punishable under Section 6 of POCSO Act
below Exh.11. To prove the Charge, the prosecution examined in all
six witnesses and brought on record the relevant documents. After
the prosecution filed the evidence closure pursis, the statement of
the Appellant came to be recorded under Section 313(1)(b) of Cr.P.C.
The Appellant stated that, he was falsely implicated. Appreciating
the evidence available on record the learned trial Court passed the
impugned judgment and order.
3. Heard the learned Advocate for the Appellant, the learned
A.P.P. for the State and the learned Advocate for the Victim.
Scrutinized the evidence available on record.
a) It is submitted by the learned Advocate for the Appellant that,
the prosecution failed to establish that, the Victim was a 'child' i.e.
below 18 years of age. The evidence of Victim clearly goes to show
that, she was having love affair with the Appellant and she was the
consenting party. Medical evidence nowhere shows the violent or
forcible injuries on the Victim. The learned trial Court did not
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appreciate the evidence on record in its right perspective. The
Appellant was entitled for acquittal and the Appeal be allowed.
b) It is submitted by the learned A.P.P. that, the prosecution has
proved the date of birth and the age of Victim. The birth certificate
issued by the Grampanchayat, Roha was brought on record in the
evidence of the Victim. The Victim was the 'child' at the time of
offence. No challenge was raised to the said date of birth. The
prosecution proved the Charge by examining the relevant witnesses.
No fault can be found with the impugned judgment and order and
the Appeal be dismissed.
c) It is submitted by the learned Advocate for the Victim that, she
adopts the submissions made by the learned A.P.P. She cited the
decision in P. Yuvaprakash V/s. State represented by Inspector of
Police, (2024) 17 SCC 684 in support of her submission that, in
respect of age of the Victim, the documents provided under Section
94 of the Juvenile Justice (Care and Protection of Children) Act,
2015 (for short "Act of 2015") are relevant. The birth certificate of
the Victim was brought on record to establish that, she was the
'child'.
4. Perusal of the said decision shows that, in para 15 following
observations are made:-
"15. It is evident from conjoint reading of the above
provisions that wherever the dispute with respect to
the age of a person arises in the context of her or
him being 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 court concerned has to
determine the age by considering the following
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documents:
"94. (2)(i) The date of birth certificate from the
school, or the matriculation or equivalent certificate
from the examination Board concerned, 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."
It is further observed that, the burden is always upon the
prosecution to establish what it alleges.
5. In the case at hand to prove the date of birth and age of the
Victim, the prosecution brought on record the birth certificate at
Exh.27 in the evidence of the Victim who is examined as P.W.1.
Though the Victim's evidence shows that, she was taking education
in the school, no document from the school as provided in the above
referred Section of Act of 2015 was brought on record. The evidence
of the parents of the Victim who are examined as P.W.4 and P.W.5
nowhere shows that, they reported the said date of birth to the
concerned authorities. They nowhere deposed in their evidence as to
what was the date of birth of the Victim. It is nowhere the case of
prosecution that, the document from the school was not available.
Though the evidence of Investigating Officer who is examined as
P.W.6 shows that, she issued the letter at Exh.69 to the Gramsewak,
Roha for getting birth certificate of the Victim and the birth
certificate at Exh.27 was received, there is no evidence to show as to
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on what basis the said date of birth mentioned in the said certificate
was entered. With this only evidence on record, the prosecution
failed to establish that, the Victim was the 'child' as defined under
Section 2(d) of the POCSO Act as the document to prove the date of
birth and age of the Victim from the school as observed above in the
judgment in P. Yuvaprakash (supra) is not brought on record.
Though there are no suggestions challenging the said birth
certificate, it was the duty of prosecution to prove the date of birth
and age of the Victim. Thus, the conviction for the offence
punishable under Section 6 of POCSO Act will not sustain.
6. The prosecution's case largely rests on the testimony of the
Victim. Her evidence shows that, in absence of her father, she used to
manage the kirana shop. Sometimes the Appellant used to come to
the kirana shop for purchasing. She shared her mobile number with
the Appellant as the Appellant threatened to kill her mother. At the
instance of the Appellant, she made phone call to the Appellant. The
Appellant expressed his love for her. In April 2019, the Appellant
called her at his house. The Appellant told her to give him call when
her mother was not available. In May 2019, she informed the
Appellant that, her mother had gone to the agricultural field in the
morning at 10 a.m. The Appellant called her to his house and raped
her. At that time, no one was present in the house of the Appellant.
Whenever her mother was not available at home, she used to inform
the Appellant and the Appellant used to visit her home and commit
sexual intercourse with her. It happened for 4 to 5 times. In
January 2020, her mother went to another village. At that time, she
did not inform the Appellant that, her mother was not available.
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When she was alone at her shop the Appellant came and questioned
as to why she did not inform him about the absence of her mother.
The Appellant threatened her that, he will kill her mother by causing
accident if he was not informed by her about absence of her mother.
Due to the threat, she remained silent. On 06.07.2020, her mother
went to another village and was to return on the next day, she
informed the Appellant about the absence of her mother. In the
midnight, she gave a phone call to the Appellant. The Appellant
immediately came to her house and committed sexual intercourse
against her wish. While the Appellant was leaving, her father
noticed him and the Appellant fled. On questioning by her father, she
narrated the incident to him. On the next day when her mother
came home, her father informed her about the incident and Report
was lodged.
7. The Victim was subjected to the cross-examination. She
admitted that, the Appellant's house was near to the kirana shop.
She admitted that, she was on talking terms with the Appellant and
they were having friendly relations. She admitted that, she was
knowing what was right and what was wrong. She admitted that,
her aunt saw her talking with the Appellant and, therefore, her
mother scolded her. She admitted that, she did not inform that, the
Appellant threatened her. She admitted that, if any untoward
incident takes place, one should inform the parents, sarpanch and
the Police Patil. She admitted that, on 07.07.2020 her father was
present at home and the doors were closed. She admitted that, after
the Appellant entered her house and committed sexual intercourse
with her, she did not raise alarm. She admitted that, on 17.08.2020
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she messaged the Appellant to give a call to her. She admitted that,
she used to make the phone calls and sent the messages to the
Appellant from the mobile of her father. Suggestion is denied that,
the Appellant did not commit any sexual intercourse against her
wish and the Report was lodged at the instance of her parents.
8. The evidence of the Victim clearly goes to show that, she was
having friendly relations with the Appellant. They used to talk on
phone. The Victim used to call the Appellant at her house in absence
of her parents. It is strange that, the Victim did not raise any alarm
when the Appellant entered in her house in the midnight and
committed sexual intercourse with her. The only inference which is
possible from the evidence of the Victim is that, she was consenting
party for everything between her and the Appellant. No other
inference is possible from the evidence of the Victim. Her evidence
that, due to threat by the Appellant to kill her mother she shared her
phone number and called the Appellant to her house, is highly
improbable and is required to be seen with doubt. The evidence of
the Victim that, the Appellant raped her does not inspire confidence
and is required to be seen with doubt. The Victim's evidence shows
that, she was the girl having mature understanding. The admissions
given by her clearly goes to show that, her relations with the
Appellant was consensual. Her evidence and the evidence of her
father goes to show that, only after the Victim's father noticed the
Appellant in their house with the Victim in the midnight, the Report
was lodged after the Victim's mother returned to the village. From
this evidence it is clear that, at the instance of the Victim's parents
the Report was lodged against the Appellant. It is clear from the
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Vitim's testimony that, after she called the Appellant in the midnight,
the Appellant came to her house. The Victim's evidence is far from
establishing the Charge.
9. The other evidence is that of the Victim's parents, the Panch
witness, Medical Officer and the Investigating Officer. The medical
evidence do not show any violent marks on the Victim's body. The
absence of hymen was possible due to repeated intercourse. The
history given to the Medical Officer was that, the Victim was in
regular relationship with the Appellant since 2019. The evidence of
these witnesses take the case of the prosecution nowhere.
10. In view of the above discussion, the evidence available on
record do not establish the Charge against the Appellant. It is not
established that, the Victim was the 'child'. The physical contact
between the Appellant and Victim was consensual. With the evidence
available on record, it is not possible to maintain the conviction and
sentence recorded by the learned trial Court. The Appeal succeeds.
Hence, the following order:-
ORDER
i) Appeal is allowed.
ii) The conviction and sentence recorded by the learned trial
Court against the Appellant by the impugned judgment and order
dated 22.06.2023 passed by the learned Additional Sessions Judge,
(Special Judge, POCSO), Bhandara in Special Case (Child
Protection) No.77/2020 for the offence punishable under Sections
376(2)(n), 376(3) and 506 of I.P.C. and for the offence punishable
under Section 6 of the POCSO Act is quashed and set aside.
11 apeal461.2023.odt
iii) The Appellant is acquitted of the offence punishable under
Sections 376(2)(n), 376(3) and 506 of I.P.C. and for the offence
punishable under Section 6 of the POCSO Act.
iv) The Appellant is behind bars. He be released, if not required
in any other offence.
v) The fine amount paid by the Appellant be refunded to him.
vi) The fees of the learned Advocate appointed for the
Respondent No.2 is quantified at Rs.10,000/-. The same shall be
paid by the High Court Legal Services Authority.
vii) The record and proceedings be sent back to the learned trial
Court.
(NEERAJ P. DHOTE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 27/03/2026 11:00:46
