Ajaybhai Jamnabhai Sardar And Another vs The State Of Maharashtra And Another
2026 Latest Caselaw 4624 Bom

Bombay High Court

Ajaybhai Jamnabhai Sardar And Another vs The State Of Maharashtra And Another on 5 May, 2026

2026:BHC-AUG:19992


                                                                     CriAppeal-721-2024
                                                  -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 721 OF 2024

                 1.    Ajaybhai Jamanbhai Sardar,
                       Age 32 Years, Occu : Labour,

                 2.    Jayashri Ajaybhai Sardar,
                       Age -29 Years, Occu : Household,

                       Both R/o : Room No. 404,
                       Shrushti Row House, Sai Residency,
                       Taluka Amroli, District Surat.              ... Appellants
                                                                   (Orig. Accused)
                             Versus

                 1.    The State of Maharashtra,
                       Through Shindkheda Police Station,
                       Taluka Shindkheda, District Dhule.

                 2.    XYZ
                       Through her Father as Natural Guardian      ... Respondents
                                              .....
                 Mr. Anudeep Dilip Sonar and Mr. Mahesh K. Bhosale, Advocates for
                 the Appellants.
                 Mr. B. B. Bhise, APP for Respondent No.1-State.
                 Ms. Usha Jadhav, Advocate for Respondent No.2 (appointed).
                                                 .....

                                         CORAM : ABHAY S. WAGHWASE, J.
                                         Reserved on   : 30.04.2026
                                         Pronounced on : 05.05.2026

                 JUDGMENT :

1. This is an appeal by convicts (original accused) on account of

their conviction dated 11.07.2024 recorded by learned Special Judge

[POSCO] and Additional Sessions Judge, Dhule in Special Case No. CriAppeal-721-2024

17 of 2016, i.e. convicting appellant no.1 Ajaybhai for offence under

Sections 376(2)(i)(n) and 344 of IPC as well as Section 4 Protection

of Children from Sexual Offences Act, 2012 [POCSO Act]. Similarly,

appellant no.2 Jayashri is held guilty, but only for offence punishable

under Section 344 of IPC and is sentenced to suffer imprisonment for

six months.

CASE OF PROSECUTION

2. Both accused were chargesheet by Shindkheda Police Station

for commission of offence under Sections 363, 376(2)(i), 376(2)(n),

344, 504, 506 r/w 34 of IPC and Section 4 of POCSO Act on

accusations that, victim, a minor, who had left the house on

13.08.2015 to attend school, had not returned and therefore, initially

her father lodged report for kidnapping by unknown persons, on the

strength of which, crime was registered bearing no. 101 of 2015.

When the victim returned, she reported that accused took her from

Nandurbar to Ankleshwar and thereafter at Surat and there, he

maintained physical relations with her in a rented premises. On her

above statement, there was addition of offence under Section 376(2)

(i)(n), 344 of IPC and Section 4 of the POCSO Act.

CriAppeal-721-2024

On conclusion of investigation, both accused were made to face

trial before the Special Court, who appreciated the oral and

documentary evidence and accepted the case of prosecution and

convicted both appellants as stated above. Precisely, said judgment

and order of conviction is the subject matter of instant appeal.

SUBMISSIONS

On behalf of the Appellants :

3. Learned counsel for the appellants-convicts would submit that,

there is false implication. That, there is no conclusive proof to hold

victim to be a minor and so as to attract provisions of POCSO Act.

According to him, victim had left her house on her own accord and it

was she who had developed contact with accused and therefore

charges for kidnapping are totally misplaced. He further submitted

that, she had willingly accompanied accused to several places without

raising alarm and resistance and had almost spent months in his

company. Therefore, whatever relations developed, were consensual

and not forceful. According to him, at the instance of father, false and

concocted story has been narrated. He pointed out that, testimony of

victim is an improvised version and moreover, victim is changing her

versions at distinct times, i.e. while giving statement to police, while

giving statement before learned Magistrate and finally while deposing CriAppeal-721-2024

before the court, and as such, it is his submission that, sole testimony

of the victim failing to inspire confidence, ought not to have been

accepted by the trial court for convicting the accused.

4. It is his further submission that, here, there is inordinate delay

in reporting and lodging FIR. There is no evidence about victim to be

taken to places like Ankleshwar, Surat or victim to be confined, as is

the story of prosecution. He pointed out that, case of prosecution is

that, there was conversation on mobile and then further meeting of

accused as well as victim at Nandurbar, but there is no distinct

evidence to that extent.

5. It is further pointed out that, prosecution has failed to record

evidence of persons with whom victim allegedly came in contact.

Such witnesses were crucial but they were not examined by

prosecution and as such, it is submitted that, story of prosecution is

weak and has no foundation, leave aside the evidence.

6. It is submitted that, here, there is no corroboration from

medical evidence and even scientific evidence does not support

prosecution story. As regards to appellant no.2 is concerned, it is

submitted that there are general and vague allegations against her CriAppeal-721-2024

and most of the allegations are directed against main accused. There

is no evidence to show that, said appellant confined the victim or

prevented her from proceeding to any direction and therefore, the

essential ingredients for attracting the charge of Section 344 IPC were

missing in the prosecution evidence. Attributing incorrect

appreciation of evidence and failure to consider law, the impugned

judgment is taken exception to.

On behalf of Respondent State as well as Victim :

7. In answer to above, both, learned APP as well as learned

counsel representing the victim, would point out that victim was

proved to be 14 years of age and as such she to be a minor. That, on

this count, there is convincing evidence of victim, her father and

Headmistress which has remained intact and undisturbed.

8. On the point of occurrence and rape, reliance is placed on

testimony of victim as well as medical evidence. It is pointed out that,

accused was a married man having a daughter. That, he has taken

disadvantage of minority of victim and has committed above serious

offence and therefore they both justify the conviction and pray to

dismiss the appeal for want of merits.

CriAppeal-721-2024

BRIEF ACCOUNT OF DEPOSITIONS BEFORE TRIAL COURT

9. In support of its case, prosecution seems to have examined in

all eight witnesses. Their role and status, as well as the sum and

substance of their evidence can be summarized as under :

10. PW1 father of the victim deposed that date of birth of his

daughter is 25.12.2000 and at the time of incident, she to be studying

in 8th standard. According to him, incident took place on 13.08.2015.

On that day he and his wife had been to agricultural field, but when

they returned at 5.30 p.m., victim had not returned home and

therefore, after inquiry and search, he lodged missing complaint at

Shindkheda police station. According to him, his daughter was not

found for two to three months, but one day she suddenly appeared.

According to him, she was frightened and when his wife took her in

confidence and made inquiry, she reported the incident with her and

was consequently taken to police where his supplementary statement

was recorded. His daughter showed the spot.

While under cross, he admitted that, on 18.08.2015 he had

lodged missing report and that his daughter studied at Chimthane. He

admitted searching his daughter at Surat while she had gone missing.

Rest is all denial.

CriAppeal-721-2024

11. PW2 pancha to spot panchanama and he identified it to be at

Exhibit 54.

12. PW3 is pancha to seizure of clothes of victim at Exhibit 58.

13. PW4 is the victim and her deposition is at Exhibit 59. Her

testimony and cross is dealt at appropriate place.

14. PW5 is the Headmaster who at Exhibit 62 testified that, she was

in-charge Headmistress of Zilla Parishad Marathi School which has

classes from 1st standard to 4th standard. That, victim was student of

their school who had taken admission in their school on 15.06.2007

in 1st standard. She deposed about carrying original register and

stated that the student left the school after 4 th standard and that,

school leaving certificate was issued on 15.06.2011.

While under cross, witness admitted that victim was not in their

school in the year 2015 and that she was deposing only on the basis

of record available in the school and also admitted that school leaving

certificate does not bear her signature.

15. PW6 is the medical officer who, at Exhibit 70, testified about

victim being brought for examination on 24.11.2015 and victim CriAppeal-721-2024

narrated history that she did not know accused and that she was

threatened by her relative to kill her father and was forced to marry

accused on 13.08.2005 and forcibly taken to Surat, staying there for

three days at the house of parents of accused. According to her, victim

gave history that there was forceful penetrative vaginal sexual

intercourse between 13.08.2015 to 16.08.2015.

Medical witness further deposed about following injuries found

on the person of the victim:

i) multiple contused abrasion on the back of right shoulder, age of injury to be 2 to 3 days old.

ii) Multiple contused abrasion on right chest aged 3 to 4 days prior to examination.

There was hymenal tear. Samples were preserved and based on examination findings, opinion was issued that overall findings are consistent with sexual intercourse, however final opinion was kept pending till receipt of FSL report.

While under cross, medical expert has answered that she was

gynecologist and she further admitted that except injuries noted in

column no.5, rest everything was normal. She denied injuries

mentioned in column no.5 to be possible due to inner wears, but

admitted that, there can be tear to hymen due to cycling and playing CriAppeal-721-2024

sports. She denied that she cannot opine whether victim was

subjected to sexual intercourse.

16. PW7 and PW8 are Investigating Officers who deposed about

carrying out investigation at respective times.

APPRECIATION AND ANALYSIS OF AVAILABLE EVIDENCE

AGE DETERMINATION

17. There being charge and also conviction for offence under

Section 4 of POCSO Act, it becomes incumbent on prosecution as well

as court to see whether victim is a "child" as provided under the

POCSO Act.

18. Here, father has given date of birth of victim as 25.12.2000 and

at the time of incident, she to be studying in 8 th standard. Victim also

gave her date of birth as 25.12.2000. PW5 in-charge Headmistress has

placed on record Exhibit 63 which is an extract of original register,

showing admission of victim in 1st standard i.e. on 15.06.2007.

Testimony of this witness also shows that, as per such record, victim's

date of birth is 25.12.2000.

CriAppeal-721-2024

Going by the hierarchy of documents as held in case of Jarnail

Singh v. State of Haryana [2013] 8 SCR 1044 and P. Yuvaprakash v.

State Represented by Inspector of Police [2023] 10 SCR 478 ; 2023

INSC 676, which are required to be relied for age determination,

there is indeed documentary evidence showing date of birth reflected

in the school record at the time of admission of victim in 1 st standard.

Therefore, in the light of above material, there is no hesitation to hold

that victim, at the time of incident, was around 15 years of age and

consequently she is proved to be a minor being below 18 years of age.

OFFENCE

19. Trial court has already acquitted appellant from charge under

Sections 363, 504 and 506 of IPC. There is no challenge by the State

on such finding and therefore, what remains to be considered is

whether charge under Section 376(2)(i)(n) of IPC and Section 4 of

POCSO Act is at all proved by prosecution.

Both above provisions, for ready reference, are reproduced as

under :

CriAppeal-721-2024

"376. Punishment for rape (1) ....

(2) Whoever,-

      (a) to (h)    .....
      (i) commits rape on a woman when she is under
           sixteen years of age; or
      (j) to (m) ...

(n) commits rape repeatedly on the same women,

Shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

Explanation. - For the purpose of this sub-section,-

(a) "armed forces" means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;

(b) "hospital" means the precincts of the hospital and incudes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1961 (5 of 1861);

CriAppeal-721-2024

(d) "women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children."

Section 4 of the POCSO Act reads as under :

"4. Punishment for penetrative sexual assault. -

[1] Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

[2] Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder natural life of that person, and shall also be liable to fine.

[3] The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."

CriAppeal-721-2024

20. Both offences being interlinked, are dealt together. To decide

this issue, evidence of victim alone is crucial, coupled with that of

medical expert.

21. Evidence of victim (PW4) is at Exhibit 59 wherein, in paragraph

3, she deposed about traveling with accused to Baroda and

Ankleshwar for two to three days, then going to Surat and accused

meeting his wife and daughter in a zoo and then they all going to

house of accused and after spending three days, accused taking her to

a house taken on rent where she was confined for three months and

was prevented from going out, and there he committed sexual

intercourse with her time to time.

Victim is subjected to searching cross from paragraph 5 onward

wherein it is brought that, she on her own accord telephoned accused

after returning to village. She denied meeting accused at Surat

Railway Station, accompanying him to Surat for taking money from

his friend, traveling to Jamnagar in luxury bus. She admitted about

accused taking her to a zoo, where there were security guards. She

has admitted in cross para 7 that there was crowd during journey

from Anklewshwar to Surat, including presence of Railway Police and

ticket collector. She also admitted that she did not raise shout during CriAppeal-721-2024

railway journey nor made any complaint with police or ticket

collector. Such cross examination clearly shows that accused has

brought his own presence throughout from Nandurbar till reaching

Surat. She has flatly denied that after visit to the zoo, she returned

back to her own home. Rather, it is further brought that she stayed in

the house of accused approximately for three months. It is also

brought in her cross that accused stayed on the 3 rd floor, though she

expressed ignorance about availability of lift. There are suggestions

that she had become friendly with one Nilam, going to buy grocery,

milk and eatry, playing garba during festival, accompanying accused

and his wife for emersion of Lord Ganpati idol. There is clear

suggestion which she denied that, she resided with accused for three

months on her own will. Again in para 8 of her cross, she has

answered that they had sexual intercourse from time to time.

Consequently, in the light of such cross examination, coupled

with specific defence about acts to be consensual, there is no

hesitation to hold that there were multiple physical contacts by

accused with victim. She being minor, her consent becomes

insignificant.

CriAppeal-721-2024

22. The Hon'ble Apex Court in the recent case of Varun Kumar @

Sonu v. State of Himachal Pradesh and others 2025 INSC 1232

[Criminal Appeal No. 1295 of 2018], has reiterated that victim's

consent, even if assumed, has no legal significance since she was a

minor, by observing that, "even assuming that victim had willfully

volunteered to sexual intercourse, this aspect becomes immaterial as

the victim was minor on the date of incident".

Applying the above law, offence of Section 376(2)(i) and

376(2)(n) of IPC as well as Section 4 of POCSO Act can be said to be

proved.

23. Here, there is conviction of appellants under Section 344 of

IPC, and for ready reference, said provision is reproduced as under :

"344. Wrongful confinement for ten or more days.- Whoever wrongfully confines any person for ten days, or more, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."

24. On this point, learned trial court seems to have made discussion

in paragraphs 43, 44, 45 and 46. If evidence of victim is revisited, it is CriAppeal-721-2024

noticed that in para 3 of her chief, she has stated that, initially

accused took her to his own house, where his brother, mother and

sister resided, and they stayed there for three days. She further claims

that accused told her that he had taken a house of four rooms on rent

and then she claims that, in said house she resided with accused, his

wife and their daughter, and then she makes general allegations that

accused confined her for three months and they did not allow her to

go anywhere nor did they allow her to talk to anyone. In the same

breath, she states that one lady namely Vibha Patel resided in front of

the said house, and victim claims that, she informed such lady that

she wanted to go home and according to her, said lady also told

accused to let her go and then, she claims that, as she was missing her

parents, she was crying for two to three days and she was unable to

eat meal. Therefore, on one day at 5.00 a.m. when all were sleeping,

she claims to have packed her belongings and gone to Surat Railway

Station. So much is her only evidence.

25. To attract above offence, it is incumbent upon prosecution to

prove that, victim was restrained to such an extent that she was

prevented from proceeding in any direction in which she had right to

proceed. It has to be demonstrated that the restraint was wrongful

confinement preventing her from proceeding in circumscribed limits CriAppeal-721-2024

and she was confined or forced to stay against her will by use of

threats, force or coercion. These are some of the essential

requirements to attract rigors of Section 344 IPC.

26. However, above discussed testimony of victim is not fulfilling

above requirements. She has merely stated that she was confined by

accused persons, but by which of the accused or in what manner or by

both of the accused, has not been stated by her. On the contrary,

there are suggestions to her in cross that she has participated in

festivals like garba, emersion of idol of Lord Ganesh and that she used

to visit shops for purchasing provisions. Above all, when she claims

that a lady named Vibha Patel, who resided in front of house of

accused, used to come to the house of accused, she would have been

the best witness because it is victim's version that said lady also

requested accused to let her go to her parents.

27. Consequently, on the point of confinement, there is weak

evidence. Resultantly, conviction of both appellants for the above

charge was unwarranted and only interference to that extent is called

for. Hence, following order :

CriAppeal-721-2024

ORDER

I. The appeal is partly allowed.

II. The judgment and order of conviction dated 11.07.2024 passed by Special Judge [POSCO] and Additional Sessions Judge, Dhule in Special Case No. 17 of 2016, to the extent of conviction of both the appellants i.e. appellant no.1 Ajaybhai Jamanbhai Sardar and appellant no.2 Jayashri Ajaybhai Sardar for the offence punishable under Section 344 of IPC is hereby set aside.

III. Both the appellants are acquitted from offence under Section 344 of IPC.

IV. Rest of the impugned judgment and order dated 11.07.2024 passed by Special Judge [POSCO] and Additional Sessions Judge, Dhule in Special Case No. 17 of 2016, including conviction of appellant no.1 Ajaybhai for offence under Section 376(2)(i)(n) of IPC as well as Section 4 Protection of Children from Sexual Offences Act, 2012 [POCSO Act] is hereby maintained.

V. Bail Bonds of the appellant no.2 Jayashri Ajaybhai Sardar stand cancelled.

VI. The fees of learned counsel appointed to represent respondent no.2 be paid by the High Court Legal Services Sub-Committee, Aurangabad as per Rules.

[ABHAY S. WAGHWASE, J.] vre