Bombay High Court
Balasaheb Sopan Dorge vs The State Of Maharashtra Thr Government ... on 18 December, 2025
2025:BHC-AS:56830
Shubhada S Kadam 5-APEAL-227-2021 (CR).reasons.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 227 of 2021
Vinod Kumar Laltaprasad Jaiswal
Aged about 29 years, Occupation : Service,
Residing at Room No.8, Sai Baba Nagar, Appellant
Kandivali (West), Mumbai - 400 067 ... (Org. Accused)
versus
1. The State of Maharashtra
at the instance of Worli Police Station.
....
2. XXX Respondent/s
Ms. Vilasini B. Balsubramanian,Appointed Advocate for the Appellant.
Mr. Mayur S. Sonavane, APP for Respondent No.1-State.
Ms. Grishma Lad, Appointed Advocate for Respondent No.2.
CORAM : R. M. JOSHI, J.
DATE : 18th DECEMBER, 2025.
Oral Judgment:
1. This appeal takes exception to the judgment and order dated
11th January 2021 passed in POCSO Special Case No.539 of 2016,
whereby the accused came to be convicted for the offences punishable
under Sections 6 and 8 of Protection of Children from Sexual Offences
Act, 2012 (for short "POCSO Act") and Sections 363 and 376(1) of the
Indian Penal Code 1860 (for short "IPC"). He is sentenced to suffer 10
SHUBHADA
SHANKAR (Ten) years Rigorous Imprisonment with fine of Rs.15,000/-, in default, 3
KADAM
Digitally signed by
SHUBHADA
(Three) months Rigorous Imprisonment and 3 (three) years Rigorous
SHANKAR KADAM
Date: 2025.12.23
10:30:56 +0530
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Imprisonment with fine of Rs.5,000/-, in default, 2 (Two) months Rigorous
Imprisonment for offences punishable under Sections 6 and 8 of the
POCSO Act respectively.
2. It is the case of the prosecution that the victim was aged about
16 years at the time of occurrence of the incident. On 23rd September
2016 as her mother scolded her, she left house and did not return. The
search taken for the victim was futile. Her mobile phone was also found
switched off. A report, therefore, came to be lodged by the father of the
victim on 24th September 2016 on the basis of which offence came to be
registered under Section 363 of the IPC. After about a month, victim was
found and brought back. She disclosed of having an affair with accused
who is her maternal uncle. On the basis of the statement of victim and
medical examination conducted, offences under Section 376 and POCSO
Act came to be added. The investigation in the said Crime was done. On
conclusion of investigation, charge sheet is filed before the competent
Court.
3. The charge was framed against accused vide Exhibit-3. He
abjured the charge. The prosecution examined the following four
witnesses:
PW1-Informant (Exhibit-8)
PW2-Victim (Exhibit-12)
PW3-Dr. Swapnil P. Akhade, (Exhibit-16)
PW4-PSI Virendra G. Ghosalkar (Exhibit-18)
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4. In addition to the oral evidence, the documentary evidence was
also relied upon which included birth certificate of victim(Exhibit-10), FIR,
spot panchanama, medical examination report of victim, etc.. Incriminating
evidence was put to the accused in the statement under Section 313 of
the Cr.P.C..He did not lead any evidence. Learned Trial Court found the
evidence of the prosecution sufficient to bring home guilt of the accused
beyond reasonable doubt, hence, recorded conviction against him by the
impugned judgment and order.
5. Learned counsel for the appellant/accused submits that here in
this case, the prosecution has failed to bring on record conclusive
evidence indicating the age of the victim to be below 18 years and she
being child. It is her contention that the investigating officer in his cross-
examination was not able to answer the question as to from which source
he obtained the birth certificate of the victim. It is submitted that having
regard to the said evidence, it cannot be held that the prosecution has
proved the age of the victim to be below 18 years. It is submitted that
once the age of the victim is not proved, in view of the fact that this is a
case of consensual sexual relationship between the accused and the
victim, he deserves acquittal. By relying upon the judgment of Coordinate
Bench of this Court in case of Pramod Dattatraya Jadhav versus The
State of Maharashtra 2019 SCC OnLine Bom 145, it is submitted that
for want of details with regard to the parents of the victim being proved
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before the Trial Court, it cannot be held that the victim is minor by placing
reliance even on birth certificate. She also placed reliance on the
judgment in case of Ashik Ramjaili Ansari versus State of
Maharashtra and anr. in 2023 SCC OnLine Bom 1390 to argue that in
case of consensual sexual relationship between the accused and victim,
who is above 16 years of age but below 18 years of age, the offence
cannot be said to have been proved. Learned counsel for the appellant
submits that though the offence punishable under Section 363 of the IPC
has been charged against the accused, there is absolutely no evidence
on record to hold that the accused enticed the victim and took her away
from the lawful custody of her parents.
6. Learned APP and learned counsel for respondent No.2
supported the impugned judgment and order. It is their contention that the
prosecution has proved the age of the victim on the basis of birth
certificate, which is not denied by the defense by conducting cross-
examination of the victim as well as her father. It is submitted that once it
is held that the victim was minor, consent if any of the victim for sexual
relations is inconsequential. Thus, it is their contention that in any event,
the offence of statutory rape has been proved against the accused.
Similarly, it is argued that the victim was minor and it is the accused who
took her away from the custody of her parents and she was brought back
from his custody which is sufficient to prove the offence of kidnapping.
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7. In order to prove the offence of kidnapping punishable under
Section 363 of IPC, so also offences under the POCSO Act, the burden
would be on the prosecution to prove that the victim is a child within the
meaning of Section 2(d) of the POCSO Act. The evidence of PW1,
informant-father of victim, shows that he placed on record original birth
certificate of victim indicating her date of birth as 8 th November 1999.
Learned Trial Court Court verified the original document and compared
the same with the photo-copy and thereafter marked the photo-copy as
Exhibit 10. In the cross-examination, no dispute was made by the defense
with regard to the correctness of the birth certificate or that the birth
certificate does not belong to the victim. Similarly, the victim in her
evidence has specifically stated about her date of birth being 8 th
November 1999. She is also not cross-examined in order to challenge
the evidence of victim on oath. Thus, there is conclusive evidence to
indicate that the victim was below the age of 18 years and hence a child
within the meaning of Section 2(d) of the POCSO Act. Merely because the
investigating officer is unable to state the source of birth certificate, the
unchallenged evidence of informant as well as victim cannot be discarded.
It is, therefore, held that prosecution has succeeded in proving victim to
be child and hence provisions of the POCSO Act are squarely applicable
to the present case.
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8. In so far the offence charged of kidnapping against the
accused is concerned, the testimony of the victim as well as her father
indicate that she on her own left the house after her mother scolded her. It
is stated that after one month, she was found at Pune. Thus there is no
evidence to indicate that the accused has enticed the girl and taken her
away from the custody of her parents. Thus, the essential ingredients to
constitute an offence of kidnapping are not proved. It is, therefore, held
that the prosecution has failed to prove the said charge.
9. As far as the offence under Section 376 of the IPC and Section
6 of the POCSO is concerned, the victim in her testimony claims that she
had sexual relations with the accused but the same were consensual in
nature. The said fact of the consensual sexual relationship between
accused and victim is not denied by the accused. There is further medical
evidence to indicate that the victim was subjected to the penetrative
sexual intercourse. Thus, there is a conclusive evidence on record to hold
that the accused had subjected the victim of sexual intercourse. Now the
question arises as to whether the consent of the victim for such
relationship is relevant. Needless to say that the definition of rape under
IPC as it stood then indicates that the consent of a woman below age of
16 years at the relevant time was treated as no valid consent. However,
provisions of POCSO Act provides that sexual intercourse with a child
within the meaning of Section 2(d) of the said Act i.e. a person below age
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of 18 years is an offence and the consent of a child for sexual
relationship, is no consent in the eyes of law and hence, the theory of
consensual physical relationship, sought to be made out deserves to be
ignored.
10. Learned counsel for the appellant has placed reliance on the
judgment of the Coordinate Bench of this Court in the case of Ashik
Ramjaili Ansari (Supra), wherein following observations amongst other
are made :
"75 . With the evidence on record, the learned Special Judge has rightly
derived a conclusion that there is no evidence led by the prosecution,
establishing that the accused had taken away or enticed her and,
therefore, an offence under Section 363 of IPC is not made out.
However, with the evidence coming on record to the effect that she
continued to stay with the accused and physical relationship was
established between them, considering that she was aged 17 years
and 5-6 months, a conclusion was derived that the act of the accused
amounted to an offence of rape as, she being minor, sexual
relationship maintained with her, either "with or without consent, would
amount to rape. The learned Special Judge, though derived a
conclusion that it is a case of consensual sex, found the consent
immaterial, since the prosecutrix was minor. Left with no option to
come out of the rigors of Section 375, since the consent of the minor
girl in cases of sexual intercourse is immaterial, the learned Special
Judge recorded a finding of guilt against the accused and found him
guilty of committing the offence under Section 376 of IPC as well as
Sections 4 and 6 of the POCSO Act.
76. This is a peculiar case, where the evidence on record has clearly made
out a case for consensual sex, as no where in the examination-in-chief
or her cross-examination, the prosecutrix has alleged that sexual
intercourse was forcible and without her consent and throughout her
deposition, she is consistent on the said stand though state that she
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was informed that the accused was already married to some other
woman.
77. In the wake of the clear case of consensual sex, emerging from the
prosecution case, between a girl aged 17 years and 5 months and a
man aged 25, merely because the statute provide punishment for an
act of sexual Indulgence, as the girl has not attained the age of
maturity l.e. 18, when it can be specifically inferred from her conduct
that she was capable of understanding the consequences of her act, I
am of the opinion that the learned Special Judge has erred in
convicting the appellant for committing the offence of rape under
Section 376 of IPC as well as the offences under Sections 4 and 6 of
the POCSO Act and awarded him the sentence in the impugned
judgment."
With utmost respect to the judgment cited supra, in considered
view of this Court, the consent which is not recognized by the statute
cannot be accepted as a valid consent for offences under POCSO Act.
Unlike, IPC, the consent of victim is not relevant under the said Special
Act. Perusal of the provisions of the Act do not indicate that legislature
ever intended to consider the consent of a child as a decisive factor for
proof of offence. Thus, once it is held that the victim of sexual assault is a
child, the consent or no consent of such child is inconsequential. There is
no relevance of any consent of the child, in case of the sexual intercourse
being done with her. Furthermore, the challenge to amendment to the
provision of Section 375 raising the age for recording valid consent of a
woman from 16 years to 18 years, has not been held unconstitutional till
this date by any Court. In view of this, it would not be open for this Court
to hold that since the victim girl was of age of understanding to record
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consent for sexual relationship, and to acquit the accused. It would
amount to rewriting of the statute which is wholly impermissible. In view
of above, this Court finds no reason to cause interference in the judgment
of conviction recorded against the appellant/accused for offences
punishable under Section 376 of the IPC and Section 6 of the POCSO
Act.
11. Learned counsel for the appellant submits that having regard to
the facts of the case, the appellant at the most may be sentenced to suffer
minimum sentence prescribed by law. It is submitted that at the relevant
time, the minimum sentence for the said offence was seven years.
12. Learned counsel for respondent No.2 as well as learned APP
though opposed for reduction of the sentence, however, they do not
dispute the fact that at the relevant time, minimum sentence was of seven
years.
13. Even if this Court accepts the fact that it is a case of a
love affair, it is not open for the Court to impose sentence less than the
minimum sentence prescribed by the statute. Consequently, the Court has
no other option but to sentence the accused to suffer 7 years of
imprisonment for the offence punishable under Section 376 of the IPC and
6 of the POCSO Act with fine as imposed by the Trial Court.
13. In view of above discussion, the following order :
ORDER
1. Appeal stands partly allowed.
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2. Accused stands acquitted for the offence punishable under Section 363 of the IPC.
3. Accused is sentenced to suffer 7 years of imprisonment for the offences punishable under Section 376 of the IPC and 6 of the POCSO Act with fine as imposed by the Trial Court.
The appeal stands disposed in above terms.
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