Bombay High Court
Sandip Nanasaheb Nikam vs The State Of Maharashtra And Another on 30 January, 2026
2026:BHC-AUG:4844
1 930.Cri.Appeal.401.2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 401 OF 2021
Sandip Nanasaheb Nikam
Age: 34 years, Occ. Labour,
R/o. Gautamnagar, Railway Station,
Rahuri, Taluka Rahuri,
District Ahmednagar. ...Appellant
Versus
1. State of Maharashtra
Through the Rahuri Police Station,
Tq. Rahuri, Dist. Ahmednagar.
2. XYZ
Victim ( Crime no. 371/2019) ...Respondents
...
Advocate for Appellant: Mr Arora Shyam C.
APP for Respondent No. 1: Mr V.K. Kotecha
...
CORAM : RAJNISH R. VYAS, J.
DATE : 29TH JANUARY, 2026
ORAL JUDGMENT :
1. Challenge in this appeal is to the judgment of conviction awarded by Additional Sessions Judge, Ahmednagar, on 13.07.2021, in Special Case No. 300/2019, by which, the appellant was convicted for commission of offences punishable under Sections 354-A, 354-D, 504 and 506 of the Indian Penal Code (hereinafter would be referred to as 'the IPC' for the sake of brevity), and Section 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter would be referred to as 'the 2 930.Cri.Appeal.401.2021.odt Act of 2012'for the sake of brevity). The appellant was sentenced to undergo rigorous imprisonment for two years for the commission of an offence under Section 12 of the Act of 2012, and pay a fine of Rs. 5,00/-. The default sentence was also imposed.
2. For the commission of the offence punishable under Section 506 of the IPC, a sentence of rigorous imprisonment for one year and a fine of Rs.5,00/- were imposed. The default sentence was also imposed.
3. So far as the commission of the offence punishable under Section 504 of the IPC is concerned, a sentence of one year and a fine of Rs. 5,00/-, including a default sentence, was imposed.
4. A criminal law was set in motion based on information supplied by P.W. 1 to the police station on 17.05.2019, which resulted in the registration of First Information Report No. 371/2019. During the course of the investigation, the appellant/accused was arrested and thereafter subjected to a medical examination, as was the victim. Clothes of the victim and the accused were seized and referred for opinion to the chemical analysis. After the investigation was completed, a charge sheet was filed.
5. On 27.01.2020, charges were framed against the appellant for the commission of offences punishable under Sections 354-A, 354-D, 504, 506 of the IPC and Section 8 of the Act of 2012. The appellant did not plead guilty to the charge. To bring home the charge, the prosecution examined four witnesses.
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6. Thereafter, the questions were put to the appellant under Section 313 of the Code of Criminal Procedure. The defence of the appellant was that of false implication and total denial. The appellant neither entered into the witness box nor examined any witnesses. The Additional Sessions Judge, Ahmednagar, on 13.07.2021, in Special Case No. 300/2019, convicted the appellant for the offences stated above.
Date Of Birth
7. At this juncture, it is necessary to mention here that since the accused is convicted for the commission of an offence under the Act of 2012, it will have to be looked into whether the prosecution has proved that the victim at the time of the incident was a child as defined under Section 2 (d) of the Act of 2012.
8. At the outset, it is necessary to mention here that the date of birth (19.11.2005 ) of the victim was admitted by the accused. Exh. 24 is the birth certificate, which at the bottom shows a remark made by the defence counsel that the date of birth is not disputed.
Arguments By Accused-
9. Learned counsel Mr Arora, pointing out the evidence of this victim, contended that the story advanced by the prosecution is totally false and concocted, as a report was lodged against the victim's mother and father under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and therefore the appellant was falsely implicated. He submitted that, even according to the victim's 4 930.Cri.Appeal.401.2021.odt admission that she had not saved the mobile number, the victim had stated that she had made phone calls to the accused on two to three occasions. He thus submitted that her version cannot be relied upon. He further submitted that, even if the case forwarded by the prosecution is accepted as it is, though not admitted, the sexual intent is not proved.
10. He submitted that several independent witnesses were available, but were not examined by the Investigating Officer, which further strengthens his defence.
11. According to him, no call details were collected, and the record regarding the case that was filed against the victim's parents by the appellant's wife was not produced on record. He submitted that the school's attendance sheet was also not brought on record, which could have supported the defence version.
12. According to Mr Arora, the genesis of the crime was suppressed by the prosecution, since there are several lapses on the part of the Investigating Officer. Referring to the spot of the incident and the testimony of P.W. 3, Mr Arora argued that the spot panchnama is false. He stated that P.W. 3 - Chhaya, who was the witness to the spot panchnama, said that on 20.05.2019, she was in an office from 10 a.m. to 04:45 p.m. and thereafter, along with another panch, Sonar, she went to the police station. She reached the police station at about 04:50 p.m., and they went to the incident site at Tandulwadi in a police jeep.
13. Thus, it is submitted that the spot was visited after 04:50 p.m., whereas the spot panchnama, which is at exhibit 20, shows that the 5 930.Cri.Appeal.401.2021.odt date of visit to the place of occurrence is 20.05.2019, and the timing is 11:30 a.m. to 12:15 a.m. He thus submitted that the spot panchnama cannot be relied on.
14. Mr. Arora, challenging the victim's mother's testimony, submitted that the version of P.W. 1 cannot be relied upon. This witness had admitted that C.C.T.V. cameras were installed at her house, but the Investigating Officer did not bring anything on record by seizing the C.C.T.V. camera or footage. He further submitted that she had admitted that complaint under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which was filed by the wife of the accused against her husband and was pending at the relevant time in the Court. In the aforesaid background, he submitted that neither the testimony of P.W.1 nor P.W. 2 can be relied upon, since the victim has narrated the incident as per the say of her mother.
Arguments By Prosecution
15. Per contra, Mr Kotecha, learned APP, submitted that there is absolutely no reason to disbelieve the prosecution's testimony, as it is reliable and cogent. He submitted that no evidence was brought on record by the defence to rebut the presumption. According to him, the accused did not explain his false implication. He submitted that there is no reason for the victim and her mother to depose falsely. He further pointed out that, though the defence has taken the stand that the case was filed under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, if the document filed by the accused below Exh. 51 is 6 930.Cri.Appeal.401.2021.odt seen, it would reveal that the FIR no. 397/19 filed against the parents of the victim is dated 24/5/19, whereas FIR no. 371/19, in the instant case, was filed on 17/5/19. He further submitted that lapses in the investigation cannot, by themselves, constitute a ground for acquittal. He submitted that, in fact, there are no lapses.
16. Per contra, learned APP Mr Kotecha, submitted that even if Exhibit 20 is ignored, the prosecution has proved the case beyond a reasonable doubt. He further submitted that the testimony of PW 1, if perused, would reveal that CCTV was installed after the incident.
Discussion
17. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellant and learned APP. It would be necessary to discuss the testimony of relevant witnesses.
18. The victim in her testimony, who was examined as P.W. 2, had stated that she was studying in 9th standard and her mother was doing tailoring work, whereas her father was a truck driver. Her date of birth was 19.11.2005. She stated that when she was in 8th standard, she used to attend school by bus, at which time the accused would come by and speak with her. She stated that the accused was known to her and that he resided near her house.
19. On 11.04.2019, at about 08 a.m., when the victim was waiting for the school bus in front of her house, the accused came and tried to give his mobile number, which the victim did not take. The 7 930.Cri.Appeal.401.2021.odt accused then threatened her that if she refused to take his mobile number, he would tell the victim's father that she was with him. The victim, therefore, became frightened and took down the accused's mobile number. It was also deposed that the accused wrote down his mobile number on the victim's hand.
20. According to the victim, on 12.04.2019, when she was waiting for the school bus, the accused arrived and asked her why she had not called him, even though she had his mobile number. The victim then replied that she did not have a mobile phone to call the accused; hence, she did not call the accused.
21. The victim further deposed that on 30.04.2019 at about 08.00 a.m., when she was standing near her house, the accused saw the mobile in the victim's hand and approached her. The accused then enquired why she had not called him, even though the victim had a mobile. Accused then caught hold of her hand, said he liked her very much, and left. At that time, nobody was there. She was alone. She got frightened. She therefore did not disclose it to anyone.
22. According to the victim, on the same day, after returning to the house from class on Scooty, the accused came near the water tank at the village and stopped her and caught hold of her hand. The accused then told the victim to go with him to the 'village'. The victim told him that she would not come as her father would beat her. Then, the victim released her hand from the clutches of the accused and went to the house. Due to the threat of the accused, she made a phone call to the accused 8 930.Cri.Appeal.401.2021.odt once or twice.
23. The victim deposed that the aforesaid incident was told by her to her mother at about 04:00 p.m. and thereafter, on 03.05.2019, the incident was disclosed to the father of the victim. On that day, they went to the accused's house, and the victim's parents persuaded the appellant not to harass the victim. After one week, the accused was found frequently wandering in front of the victim's house, and the victim's mother enquired and asked him not to do so.
24. It was deposed that the accused got annoyed and gave abuse to the mother, and also threatened her. Consequently, the victim's mother lodged a complaint with the police station on 21.05.2019. Police recorded her statement.
25. The victim was subjected to cross-examination in which she admitted that her paternal aunt was working with the Police Department and her paternal uncle had constructed a bungalow on the western side of the house. She volunteered that the bungalow was a long way from the house. She further admitted that the phone number written on her hand by the accused was not saved on her phone. She admitted that her school attendance sheet is maintained. She admitted that after returning from school, she helped her mother with household work and studied at home. She admitted that on 22.03.2019, she took admission in one academy and thereafter had no concern with her old school. She further admitted that after taking admission in the academy, she never went to the village where her old school was situated.
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26. In her testimony, she admitted that when police recorded her statement, her mother was with her, and it was recorded by the police, as per the victim's mother.
27. P.W. 1 is the victim's mother, who had stated that the date of birth of the victim was 19.11.2005, and the incident was disclosed to her on 30.04.2019. Thereafter, she had narrated the incident as already discussed. The incident, as narrated in the victim's testimony, is also deposed by P.W. 1 in her statement.
28. It is pertinent to mention that during the examination-in- chief, P.W. 1 stated that the accused was a married person with three children. P.W. 1 has also proved the complaint below, Exhibit 15. She admitted in her cross-examination that the house of the appellant and her house were not adjacent to each other, and the appellant was doing the hotel business. The accused's hotel was on the side of the railway gate. She denied the suggestion that on 10.05.2019, the wife of the accused and other persons had filed a complaint against her at the police station, and that in the said complaint, it was stated that P.W. 1 was filing a false case against them. She admitted that the wife of the accused had filed a complaint under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act against her husband, and that the case was pending in the District Court at the relevant time. She further admitted that the road from the village to the water tank and police station was busy.
29. She further stated that from 30.04.2019 till 16.05.2019, the timing of the school of the victim was between 08:00 a.m. and 03:00 p.m. 10 930.Cri.Appeal.401.2021.odt She volunteered that after both incidents involving her daughter and husband, she arranged for CCTV in her house. The other suggestions she denied.
30. Perusal of the record shows that the victim was born on 19.11.2005, and the first date of the incident is 11.04.2019. Thus, on the date of the incident, the victim was under sixteen years of age. As the accused is convicted for the commission of an offence punishable under Section 354-A, it is necessary to discuss the applicability of Section 354- A to the case in hand.
31. Section 354- A of the IPC defines sexual harassment and prescribes punishment for sexual harassment. It says that a man committing any of the acts, including the physical contact and advances involving unwelcoming and explicit sexual overtures; or a demand or requests 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.
32. In this case, the question is whether there was a physical contact and advances involving unwelcome and explicit sexual overtures or a demand or request for sexual favours?
33. At this juncture, the testimony of the victim is required to be looked into. It is an undisputed fact that at the time of the commission of the offence, the accused was more than 30 years of age, had a wife and children, whereas the victim was 13 years and 5 months. The victim in her testimony had categorically stated that the accused used to come to 11 930.Cri.Appeal.401.2021.odt the bus stop and talk with her. She also stated that on 11.04.2019, the accused tried to give his mobile number to the victim, but she refused to accept it. Accused then threatened her and asked her to take the mobile number of the appellant. The accused wrote down the mobile number on her hand.
34. On 12.04.2019, again, the accused came and asked the victim why she did not call him.
35. On 30.04.2019, the accused, when he saw the mobile in the hand of the victim, again came and asked why she did not call him and caught hold of her hand. The accused further told her that he liked the victim very much and left. On the same day, when the victim returned to her house after attending classes, the accused approached the water tank, stopped her, grabbed her hand, and told her to come with him to a village. The victim refused and got her hand released from the clutches of the accused.
36. The said testimony will make it clear that it is on 11.04.2019, 12.04.2019 and 30.04.2019, the accused has touched the body of the victim. In this regard, it is necessary to take into consideration the provisions of the Indian Evidence Act, more particularly Section 8, which says that the conduct of any person of an offence is relevant if such conduct influences or is influenced by any fact in issue or relevant fact, and whether the conduct was previous or subsequent thereto.
37. The appellant's conduct - following a thirteen-year-old girl repeatedly, forcibly writing his mobile number on her hand, and 12 930.Cri.Appeal.401.2021.odt repeatedly asking her to call - clearly demonstrates a sexual intent. Furthermore, holding her hand when no one else was present while stating he liked her, and doing so again on a subsequent occasion while asking her to come to the village and refusing to release her despite her efforts, shows there was no legitimate, non-sexual purpose for his actions. In this regard, observations made by the Hon'ble Apex Court in the case of Attorney General for India and others Versus Satish and others, AIR 2022 SC 13, are relevant, in which the Hon'ble Apex Court has observed that the circumstances in which touch or physical contact occurs are determinative of whether it is motivated by "sexual intent". While there could be good explanations for physical contact that improves the relationship between a child and an adult, the length of contact and its purpose must be carefully examined to distinguish it from instances where there is a wrongful sexual purpose for the contact.
"76. The circumstances in which touch or physical contact occurs would be determinative of whether it is motivated by 'sexual intent'. There could be a good explanation for such physical contact which include the nature of the relationship between the child and the offender, the length of the contact, its purposefulness; also, if there was a legitimate non-sexual purpose for the contact. Also relevant is where it takes place and the conduct of the offender before and after such contact. Int his regard, it would be useful to always keep in mind that "sexual intent" is not defined, but fact-dependent-as the explanation to Section 11 specifies."
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38. In this regard, it is essential to keep in mind what the 'Explanation' to Section 11 of the Act of 2012 specifies regarding sexual intent.
39. As already discussed, there was absolutely no justifiable reason for the accused to follow her, insist on her talking, hold her hand, write the mobile number on her hand , not release her hand , which clearly shows that there was a sexual intent. I thus conclude that the physical contact was established by the appellant with a sexual intent. This takes me to the next Section, where the trial Court awards the conviction. The Section is 354 - D of the IPC.
40. Section 354 - D of the IPC speaks about stalking. It applies when any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or monitors the use by a woman of the internet, email or any other form of electronic communication, is said to have committed an offence of stalking.
41. The evidence discussed (supra) will also prove that the appellant was repeatedly contacting the victim to foster personal interaction, and there was a clear indication of disinterest, which the victim showed. The victim, though, had shown her disinterest on many occasions; he had contacted her. Further, the appellant had tried to give his mobile number, but the victim refused to take it, and he then threatened her. The accused forcibly wrote down his mobile number on the hand of the victim. When the accused asked why the victim did not 14 930.Cri.Appeal.401.2021.odt call him, she said she did not have his mobile number and would not call him. The repeated acts of the accused attract the ingredients of the offence of Section 354 - D of the IPC.
42. After appreciation of evidence on record, the trial Court has rightly convicted the appellant for the commission of an offence under Sections 354 - A and 354 - D of the IPC.
43. The appellant is also convicted for the commission of offences under Sections 504 and 506 of the IPC. Section 504 of the IPC defines intentionally insulting with the intent to provoke breach of peace.
44. At this juncture, it is necessary to mention here that nothing has been brought on record that the act done by the appellant was done with the intention or knowledge that provocation would cause any person to break the public peace or to commit any other offence. I thus conclude that the prosecution does not prove the offence under Section 504 of the IPC. Therefore, the appellant is liable to be acquitted for the commission of the offence punishable under Section 504 of the IPC.
45. The appellant is also convicted for the commission of an offence punishable under Section 506 of the IPC, which prescribes punishment for criminal intimidation. Criminal intimidation is defined under Section 503 of the IPC, which speaks about threatening another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is 15 930.Cri.Appeal.401.2021.odt legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
46. The victim in her testimony had categorically stated that the appellant had threatened her that if the phone call were not made, her father would be informed that the victim was with the appellant. The victim had further stated in her deposition that the appellant had made a threat. Considering the testimony, I conclude that the prosecution proved the offence under Section 504 of the IPC, and the trial Court rightly awarded the conviction.
47. At this stage, it is pertinent to mention here that though the accused was charged for the commission of offences punishable under Section 8 of the Act of 2012, he was convicted for the commission of an offence punishable under Section 12 of the Act of 2012. Since the prosecution has not challenged said part of the judgment, it would not be proper to reverse the findings.
48. So far as the applicability of Section 8 is concerned, the trial Court in paragraph no. 21 of the judgment discussed that the intention of the appellant behind holding the hand appeared only to threaten her, to make her call him, and to meet him. Thus, according to the trial Court, the accused's act would constitute an offence punishable under Section 12, not under Section 8, of theAct of 2012.
49. In this regard, it is necessary to discuss the provisions of Sections 8 and 12 of the Act of 2012.
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50. Section 8 prescribed punishment for sexual assault, whereas Section 7 of the Act of 2012 defines sexual assault, which is reproduced as under :
"7. Sexual assault.--Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
51. If the definition of sexual assault is seen, it would reveal that it is not only touching of the vagina, penis, anus or breast, but also doing any other act with sexual intent, would come under the definition of "sexual assault".
52. Thus, it is not only touching the private part or the breast but also any other act with sexual intent that involves physical contact without penetration that is a sexual assault. In this case, "thus any other act with sexual intent which was physical contact without penetration" is the act of holding the child's hand on various occasions. In light of the discussion made (supra), more particularly paragraph no. 76 of the judgment delivered in Attorney General for India (supra), I conclude that, in fact, the offence of sexual assault is also made out. Still, in the absence of a challenge to said finding by the prosecution, no further orders are passed.
53. Coming to Section 12 of the Act 2012, it is stated that it 17 930.Cri.Appeal.401.2021.odt provides punishment for sexual harassment, which is defined under Section 11 of the Act 2012, which reads thus :
"11. Sexual harassment.--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 that 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, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film, 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."
54. In this case, as already stated, the appellant had followed the victim repeatedly with sexual intent and, thereafter, offences under 18 930.Cri.Appeal.401.2021.odt Section 11 of the Act of 2012 were proved.
55. At this stage, learned counsel for the appellant submitted that the charge was framed by the trial Court, under Section 8 of the Act of 2012, conviction was awarded under Section 12 of the Act. He thus submitted that this is incurable defect and, therefore, is liable to be acquitted.
56. In this regard, it is necessary to mention here that the appellant has not brought anything to my notice, by which, it can be said that what prejudice has been caused to the accused by non-framing of the charge. If the contents of charge framed against the accused below exhibit 8 are perused, it would be crystal clear that it was specifically brought to the notice of the accused that he will have to face the allegations that he has committed physical contact and advanced involving unwelcome and explicit sexual overtures to minor victim. He was also made aware that he will have to face a trial on the basis of allegation that he had contacted or attempted to contact child to foster personal interaction despite a clear indication of disinterest by the said victim.
56. In the present case, the accused with a sexual intent has repeatedly or constantly followed a child directly and, therefore, he has been rightly convicted for commission of offence punishable under Section 12 of the Act of 2012.
57. Suffice it to say that erroneous or irregular or even absence of specific charge shall not render the conviction recorded by the Court 19 930.Cri.Appeal.401.2021.odt invalid unless the appellate Court comes to conclusion that failure of justice has in fact been occasioned thereby.
58. Since nothing has been shown that failure of justice has occurred, I come to conclusion that conviction was rightly awarded to the appellant. In that view of the matter following order is passed.
ORDER
i. Criminal Appeal is dimissed.
ii. Appellant's bail bond stands cancelled.
( RAJNISH R. VYAS, J. )
SPC