Bombay High Court
Yogesh S/O Brijkishor Agashe vs State Of Mha. Thr. Pso Ps Bhandara Tah. ... on 28 January, 2026
2026:BHC-NAG:1319
1 CRI.APEAL 132-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 132 OF 2023
Yogesh s/o. Brijkishor Agashe
Aged about 21 years, Occ. Education,
R/o. Ambedkar Ward, Mujbi,
Tah. and Dist. Bhandara. ... Appellant
.. Versus ..
1) State of Maharashtra,
Through Police Station Officer,
Police Station Bhandara,
Tah. and Dist. Bhandara.
2) XYZ,
Through Police Station Officer, Bhandara
In Crime No. 308/2019. ...Respondents
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Shri M.V.Rai, Advocate for appellant.
Shri U.R.Phasate, APP for respondent no. 1/State.
Shri Anirudha Ananthakrushnan, Advocate h/f. Ms. Falguni
Badani, Advocate (appointed) for respondent no. 2.
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CORAM : NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT : 14/01/2026
DATE OF PRONOUNCING THE JUDGMENT: 28/01/2026
JUDGMENT
This Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') is directed against 2 CRI.APEAL 132-2023.odt the judgment and order dated 01/10/2022 passed by the learned Additional Sessions Judge (Special Judge, POCSO), Bhandara in Special Case (Child Protection) No. 33 of 2019 convicting and sentencing the Appellant as follows:-
"1) The accused Yogesh Brijkishor Agashe, aged about 21 years, Occ- Labourer, R/o. Ambedkar Ward, Mujabi, Tah. Distt. Bhandara., is hereby convicted under Section 235(2) of Code of Criminal Procedure for the offences punishable under Sections 341, 354(D), 376(2)(n), 376(2)(i) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and also under Section 3(1)(w)(i)(ii) & 3(2) (va) of the Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act and under Section 67 of Information Technology Act.
2) The accused is sentenced to undergo simple imprisonment for one month for an offence punishable under Section 341 of the Indian Penal Code.
3) The accused is sentenced to undergo rigorous imprisonment for three years for an offence punishable under Section 354(D) of the Indian Penal Code and to pay fine of Rs. 1,000/-, in default of payment of fine further S.I. for one month.
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4) The accused is sentenced to undergo rigorous imprisonment for ten years for an offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and to pay fine of Rs. 3,000/-, in default of payment of fine further S.I. for three months.
5) The accused is sentenced to undergo rigorous imprisonment for one year for an offence punishable under Section 3(1)(w)(i)(ii) of the Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act and to pay fine of Rs. 1,000/-, in default of payment of fine further S.I. for one month.
6) The accused is sentenced to undergo rigorous imprisonment for one year for an offence punishable under Section 3(2) (v-a) of the Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act and to pay fine of Rs. 1,000/-, in default of payment of fine further S.I. for one month.
7) The accused is sentenced to undergo rigorous imprisonment for one year for an offence punishable under Section 67 of Information Technology Act and to pay fine of Rs. 1,000/-, in default of payment of fine further S.I. for one month.
8) As per Section 42 of the POCSO Act no separate punishment is given under Section 376(2)
(n), 376(2)(i) of the I.P.C.
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9) The period of detention undergone by the accused during investigation and trial shall be set off against the term imprisonment imposed on him.
10) All the punishments shall run concurrently.
11) ....
12) ....
13) ....
14) ....
15) ...."
2. The prosecution's case as revealed from the police report is as under:-
2.1 The informant (victim) was residing with her parents and sister at the address given in the report. She was studying in 10th standard. She was having the Facebook account and Smart Phone. In the year 2018, the Appellant sent a friend request to her on her Facebook account. The victim accepted the same. The victim and the Appellant started talking to each other every day.
The Appellant expressed his love towards her. She did not respond. They continued their conversion as the friends. The Appellant expressed desire to meet her. Accordingly, they met at one place. Thereafter, the Appellant dropped her to her house on the two wheeler. One day, after the bath, the victim clicked her 5 CRI.APEAL 132-2023.odt selfie while she was wearing slip and wrapped the towel around her. She mistakenly forwarded the said click to the Appellant. Their conversations continued. The Appellant texted a message in connection with sex. The victim told him that, she will block his number, if he texted such things. Thereafter, the friendship continued. The Appellant used to go to her school and near her house. The Appellant created one fake social media account and kept the photo of the victim as the display, which was mistakenly sent by victim to him. The Appellant told the victim to meet him or else he will make the said photo viral. Due to the said threat, the victim went to the house of the Appellant. At that time, the Appellant was alone in his house. The Appellant committed sexual intercourse with her. The Appellant told her that, he will not trouble her anymore. Thereafter, the victim left the house. The Appellant closed the said fake social media account. The Appellant created another fake social media account by name 'Angel' and started threatening the victim. Due to the threat, the victim went to the Appellant's house 4 to 5 times where the Appellant committed sexual intercourse with her. 2.2 On 20/04/2019, the Appellant sent messages to the victim to meet. The victim told him not to trouble her else she 6 CRI.APEAL 132-2023.odt will inform her parents. The Appellant threatened her. Eventually, the victim told her father about all the aforesaid incidences. The victim's father informed the same to the witness Akash Borkar, who informed the Child Welfare Committee's member. At the instance of the member of the Child Welfare Committee, the victim's father lodged the report with the Bhandara Police Station against the Appellant, though the victim was not willing to lodge the report. As the Appellant continued troubling the victim, the First Information Report (F.I.R.) was lodged by the victim against the Appellant on 25/04/2019 with the said Police Station and crime bearing No. 0308/2019 came to be registered against the Appellant for the offences punishable under Sections 341, 354-D, 376(2)(n), 376(3) of the Indian Penal Code, 1860 (for short, 'IPC'), for the offences punishable under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'), for the offences Punishable Under Sections 3(2), 3(2)(v) and 3(1)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'SC & ST Act') and for the offence punishable under Sections 66 and 66(E) of the Information Technology Act (for short, 'I.T. Act').
7 CRI.APEAL 132-2023.odt 2.3 During investigation, the victim was sent for medical examination, the spot panchanama was drawn, the Appellant came to be arrested and sent for medical examination, the mobile phone of the victim and that of the Appellant came to be seized, the conversion on the Facebook account and WhatsApp were retrieved, the birth certificate of the victim and medical paper came to be collected and the statement of the witnesses were recorded. On completion of investigation, the Appellant came to be charge-sheeted.
2.4 On committal, the learned Trial Court framed the Charge against the Appellant vide Exh.17 for the offences punishable under Sections 341, 354D, 376(2)(n), 376(2)(i) of IPC, for the offence punishable under Section 6 of the POCSO Act, for the offences punishable under Sections 3(1)(w)(i)(ii) and Sections 3(2)(va) of the SC & ST Act, and for the offences punishable under Sections 66A and 67 of the I.T. Act. The Appellant pleaded not-guilty and came to be tried. To prove the charge, the prosecution examined in all following eight (8) witnesses:-
i) The Victim as PW-1,
ii) Ms. Shubhangi Vilas Kularkar, the panch 8 CRI.APEAL 132-2023.odt witness for the spot panchnama and samples of the victim, as P.W.-2
iii) The father of the victim, as P.W.-3
iv) Dr. Nisha Chandrakant Bhawasar who examined the victim, as P.W.-4.
v) Payal Ujjwal Satdeve, the panch witness for seizure of phone and prints of conversation from the Facebook Account examined, as P.W.-5
vi) Ms. Rina Yadorao Janbandhu who investigated the crime, as P.W. 6.
(vii) Dr. Shabir N. Sheikh, the Medical Officer who examined the Appellant, as P.W. 7.
(viii) Deputy Chief Officer, Bhandara Municipal Council who brought the birth record, as P.W.-8. 2.5 The relevant documents were brought on record in the evidence of the above witnesses.
2.6 After the prosecution filed the evidence closure pursis, the learned Trial Court recorded the statement of the Appellant under Section 313(1)(b) of the Cr.P.C. The Appellant stated that, he was falsely implicated. On appreciation of the evidence available on record, the learned Trial Court passed the impugned judgment and order.
3. Heard the learned Advocate for the Appellant, the 9 CRI.APEAL 132-2023.odt learned APP for the State and learned Advocate for the victim. Scrutinized the evidence available on record.
4. When the charge is for penal Sections of the POCSO Act, it becomes necessary for the prosecution to establish that, the victim was a child as defined under Section 2(d) of the POCSO Act. To prove the age of the victim, the prosecution examined P.W.-8 who was working as the Deputy Chief Officer of Bhandara Municipal Council. In her evidence, she brought on record the certified copy at Exh.84, the Birth Extract of the victim showing the date of birth as 15/03/2004. Though she brought the original record with her, it has come in her cross-examination that, she was not able to tell as to on what basis, the said date of birth was recorded in the register. The other evidence of P.W.-3 father of the victim. Though he deposed that, the date of birth of the victim was 15/03/2004, it has come in his evidence that, he was married in the year 2002 and one year thereafter, a daughter was borne out of the wedlock and the victim was eldest daughter. This shows that, the victim was borne in the year 2003. The suggestion is given that, 15/03/2004 was the wrong date of birth of the victim. Further, the victim's 10 CRI.APEAL 132-2023.odt evidence shows that, she had failed in standard 8th. From this evidence available on record, it is clear that, the evidence in respect of date of birth and age of the victim is not concrete. The evidence on record do not conclusively prove the date of birth of the victim in the light of vital admission by the victim's father in respect of birth of the victim who was the eldest child. The evidence in respect of date of birth and age of the victim is doubtful and cannot be accepted as it is. Therefore, with the evidence available on record, it is clear that, the prosecution failed to establish the date of birth and age of the victim.
5. It is submitted by the learned Advocate for the Appellant that, the evidence of the victim clearly shows that, there was love affair between the victim and the Appellant who was 19 years of age at the relevant time. The evidence in respect of sexual act was not specific. No FIR was lodged by the victim until her father told her to do so. The victim was silent for one year. As the victim's father came to know about the relations between the victim and the Appellant, he made the victim to lodge the false report.
5.1 It is submitted by the learned APP that, the victim 11 CRI.APEAL 132-2023.odt nowhere deposed that, there were love affair between her and the Appellant. Had there been love affair, the victim would not have blocked the Facebook account. The victim's testimony was consistent and there were no omissions. Her testimony do not show that, it was the consensual act. Except suggestions, nothing is brought on record to discard the testimony of the victim. The victim was the witness of sterling quality. He cited the judgment in Ganesan V/s. State Represented by its Inspector of Police (2020) 10 SCC 573 in which the term 'sterling witness' is explained.
5.2 It is submitted by the learned Advocate for the victim that, she adopts the submissions made by the learned APP.
6. The testimony of the victim shows that, the Appellant sent her the friendship request on her social media account. The victim accepted the same. They started talking to each other every day. The victim shared her WhatsApp number with the Appellant. It is strange that, the victim's selfie clicked by her own while she was wearing slip and had wrapped the towel around her, accidentally got sent to the Appellant's social media account. The victim contradicts immediately in the next sentence 12 CRI.APEAL 132-2023.odt that, she was not knowing that, such photograph of her was in the mobile of the Appellant. Her evidence shows that, as the Appellant sent her vulgar message, she objected for the same. However, the victim remained silent and did not complained against the Appellant either to her parents or to the Police. Thereafter, though the Appellant created fake social media account and used to sent message to the victim, she remained silent. The explanation given by the victim is that of threat by the Appellant to make her photo viral. According to the victim, she went to the house of the Appellant at the first instance due to the threat and the Appellant committed sexual intercourse with her. However, it is strange that, due to the said similar threat, the victim went to the house of the Appellant 4 to 5 times where the sexual intercourse took place between her. Had it been so that, due to threat, the victim was sexually exploited after the first sexual intercourse, the victim would had complained about the same to her parents. However, she remained silent and went to the Appellant's house again for 4 to 5 occasions. The silence on the part of the victim speak volumes.
7. The admission is brought in the cross-examination of the victim that, she used to talk with the Appellant as a friend 13 CRI.APEAL 132-2023.odt and she did not lodge the report when her selfie photo was mistakenly sent to the Appellant. The evidence of the victim shows that, she did not disclosed the entire story. Only inference from her testimony can be drawn is that, she did not raise any objection against the Appellant for a period of one year. This indicates that, the victim was the partner to the acts, which had taken place between the Appellant and her. The evidence of the victim shows that, prior to the FIR, she along with her father went to the Police Station though she was not willing to lodge the report. Her testimony shows that, the Police Officer recorded her statement as to why she was not willing to lodge the FIR. Even the evidence of the victim's father shows that, prior to the FIR, one report was lodged against the Appellant with the Police. However, what was the said report is not known. The prosecution did not brought on record the said report. This indicates that, the prosecution withhold the said report. No reason is forthcoming as to why the said report is not brought on record. The prosecution has not brought on record the true version. The victim cannot be termed as the witness of sterling quality.
8. The other evidence brought on record by the 14 CRI.APEAL 132-2023.odt prosecution is in nature of the messages on the social media account between the Appellant and the victim. The transcript of the social media messages is brought on record by the prosecution in the evidence of P.W.-5 Payal U. Satdeve, the panch witness. The evidence of this witness shows that, the said transcript were at Exh. 53 and 54 which were taken out from the social media account by obtaining the password from the Appellant. Admittedly, there is no evidence that, the same were discovered and retrieved at the instance of the Appellant pursuant to Section 27 of the Indian Evidence Act. Perusal of the same shows that, the said messages were of particular dates. Exh. 53 shows that, the messages were of 20/04/2019. The Exh. 54 shows the messages of few dates. According to the victim, the entire episode was of one year. This goes to show that, the prosecution did not brought on record the entire messages between the Appellant and the victim from the social media account. Only the messages or conversion of particular or limited period are placed on record by the prosecution. It is therefore, clear that, the prosecution has not brought on record the entire material in the nature of conversion which took place between the Appellant and the victim.
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9. The other evidence is in the nature of medial evidence which shows that, the Hymen of the victim was old healed and torn which could admit one finger and there were no injuries on her private part and that the Appellant was capable of having sexual intercourse. The said evidence even if accepted as it is, takes the case of the prosecution no further. The other evidence is that of the Investigating Officer who deposed about the investigation done by him.
10. The evaluation of the evidence on record as discussed above shows that, the prosecution's evidence is neither concrete nor reliable. The evidence in respect of the age of the victim is not trustworthy and shaky. The victim's testimony is not free from doubt. The very first version of the victim stated to the Police is not forthcoming and is not brought on record by the prosecution. The testimony of the victim does not inspire confidence. The essential ingredients for the offence for which the Appellant was charged are not proved by the prosecution with reliable and acceptable evidence. The Appellant was aged 19 years at the relevant time. The evidence on record strongly suggests that, the victim and the Appellant were deeply involved 16 CRI.APEAL 132-2023.odt with each other. With the evidence available on record, there is no question of the presumption under Section 29 of the POCSO Act coming in operation. Thus, no explanation from the Appellant will not be incriminating circumstance. On the basis of the evidence available on record, it is not possible to maintain the conviction and sentence awarded by the learned Trial Court. The Appellant is entitled for acquittal. The Appeal succeeds. Hence, the following order:-
ORDER I) The Criminal Appeal is allowed.
II) The conviction and sentence awarded by the learned Additional Sessions Judge (Special Judge, POCSO), Bhandara in Special Case (Child Protection) No. 33 of 2019, dated 01/10/2022, is hereby quashed and set aside.
III) The Appellant is acquitted for the offences punishable under Sections 341, 354(D), 376(2)(n), 376(2)(i) of the I.P.C., for the offence punishable under Section 6 of the POCSO Act, for the offences punishable under Sections 3(1)(w)(i)(ii) & 3(2)(va) of the SC & ST Act, and for the offence punishable under Section 67 of I.T. Act.
17 CRI.APEAL 132-2023.odt IV) The Appellant is in Jail. He be set at liberty, if not required in any other offences.
V) The fine amount, if paid by the Appellant, be refund to him.
VI) The muddemal articles be dealt with as per the operative order of the impugned judgment.
VII) Record and Proceedings be sent back to the learned Trial Court.
VIII) The fees of the learned Advocate appointed to represent the Respondent no. 2 - Victim is quantified at Rs. 10,000/- [Rupees Ten Thousand Only], which shall be paid by the High Court Legal Services Sub-Committee, Nagpur. (IX) The Criminal Appeal stands disposed of accordingly.
[NEERAJ P. DHOTE, J.] B.T.K. Signed by: Mr. B.T. Khapekar Designation: PA To Honourable Judge Date: 28/01/2026 14:55:34