Sudhakar vs State of Maharashtra - Criminal Appeal

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Sudhakar @ Shankar @ Chandrya Jangluji ... vs State Of Mah. Thr. Pso Railway Ps Akola ... on 25 March, 2026

2026:BHC-NAG:4734

                                                   1            5-apeal 410 of 2024.odt

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR

                         CRIMINAL APPEAL NO.410/2024

          Sudhakar @ Shankar @ Chandrya
          Jangluji Uike, aged about 39 Years,
          Occup. Beggar, R/o Near Mari Mata Temple,
          Ladgad, Post Masod,Tah.Arvi,
          District Wardha..                      Appellant
                 - Versus -
          State of Maharashtra,
          Police Station Officer,
          Railway Police Station, Akola.
          District Akola.                                 Respondent

                                 -----------------
          Mr. Amit M. Balpande, Advocate (appointed) for the
          Appellant.
          Mr.U.R.Phasate, A.P.P. for Respondent No.1/State.

                                ----------------
          CORAM: NEERAJ P. DHOTE, J.
          DATE OF RESERVING THE JUDGMENT:   12.02.2026.
          DATE OF PRONOUNCING THE JUDGMENT: 25.03.2026.

           JUDGMENT: -

1) This is an Appeal under Section 415(2) of the Bharatiya

           Nagrik Suraksha Sanhita (for short BNSS),2023 against the

           judgment and order dated 30.11.2023 passed by the learned Extra
                                  2                  5-apeal 410 of 2024.odt

Joint Additional Sessions Judge, Akola in Special POCSO case

No.112 of 2020 convicting and sentencing the Appellant as follows.

(i) Accused Sudhakar @ Shankar @ Chandrya Jagluji
Uike aged about 35 years Occ: Begger R/o near Marimata
temple Ladgad Post Masod Tq. Arvi Dist. Wardha is
convicted under Section 235 (2) of the Criminal Procedure
Code for the offence punishable under sections 376(2)(n), 376(3), 363, 363-A of the Indian Penal Code and Section 5
(1) (j)(ii) punishable under Section 6 of the POCSO Act.

(ii) No separate sentence is awarded for the offence
punishable under Section 376 (2)(n) and 376 (3) of the
Indian Penal Code in view of Section 42 of the POCSO Act,
as greater punishment is provided under Section 6 of the
POCSO Act.

(iii) The accused is convicted for an offence punishable
under Section 6 of the POCSO Act and sentence to suffer
R.I. for 20 (Twenty) years and to pay fine of Rs.10,000/-
(Rs.Ten thousand) in default of payment of fine to suffer
further R.1. for one year.

(iv) The accused is convicted for an offence punishable
under Section 363 of the Indian Penal Code which is
separate and distinct offence and sentence to suffer R.I. for
7 (Seven) years and to pay fine of Rs. 10,000/- (Rs. Ten
thousand) in default of payment of fine to suffer further
R.L. for six months.

(v) The accused is convicted for an offence punishable
under Section 363-A of the Indian Penal Code which is
separate and distinct offence and sentence to suffer R.I. for
7 (Seven) years and to pay fine of Rs. 10,000/- (Rs. Ten
thousand) in default of payment of fine to suffer further
R.I. for six months.

(vi) The accused is acquitted under Section 235 (1) of the
Cr.P.C. of the offence punishable under Section 224 and 376 (m) of the Indian Penal Code.

3 5-apeal 410 of 2024.odt

(vii) The substantive sentence shall run concurrently as per Section 31 of the Code of Criminal Procedure.

(viii) The accused is entitled for set off period he
undergone in jail as per Section 428 of the Code of
Criminal Procedure.

(ix) On realization of the amount of fine it shall be paid to
the baby of the accused and the victim under Section 357
(1)(b) of the Code of Criminal Procedure. On payment of
this amount to the baby of the Victim, it shall be kept in
fixed deposit with any Nationalized Bank by her Care-taker
till she attend majority.

(x) Copy of Judgment be given to the accused free of costs
under Section 354 (4) of the Code of Criminal Procedure.

(xi) The clothes which were seized from the accused be
returned to him after the appeal period or the decision of
the appeal if preferred by either side.

(xii) Dictated and pronounced in open Court.

2) The prosecution's case, as revealed from the Police report, is

as under:-

a) On 22.08.2020 the coordinator with Railway Child Line,

Akola assigned with the work of providing necessary help to the

children found wandering within the railway premises, noticed the

Victim along with the Appellant on platform No.6 of Railway

Station, Akola. The Coordinator was accompanied by the other

Colleagues. On enquiry with them, the coordinator and his team got

suspicious and they both were brought to the Police Station. The
4 5-apeal 410 of 2024.odt

Victim was referred for medical examination to the Government

Hospital and thereafter, was taken to the Child Welfare Committee

(CWC). Again as per advice of the CWC, the Victim was taken for

medical examination and she was found pregnant for Eighteen (18)

to Nineteen (19) weeks. The ossification test of the prosecutrix was

conducted and she was found to be aged 15 years (+ -) six months.

The statement of the Victim was recorded by the Police and by the

CWC. The Report was lodged by the Policeman and Crime bearing

No.211 of 2020 came to be registered for the offence punishable

under Section 376(2)(i)(m)(n) 224 of Indian Penal Code (for short IPC) and for the offence punishable under Section 6 r/w [Section 5(j)

(2)](https://indiankanoon.org/doc/91936657/) and (l) of the [Protection of Children From Sexual Offences Act,

2012](https://indiankanoon.org/doc/103108231/) (POCSO) against the Appellant. The Appellant came to be

arrested. The Appellant was referred for medical examination. The

blood samples of the Victim and of the Appellant came to be drawn

and sent to the forensic science laboratory. Statement of witnesses

were recorded. Victim was sent to the Child Care Center. The spot

panchnama was conducted. The clothes of the Victim and of the

Appellant came to be seized. The Test Identification Parade (T.I.P.)

was conducted. As it was learnt that, the Victim was with her

relatives at Kachewani, Tq.Tiroda, District Gondia. Search was
5 5-apeal 410 of 2024.odt

done. However, the Victim was not traced and it was learnt that, the

Victim delivered the baby girl and one person adopted the child.

The samples of the child were drawn and sent to the laboratory. The

seized articles were sent to the laboratory for examination. The

DNA report disclosed that, the Appellant and the Victim were

biological parents of the baby. The necessary documents were

collected. On completion of the investigation, the Charge-sheet came

to be filed against the Appellant.

b) The learned Trial Court framed the Charge against the

Appellant for the offence punisahble under Sections 363, 363-A, 376(2)(m)(n), 376(3) and 224 of the Indian Penal Code and for the

offence punishable section 6 of the POCSO Act below Exh.101. The

Appellant pleaded not guilty and claimed to be tried. To prove the

Charge, the prosecution examined in all nineteen (19) witnesses and

brought on record, the relevant documents. After the prosecution

filed the evidence closer pursis, the statement of the Appellant came

to be recorded under Section 313(1)(b) of the Cr.P.C.. The Appellant

stated that, he was falsely implicated by his family members due to

the land dispute. Appreciating the evidence on record, the learned

trial court convicted and sentenced the Appellant as above.

6 5-apeal 410 of 2024.odt

3) Heard the learned Advocate for the Appellant and the

learned APP for the State. Scrutinised the evidence on record.

a) It is submitted by the learned Advocate for the Appellant

that, the Victim was not examined by the prosecution. There was no

document to prove the date of birth and age of the Victim which was

not conclusive. The Ossification Test was conducted to prove the

age of the Victim. The conviction was recorded by the learned Trial

Court only on the basis of the DNA report. Since, the Charge was not

established the Appellant be acquitted. In support of his

submissions, he relied on the follwing decisions:-

(i) Kailas Hiraman Salve Vs. The State of Maharashtra and anr.
reported in 2023 ALL MR (Cri.)2798

(ii) Mekala Shiva Vs. The State of Telangana reported in 2022 ALL
MR (Cri.) Journal 121.

(iii) Mohan Ambadas Meshram Vs. State of Maharashtra reported
in 2018 ALL MR(cri.) 4362.

b) It is submitted by the learned APP that, the Victim was from

the lower strata of life. As per the ossification test, the Victim was

found to be Fifteen (15) years old. Two (2) years margin on the

either side would show that, she was below Eighteen (18) years of

age. There was no date of incident. Therefore, five (5) months prior

period from the FIR needs to be taken into consideration. The Victim
7 5-apeal 410 of 2024.odt

and the Appellant were found together. The evidence on record

indicate repeated sexual performance by the Appellant on the

Victim. There is no defence of consensual relations. As the Appellant

absconded after his arrest, the Charge for abscondance was framed.

The samples were kept in the ice-packs and there is no suggestion

that, the samples got contaminated. There were no loopholes in

handling the samples. The Appellant was found to be the biological

father of the child born to the Victim. The presumption can be

drawn that, the Appellant kidnapped the Victim. The circumstantial

evidence proved the Charge. The Appellant was not entitled for

benefit of doubt and the Appeal be dismissed. In support of his

submissions, he relied on the judgment in Nandkumar Sitraram

Jadhv Vs.The state of Maharashtra reported in 2014 ALL

MR(Cri.)697.

4) As one of the Charge against the Appellant is under POCSO,

the prosecution is under obligation to prove that, the Victim was the

child as defined under Section 2(d) of the POCSO i.e. below 18

years of age. The evidence of PW-18 Kiran Dnyandeo Salve, who was

the in-Charge Officer of the Railway Police Station, Akola who

invested the crime shows that, he made enquiry with the

grandmother of the Victim for the document in respect of age,
8 5-apeal 410 of 2024.odt

however, no document was found with her in respect of the age of

the Victim.

5) The prosecution examined PW-9 Dr. Pradnya Gajanan Atram

to prove the age of Victim on the basis of Ossification test. The

evidence of this witness shows that, she was attached to the

Government Medical College, Akola as the Associate Professor on

24.08.2020. Her evidence shows that, on the basis of the requisition

received from the concerned Police Station for age determination of

the Victim, the Victim was referred to the Dental department,

Radiology department, Forensic department and Gynecology

department on 24.08.2020. All the Heads of the said department

examined the Victim and gave their remarks on the case papers. She

deposed that, at the relevant time, the Victim was found Fifteen (15)

years of age (+ -) Six(6) months. The Exh.44, age certificate was

issued under her signature and signature of the concerned head of

the departments. The suggestion is given in the cross examination

that, she could not ascertain the correct age of the Victim.

Undisputedly, the doctors, who conducted the Radiological, Dental

and Forensic tests are not examined by the prosecution. The

evidence of this witness clearly shows that, after examining the

Victim as per routine, she referred the Victim to the said various
9 5-apeal 410 of 2024.odt

departments. Though, this witness is one of the signatory to the said

Exh.44 certificate, her evidence will not be sufficient to accept the

evidence in respect of determination of age of the Victim. The

Ossification test report, radiology test report and dental X-ray report

are not brought on record and exhibited to give an opportunity to

the defence to cross-examine the experts regarding the method used

by them while performing such examination. Thus, foundational

facts regarding the determination of the age of the Victim are not led

by the prosecution. Thus, this evidence fall short of proving the age

of the Victim. No other evidence is brought on record to prove the

age of the Victim. There is no need to discuss the judgment cited by

the learned Advocate for the Appellant on the point of Ossification

test evidence. Prosecution utterly failed to prove that, the Victim was

the child.

6) The other evidence on which reliance is placed by the

prosecution is the Forensic evidence in the nature of DNA report

showing the Appellant and the Victim as the biological parents of the

baby of the Victim. The said report is brought on record in the

evidence of PW-19 Sidharth Ransing More, who was the Assistant

Chemical Analyser in the Regional Forensic Laboratory at Amravati.

His evidence shows that, on receipt of the samples of the Victim, the
10 5-apeal 410 of 2024.odt

Appellant and the new born baby, from his department, he

performed the analysis and opined about the parentage of the new

born girl to the Victim. It has come in his cross examination that, as

per the norms, the blood samples must be forwarded by the Police

Station to the laboratory within 24 hours and the same should be

forwarded in the ice box.

7) As regards the collection of the blood and forensic samples

is concerned, according to PW-19 the blood samples of the new born

baby of the Victim was collected by the Medical Officer Dr.Mahesh

Jaiswal. Said Mahesh Jaiswal is not examined by the prosecution. It

has come in the cross-examination of this forensic expert that, so far

the collection of the blood sample of the Victim and the accused,

their identification form received by him shows the signature and

seal of the Medical Officer of GMC, Akola but their names were not

written. The evidence of PW-1 though shows that, the Medical

Officer collected the blood samples of the Appellant in his presence

and kept and sealed it in the DNA kit in the ice pack and it was

handed over to him and he handed over the same to the

Investigating Officer, his evidence nowhere shows the dates of the

same i.e. as to when the samples were collected and when the same

was handed over by him to the Investigating Officer. The PW-5
11 5-apeal 410 of 2024.odt

Woman Police Naik of the Railway Police Station, Akola, though

deposed that, on 02.09.2020 blood samples of prosecutrix and the

Appellant were collected for DNA test, her evidence nowhere shows

as to who collected the same and handed over to whom. PW-7 Dr.

Prachi S.Koranne, the Medical Officer, though deposed that, the

Forensic samples of the prosecutirx were collected, her evidence

nowhere shows as to who was the concerned police to whom the

samples were handed over. Evidence of PW-11, the Police Constable

of the Railway Police Station, Akola shows that, on 02.09.2020, he

carried the samples of the Victim and of the Appellant to the

laboratory and on 04.02.2021 deposited the samples (appears to be

of the new born baby) to the laboratory. It has come in his cross

examination that, the DNA samples are to be deposited in the

laboratory that very day and he admitted that, he had not deposited

the DNA samples that, very day. The evidence of PW-12 Police

Constable of the Railway Police Station, Akola shows that, on

04.09.2020, he carried the clinical samples of the Victim and the

Appellant to the laboratory.

8) Useful reference can be made on the judgments in the

case of Nivrutti S/o Nagorao Hange V/s. The State of Maharashtra

and another 2024 ALL MR (Cri.) 3445 and Chandu @
12 5-apeal 410 of 2024.odt

Chandrashekhar Keshaorao Chambhare V/s. State of Maharashtra

2025 DGLS (Bom.) 590 in respect of handling the DNA samples.

The above evidence on record do not clearly establish the chain of

handling the DNA samples as required by the medical protocol. The

evidence in respect of the samples do not rule out the possibility of

the samples getting contaminated. Therefore, in the light of the

principle laid down in the above referred decisions in respect of the

DNA samples, the Forensic evidence showing the Appellant as the

biological father of the new born baby of the Victim cannot be relied.

Further, it has come in the cross examination of PW-17 Sunil Ashok

Bhise that, the Police Officer, who conducted some part of the

investigation, that, he could not get any document showing that, the

child in the custody of the person Jamil Anwar Sheikh was the child

of the Victim.

9) The other evidence brought on record by the prosecution is

that, of the brother-in-law of the Appellant, the Police Patil of the

village and one witness who were examined as PW-13 and 14 and

15 to show the past conduct of the Appellant. Even accepting the

said evidence as it is, the prosecution cannot escape from the duty to

establish the Charge with cogent evidence. The evidence of PW-7

Dr. Prachi S.Koranne shows that, while examining the Victim, the
13 5-apeal 410 of 2024.odt

history given was that, the Appellant and Victim had performed the

marriage and had sexual intercourse. Her evidence shows that, there

were no injuries on the Victim. In Nandkumar Sitraram Jadhv

(supra), it is observed that, non examination of the Victim due to

non availability is not fatal to the prosecution and the conviction can

be based on the other material on record. There cannot be any

dispute on the said legal position. However, in the case at hand, the

evidence available on record do not prove the Charge against the

Appellant. The prosecution failed to establish that, the Victim was

the child. Further, the prosecution failed to establish that, the Victim

was kidnapped and raped by the Appellant. Thus, it is not possible to

maintain the conviction recorded by the learned trial Court against

the Appellant. The Appellant is entitled for acquittal. Hence, the

following order.

ORDER

i) The Criminal Appeal is allowed
ii) The conviction and sentence recorded by the learned Trial Court against the Appellant in Special POCSO Case No.112 of
2020 is quashed and set aside.

iii) The Appellant is acquitted for the offence punishable under Sections 376(2)(n), 376(3), 363, 363-A of the IPC and for
the offence punishable under Section 6 of the POCSO.

14 5-apeal 410 of 2024.odt

iv) The Appellant is behind bars, he be released from the jail, if
not required in any other offence.

v) The fine amount if paid, be refunded to the Appellant.

vi) The Record and Proceedings be sent back to the learned Trial
Court.

vii) Fees of the learned appointed Advocate for Appellant is
quantified at Rs.10,000/- (rupees ten thousand only). The
same be paid accordingly by the High Court Legal Services
Authority.

(NEERAJ P. DHOTE, J.)

                             Kavita

Signed by: Kavita P Tayade
Designation: PS To Honourable Judge
Date: 25/03/2026 11:01:35