Bombay High Court
Narendra @ Guddu S/O Ambadas Wasu vs The State Of Maharashtra, Thr. P.S.O. … on 4 March, 2025
2025:BHC-NAG:2326 Judgment 369 apeal134.23 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPEAL NO.134 OF 2023 Narendra @ Guddu s/o Ambadas Wasu, aged:- 42 years, occupation : teacher, r/o Malgujaripura Beside Ingole Chowk, Beside Mahadeo Temple, Tahsil Wardha, district Wardha. ..... Appellant. :: V E R S U S :: 1. State of Maharashtra, through PSO Wardha (City), Wardha. 2. XYZ (victim) through PSO Wardha (City) Wardha. In Crime No.422/214. ..... Respondents. Shri C.D.Rohankar, Counsel for the Appellant. Mrs.S.S.Dhote, Addition Public Prosecutor for Respondent No.1/State. Ms.Mohini Sharma, Counsel Appointed for Respondent No.2/Victim. CORAM : URMILA JOSHI-PHALKE, J. CLOSED ON : 06/02/2025 PRONOUNCED ON : 04/03/2025 JUDGMENT
1. By this appeal, the appellant (accused) has
challenged judgment and order dated 9.2.2023 passed by
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learned Extra Joint Additional Sessions Judge and Special
Judge, Wardha (learned Judge of the trial court) in
Special (Ch.Act) Case No.31/2016.
2. By the said judgment and order impugned, the
accused is convicted for offence punishable under Section
363 of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for six years and to pay fine
Rs.3000/-, in default, to undergo further simple
imprisonment for six months.
He is further convicted for offence punishable
under Section 12 of the Protection of Children from
Sexual Offences Act, 2012 and sentenced to undergo
rigorous imprisonment for three years and to pay fine
Rs.2000/-, in default, to undergo further simple
imprisonment for three months.
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He is also convicted for offence punishable under
Section 354-A(1)(i) of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for one year
and to pay fine Rs.1000/-, in default, to undergo further
simple imprisonment for one month.
He is further convicted for offence punishable
under Section 506 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for two
years and to pay fine Rs.1500/-, in default, to undergo
further simple imprisonment for one month.
3. Brief facts of the prosecution case are as under:
The victim girl aged about 17 years was residing
with her parents at Nalwadi, Wardha and studying in 11th
Standard in “Keshrimal Kanya Vidyalaya, Wardha”. On
1.9.2014, at about 10:00 am, when she was proceeding
towards school on her bicycle and reached near Rajpal
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Petrol Pump, the accused restrained her by coming on a
motorcycle. As nobody was present there, he insisted her
to sit on his motorcycle and took her at his house. He
was residing on a rented premises owned by Savita
Gondane. When the victim girl was brought in the
courtyard of the house, she disclosed to Savita that the
accused forcefully brought her and asked her to call her
mother. On which, the accused fled away from the spot
of the incident. The victim girl subsequently along with
her mother and Savita approached police station and
lodged the report. After registration of the crime, the
Investigating Officer has visited the alleged spot of the
incident, and drawn the spot panchanama. The accused
was arrested. The Investigating Officer has collected the
information as to the vehicle of the accused as well as his
service record. After completion of the investigation,
chargesheet came to be submitted against the accused.
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4. Learned Judge of the trial court framed the charge
vide Exh.5. The contents of the charge are read over to
the accused who pleaded not guilty and claimed to be
tried.
5. In support of the prosecution case, the prosecution
examined in all seven witnesses, as follows:
PW Names of Witnesses Exh. Nos. Nos. 1 Victim 12 2 mother of the victim 36 3 Amit Tiwari 38 4 Savita Gondane 60 5 Mohd. Awes, Junior Clerk in office of the 63 Registrar 6 Sushma Bisandare, Investigating Officer 66 7 Suhasini Sahastrabudhe, Investigating 76 Officer
1. Besides the oral evidence, the prosecution placed
reliance on report Exh.13, birth certificate Exh.14, FIR
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Exh.15, Birth Certificate Exh.50, letter to RTO Exh.69,
communication from RTO Exh.70, letter to Primary
School Sindhi Vihir Exh.71, communication from the
School to the Police Station Exh.72, letter to the BDO
Exh.73, communication from BDO Exh.74, arrest
panchanama Exh.77, seizure memo Exh.78, spot
panchanama Exh.79.
2. All incriminating articles are put to the accused by
recording his statement under Section 313 of the Criminal
Procedure Code. The defence of the accused is of total
denial. In support of his defence, he has examined his
wife Archana vide Exh.91.
3. After recording the evidence and appreciating the
same, learned Judge of the trial court was pleased to hold
the accused guilty and sentenced him as the aforesaid.
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4. Heard learned counsel Shri C.D.Rohankar for the
accused, learned Additional Public Prosecutor
Mrs.S.S.Dhote for respondent No.1 (the State), and
learned counsel Ms.Rohini Sharma appointed for
respondent No.2 (the victim). They have taken me
through the entire evidence on record.
5. Learned counsel for the accused submitted that the
evidence of the victim is suffering from infirmities.
Admittedly, the accused was unknown to her. The
identification of the accused is not carried out. No
independent witness is examined by the prosecution to
prove the charge. The accused is implicated in crime as
there is a dispute between PW4 Savita Gondane, his land
lady, on account of rent. Therefore, with the help of the
victim, he is implicated falsely. He further submitted that
spot of the incident is a dense locality and from the said
place taking the victim against her consent is completely
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improbable and unbelievable story. Thus, considering the
nature of the evidence and material omissions and
contradictions, the evidence of the victim is not believable
and liable to be discarded.
6. Learned Additional Public Prosecutor for the State
and learned counsel appointed for the victim supported
the judgment impugned in the appeal and submitted that
the evidence of the victim is not only corroborated by the
evidence of PW4 Savita but also it is corroborated by the
evidence of the mother of the victim who received phone
calls of said Savita and and PW3 Amit Tiwari who
accompanied the mother of the victim. The victim was
found at the house of Savita. The Investigating Officer
has collected the information as to the vehicle and the
involvement of the accused is revealed. Non holding of
the Test Identification Parade is not fatal to the
prosecution as the victim has identified the accused
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before the court which is a substantial evidence. Thus,
the appeal has no merits and liable to be dismissed.
7. The accused is charged with an offence of
kidnapping the victim from the lawful guardianship of her
parents. Being she is a minor, the definition of Section
363 of the Indian Penal Code as to kidnapping requires to
be looked into. The said Section deals with the
punishment for kidnapping. Section 361 of the Indian
Penal Code ((137)(1)(b) of the BNS), defines “kidnapping
from lawful guardianship” that whoever takes or entices
any minor under [sixteen] years of age if a male, or under
[eighteen] years of age if a female, or any person of
unsound mind, out of the keeping of the lawful guardian
of such minor or person of unsound mind, without the
consent of such guardian, is said to kidnap such minor or
person from lawful guardianship.
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Explanation to the said Section states that, the
words “lawful guardian” in this section include any person
lawfully entrusted with the care or custody of such minor
or other person.
8. As per the evidence of the victim, at the relevant
time, she was 17 years of age. Her birth date narrated by
her is 9.12.1997. As far as her cross examination is
concerned, her age or date of birth is not challenged by
the defence.
9. To prove her age, the prosecution has also
examined PW5 Mohd. Owes who testified that he is
serving as a Junior Clerk in the office of Births and Deaths
Registration since 2014. On the basis of the record, he
stated the date of birth of the victim is 9.12.1997. He
brought extract of the register Exh.64 and submitted that
entry as to the birth of the victim was taken on the basis
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of the information received from the Government
Hospital. The said fact is confirmed through the cross
examination also. He admitted during cross examination
that the entry was taken on the basis of information
received from the Government Hospital. The birth
certificate Exh.14 is also on record which shows date of
birth of the victim as 9.12.1997.
10. As far as cross examination of the victim on the
date of birth is concerned, nothing is brought on record
and it remained unchallenged. The said birth certificate
is issued by the Chief Officer of the Municipal Council at
Wardha under the provisions of Sections 12/17 of the
Registration of Births and Deaths Act, 1969.
11. PW5 Junior clerk Mohd Owes stated on the basis of
the record that birth entry was taken on the basis of the
information received from the hospital.
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12. As per Rule 9 of the Maharashtra Births and Deaths
Registration Rules 1976, this certificate is issued by the
Sub Registrar acting under the provisions of the
Registration of Births and Deaths Act, 1969.
13. Section 7 of the said Act thereof deals with
appointment of registration for each local area comprising
the area within the jurisdiction of a municipality,
panchayat or other local authority or any other area or a
combination of any two or more of them. It is duty of
the Registrar to register every birth which took place in
his jurisdiction. This Act mandates that the Registrar
should discharge his duties carefully.
14. Section 8 of the said Act mandates that each head
of the house to report birth in the family to the Registrar.
15. As per provisions of Sections 12 and 17 of the
Registration of Births and Deaths Act, 1969 the birth
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certificate as such is issued by the public officer and it is a
document forming record of the acts of the public officer
and, therefore, the same is a public document within the
meaning of Section 74 of the Indian Evidence Act and the
same is admissible in evidence in view of Section 77 of
the Indian Evidence Act. Section 17 of the said Act
provides for search of Birth Register and supply of extract
thereof by certifying the same by the Registrar or other
authorized Officer. Section 17 of the said Act provides
that such extract shall be admissible in evidence for the
purpose of proving birth or death to which the entry
relates. The birth certificate is in fact the extract of Birth
Register in respect of entry of birth of the victim child and
as such, admissible in evidence. Section 35 of the
Evidence Act makes it clear that if entry is made by public
servant in the official book in discharge of his official
duty, such entry becomes the relevant fact and admissible
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in evidence. Section 35 of the Act lays down that entry
in any public, official book, register, record stating a fact
in issue or relevant fact and made by a public servant in
the discharge of his official duty specially enjoined by the
law of the country is itself the relevant fact. To render a
document admissible under Section 35, three conditions
must be satisfied, firstly, entry that is relied on must be
one in a public or other official book, register or record,
secondly, it must be an entry stating a fact in issue or
relevant fact; and thirdly, it must be made by a public
servant in discharge of his official duty, or any other
person in performance of a duty specially enjoined by law.
16. It is, thus, clear that the birth certificate issued by
the public officer or by the competent authority under the
provisions of the Registration of Births and Death Act and
the Rules framed thereunder is required. The birth
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certificate of the victim girl is issued in compliance with
the above said provisions.
17. Rule 12(3) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 reads thus:
“Rule 12(3) : In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall be conducted by the
court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining-
(a) i. the date of birth certificate from the s
chool (other than a play school) first
attended; and in the absence whereof;
ii. the birth certificate given by a
corporation or a municipal authority
or a panchayat;
iii. the matriculation or equivalent
certificates, if available;
(b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.
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18. The Hon’ble Apex Court in the case of Jarnail
Singh vs. State of Haryana, reported in 2013 ALL MR
(Cri) 2946 observed that even though Rule 12 is strictly
applicable only to determine the age of a child in conflict
with law, we are of the view that the aforesaid statutory
provision should be the basis for determining age, even
for a child who is a victim of crime. For, in our view, there
is hardly any difference in so far as the issue of minority
is concerned, between a child in conflict with law, and a
child who is a victim of crime. Therefore, in our
considered opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to determine the age of
the prosecutrix. The manner of determining age
conclusively, has been expressed in sub-rule (3) of Rule
12 extracted above. Under the aforesaid provision, the
age of a child is ascertained, by adopting the first
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available basis, out of a number of options postulated in
Rule 12(3). If, in the scheme of options under Rule 12(3),
an option is expressed in a preceding clause, it has
overriding effect over an option expressed in a
subsequent clause. The highest rated option available,
would conclusively determine the age of a minor. In the
scheme of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the highest rated
option. In case, the said certificate is available, no other
evidence can be relied upon. Only in the absence of the
said certificate, Rule 12(3), envisages consideration of
the date of birth entered, in the school first attended by
the child. In case such an entry of date of birth is
available, the date of birth depicted therein is liable to be
treated as final and conclusive, and no other material is
to be relied upon. Only in the absence of such entry, Rule
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12(3) postulates reliance on a birth certificate issued by a
corporation or a municipal authority or a panchayat.
19. Thus, the birth certificate issued in the present
case is in compliance with the provisions of the
Registration of Births and Deaths Act and therefore the
evidence is acceptable.
20. As observed earlier, the age of the victim girl is not
seriously challenged by the defence. Thus, there is no
hesitation in holding that the victim was below 18 years
of age at the time of the incident.
21. Second ingredient to be proved to prove the
offence of kidnapping is as to the person was taken or
enticed without consent of such guardianship.
22. The evidence of the victim is relevant which states
that on the day of the incident i.e. 1.9.2014 when she was
proceeding to her school on bicycle, the accused who was
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unknown to her restrained her and took her forcefully on
his motorcycle at his house with an ill-intention in
courtyard of the house. She met Savita to whom she
disclosed the incident that she was brought by the
accused with an ill-intention and, therefore, the accused
was restrained. However, he fled away on his motorcycle.
Her evidence further shows that her mother’s mobile
number was mentioned on her ID Card. Therefore, she
requested Savita to call her mother. Said Savita called her
mother. Immediately, her mother came at the spot of the
incident with PW3 Amit Tiwari. The victim and Savita
narrated the incident to both of them. The evidence of the
victim further shows that she was brought by the accused
by threatening her and the accused has also told her that
he will give a book of obscene picture and also enquired
with her in an indecent manner.
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23. The evidence of the victim is further corroborated
by PW4 Savita who testified that on the day of the
incident, the accused brought a a girl of 15-16 years.
After entering into the gate, he disclosed that the girl is
his relative but the girl disclosed to her that the accused
brought her forcefully and she took the possession of the
girl and driven him out of the house. Thereafter, the
accused was insisting the girl to come at his house and
subsequently fled away. On the request of the girl, she
made a phone to the mother of the victim and
immediately called her at her house. The mother came
along with PW3 Amit Tiwari. The mother of the victim
has also substantiated the contention that she received a
phone call of Savita and, therefore, she immediately came
to the spot along with Amit Tiwari as her husband is
serving in police and was deputed on Bandobast Duty at
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Mumbai. Savita as well as her daughter narrated the
incident to her.
24. PW3 Amit Tiwari also deposed that he received a
phone call of the mother of the victim who requested him
to come along with her and, therefore, he came and saw
the victim siting at the house of Savita and was scared
and crying.
25. These three witnesses are cross examined at length.
The nature of the cross examination of the victim is that
the place from which she was brought is a crowded place
which is denied by the victim. It is further brought on
record that the accused was unknown to her and she was
not called for the identification parade. The cross
examination of the victim itself shows the accused forced
her to sit by holding her hands. It was suggested that he
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is implicated on the say of Savita as there is a strained
relationship between him and said Savita.
26. The mother of the victim is also cross examined
and she in her cross examination reiterated that she
received a phone call from Savita and, thereafter, she
came at the spot.
27. PW3 Amit Tiwari also in his cross examination
stated that the house of Savita is on main road and there
are many houses.
28. As far as cross examination of PW4 Savita Gondane
is concerned, it has come in her cross examination that
the accused was her tenant. Rest of the contentions that
he is implicated on the say of Savita is denied by her.
29. On considering the evidence of the victim and
other prosecution witnesses, it has to be seen whether
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offence of kidnapping from lawful guardianship is made
out.
30. Thus, taking or enticing away a minor out of the
keeping of a lawful guardian is an essential ingredient of
the offence of kidnapping.
31. To find out whether the act played by the accused
amounts to “taking” out of the keeping of the lawful
guardian, learned counsel for the accused submitted the
story narrated by the victim itself is improbable as the
spot of the incident narrated by the victim is a crowded
place. The victim is cross examined at length. However,
nothing incriminating is brought on record to show that
any other persons were present at the spot of the incident
when the alleged incident has taken place. On the
contrary, corroborative evidence of Savita clearly
establishes that the victim was brought by the accused in
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the courtyard of her house. It was she who restrained
the accused and the victim has disclosed the fact that she
is forcefully brought by the accused. The victim was also
found at the house of Savita by the complainant and PW3
Amit Tiwari.
32. Thus, the evidence on record sufficiently shows
that the victim was brought by the accused.
33. Admittedly, there is a distinction between “taking”
and allowing a minor to accompany a person.
34. The evidence of the victim sufficiently establishes
that the accused solicited and persuaded and forced the
victim to sit on his motorcycle and she was brought at the
spot of the incident by using force. This evidence
sufficiently shows that the accused took the victim from
the lawful guardianship of her father and thereby
committed an offence of kidnapping.
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35. The allegations levelled by the victim are that the
accused forcefully brought her and enquired with her in a
an indecent manner by asking about her menses and
whether she had a pubic hair in her underarm. He has
also told her that he would show a obscene book to her.
As far as this aspect is concerned, the same is absent in
the FIR. Subsequently, her statement was recorded by the
investigating officer on 3.9.2014 i.e. after two days and
first time these aspects are narrated by her. The said
omissions are brought on record by the defence counsel
and also proved through the evidence of the investigating
officer.
36. The accused is convicted under Section 354-A(1)
(i) of the Indian Penal Code. The said Section states
about sexual harassment and punishment for sexual
harassment. As per the said Section, a man committing
any of acts viz. physical contact and advances involving
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unwelcome and explicit sexual overtures; or a demand or
request for sexual favours; or showing pornography
against the will of a woman; or making sexually coloured
remarks, shall be guilty of the offence of sexual
harassment.
37. Though the victim has stated that the accused told
her about the obscene pictures as well as enquired with
her in an indecent manner, the same have not been
narrated by her in the FIR while lodging the report. After
two days, she disclosed the said fact and no explanation is
brought on record by the prosecution why she has not
narrated the incident at the initial stage.
38. Thus, the evidence of the victim as to the offence
under Section 354-A(1))(i) of the Indian Penal Code falls
short.
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39. The accused is further convicted under Section 12
of the Protection of Children from Sexual Offences Act,
2012.
40. The definition of “sexual harassment” is given
under Section 11 of the Protection of Children from
Sexual Offences Act which shows that a person is said to
commit sexual harassment upon a child when such
person with sexual intent, (i) utters any word or makes
any sound, or makes any gesture or exhibits any object or
part of body with the intention that such word or sound
shall be heard, or such gesture or object or part of body
shall be seen by the child; or (ii) makes a child exhibit his
body or any part of his body so as it is seen by such
person or any other person; or (iii) shows any object to a
child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or
contacts a child either directly or through electronic,
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digital or any other means; or (v) threatens to use, in any
form of media, a real or fabricated depiction through
electronic, film or digital or any other mode, of any part
of the body of the child or the involvement of the child in
a sexual act; or (vi) entices a child for pornographic
purposes or gives gratification therefor.
41. As far as the evidence in the present case is
concerned, the accused took the victim on motorcycle
with an ill-intention. There is no other evidence adduced
by the prosecution. There is no explanation also by the
prosecution as to the omissions and contradictions which
are brought on record by the defence.
42. As far as sexual intent is concerned, admittedly, at
the initial stage, these facts are not narrated by the victim.
The intention of the accused can be ascertained from the
fact that by seeing the victim alone he took her by holding
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her hands and forcing her to sit on his motorcycle, but as
far as offences under Sections 354-A(1)(i) of the Indian
Penal Code and 12 of the POCSO are concerned, the
ingredients are absent.
43. The prosecution has also adduced the evidence of
PW6 Sushma Bisandare and PW7 and Suhasini
Sahastrabudhe, who Investigating Officers.
44. The evidence of PW6 Sushma Bisandare shows that
she communicated with the RTO to obtain information of
the vehicle MH-32/T/1507 on the basis of the
information received vide Exh.70. The said vehicle
belongs to the accused which was used in commission of
the crime. During the investigation, it further revealed
that the accused was serving as teacher in higher primary
school at Sindhi Vihir and it revealed that on 1.9.2014 he
was absent in the school. It further reveals that accused
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was absent from 13.8.2014 without submitting any
application.
45. The evidence of PW7 Suhasini Sahastrabudhe
narrates about the investigation carried out by her. From
her cross, an attempt was made to bring on record that
the alleged spot of incident is a crowded place.
46. It is pertinent to note that though it was a crowded
place, it is not essential that at every time it would be a
crowded place. It is the general experience that people
are reluctant to indulge in the activities which are taking
place around them and, therefore, merely because the
spot was a crowded place, the same is not sufficient to
discard the evidence of the victim especially when it was
corroborated by other evidence like the evidence of PW4
Savita and the fact that the victim was found at the house
of Savita who was brought by the accused.
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47. Thus, there is a sufficient evidence on record to
show that the victim was taken by enticing her and
thereby committed an offence under Section 363 of the
Indian Penal Code.
48. As far as the conviction of the accused under
Sections 354-A(1)(i) of the Indian Penal Code and 12 of
the POCSO Act is concerned, the same is not sustainable
due to in absence of the evidence. However, the
conviction of the accused under Sections 363 and 506 of
the Indian Penal Code requires to be maintained as the
prosecution has established the charge against the
accused to the extent that she was not only enticed and
taken by the accused but also she was threatened by the
accused.
49. In this view of the matter, I find that learned Judge
of the trial court rightly convicted the accused under
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Sections 363 and 506 of the Indian Penal Code. However,
the conviction under Sections 354-A(1)(i) of the Indian
Penal Code and 12 of the POCSO Act is not justified.
50. In view of the above, I pass following order:
ORDER
(1) The Criminal Appeal is partly allowed.
(2) The judgment and order dated 9.2.2023 passed by
learned Extra Joint Additional Sessions Judge and Special
Judge, Wardha (learned Judge of the trial court) in
Special (Ch.Act) Case No.31/2016 convicting the accused
under Sections 363 and 506 of the Indian Penal Code is
maintained.
(3) The conviction of the accused under Sections 354-
A(1)(i) of the Indian Penal Code and 12 of the POCSO
Act is hereby quashed and set aside.
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(4) The accused is acquitted of offences under Sections
354-A(1)(i) of the Indian Penal Code and 12 of the
(5) Fees of learned counsel Ms.Mohini Sharma appointed
for the victim be quantified and the same be paid to her as
per rules.
Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 07/03/2025 11:54:48