Bombay High Court
Kachru Narhari Sarode vs The State Of Maharashtra And Another on 10 April, 2026
2026:BHC-AUG:15280
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 122 OF 2025
. Kachru Narhari Sarode
Age: 65 years, Occu.: Labour,
R/o.: Galli No.4, Jaibhimnagar,
District Nanded. ....Appellant
Versus
1. The State of Maharashtra
2. XXX ....Respondent
.....
Advocate for Appellant : Mr. Santosh C. Bhosle
APP for Respondent no.1 : Mr.V.M.Jaware
Advocate for Respondent no.2 : Ms.Deepali S. Patil (Appointed)
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 26 MARCH, 2026
PRONOUNCED ON : 10 APRIL, 2026
JUDGMENT :
1. Convict for offence under Sections 375(b) and (d), 376(3),
376AB and 506 of the Indian Penal Code (IPC) as well as under
Sections 3(b) and (d), 4(2), 5(m), 6, 7 and 8 of the Protection of
Children from Sexual Offences Act, 2012 (POCSO Act), hereby takes
exception to judgment and order of conviction rendered by learned
Sessions Judge, Nanded in Special (POCSO) Case No.157 of 2023.
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BRIEF FACTS OF THE CASE
2. In short, prosecution was launched by Shivajinagar Police
Station, Nanded, on accusation that, accused asked the victim, aged
12 years, to go to upper floor room of his house and bring his money
purse and after following her, there, after disrobing the girl, he felt
her body through his hand and inserted his finger in her private part
and thereby committed above offence under aforesaid Sections of the
At trial, prosecution adduced oral evidence of as many as
eleven witnesses and relied on voluminous documentary evidence in
support of age, medical evidence and various panchanamas.
Accused also adduced evidence of one defence witness.
After appreciating evidence adduced by both the sides, learned
trial Court was pleased to hold that prosecution has proved the
charges and passed judgment and sentenced accused as reflected in
the operative part of the order.
Feeling aggrieved by the above, convict has preferred instant
appeal challenging the sustainability of the above judgment.
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SUBMISSIONS
ON BEHALF OF APPELLANT :
3. Learned counsel for accused would point out that, there is
false implication. That, infact accused and victim are relatives. That,
alleged occurrence is of 14-09-2023, but FIR is lodged on
16-09-2023 and as such, there is delay, which is not properly
explained and consequently, story put-forth is concocted and
fabricated. That, moreover, implication is in the backdrop of
previous disputes.
4. Learned counsel would further point out that, here, there is no
convincing evidence about age of victim. According to him, it was
fundamental duty of prosecution to prove the age as there were
charges under the POCSO Act also. He pointed out that, there is no
convincing legally acceptable evidence. That, trial Court has
appreciated available evidence and determined age on the basis of
documents like Transfer Certificate, which is not a valid piece of
evidence to establish age and as such, he criticizes judgment of trial
Court for holding victim to be a minor and for further applying the
provisions of the POCSO Act.
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5. It is his further submission that, here, there was no supportive
medical evidence also. That, medical expert has opined that, there
was old tear and there were no fresh injuries and therefore, the story
of prosecution was apparently falsified by its own evidence.
6. He pointed out that, the statements of victim and informant in
the Court are distinct than the narration given before learned Judicial
Magistrate First Class while recording statements under Section 164
of the Code of Criminal Procedure. According to him, moreover,
victim herself before Magistrate had submitted that she never wanted
to prosecute the accused.
7. It is also his submission that, here, surprisingly history was not
narrated by the victim to the Doctor, rather it was narrated by mother
of the victim, who had mere hearsay information.
8. Lastly, he submitted that, though it is alleged that incident had
taken place when victim had been to purchase tea powder and while
she was returning, accused allegedly took her inside the house,
investigating machinery failed to seize the tea powder rendering the
very case of prosecution doubtful.
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For all above reasons, legality and maintainability of the
impugned judgment is questioned.
ON BEHALF OF STATE AND VICTIM :
9. Both learned APP as well as learned counsel appointed for
victim would support the judgment and order. Substance of their
argument is that, victim, who was barely 12 years of age, was lured
initially by accused in the morning by assuring to pay money and in
the evening, when she had been to shop to purchase tea powder, he
had directed the victim to go to upper room to bring his money
wallet and thereafter, had followed her and had committed the above
acts. That, victim has narrated entire evidence in the witness box.
That, her version is inspiring confidence and therefore, learned trial
Court committed no error whatsoever in convicting the accused.
According to them, there is sufficient corroboration from medical
experts.
STATUS OF WITNESSES IN TRIAL COURT
10. The status of witnesses are PW1 informant/mother of victim,
PW2 victim, PW3 Ananda Gangaram Shinde, pancha to spot
panchanama; PW4 father of victim; PW5 Gautam Tulse, Grocery shop
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owner, PW6 Dr.Sharad Kumar P., medical expert, PW7 child witness,
PW8 Santosh Bhagwanrao Kadam, Head Master, PW9 Shivkumar
Shankarrao Tale, Head Master, PW10 Gautam Laxman Kamble,
Carrier, PW11 Umakant Vaijinath Pune, Investigating Officer.
Defence witness DW1, is sister of accused.
SUM AND SUBSTANCE OF EVIDENCE OF CRUCIAL WITNESSES
Relevant evidence is of PW1 informant, PW2 victim and PW4,
father of victim followed by that of PW6 medical expert and PW8 and
PW9 School Authorities.
11. PW1 Mother of victim deposed at exh.14 that, she had two
daughters and a son. That, victim daughter was 12 years of age.
That, incident took place eight months back. That day the victim
went to school in the company of her siblings. That, on the way,
accused was sitting in his flour mill and he called victim and abused
her but she proceeded to the school. She claims that, accused offered
Rs.20/- to her victim daughter and asked her to come near him.
Witness states that, her daughter informed in the evening that when
she was returning after purchasing tea powder, accused, who was
sitting, in front of his house, called her and sent her to upper room of
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his house and asked her to bring his money Wallet and when her
daughter went, accused followed, made her lay on ground, pressed
her chest and entire body, removed her leggings, pressed her private
part and also had bitten her private part and thereafter, he inserted
his finger into her private part and maintained physical relation with
victim against her will. That, her daughter returned home weeping
and she threw away the tea powder and on enquiry, reported the
above incident. She specifically deposed that, her father-in-law was
ill and therefore, they went to Police Station on 16-09-2023 and
lodged report exh.15. She also added that her father-in-law had died
the day on which she had lodged report.
Witness is extensively cross-examined and therefore, relevant
cross on the occurrence is reproduced. In initial paragraphs 6 and 7,
questions are posed upon timing of school, its distance, location of
Police Station, location of shop etc. In paragraph 8, she denied that
her father-in-law died in the morning of on 16-09-2023 and
volunteered that, he died in the evening. She answered that when
her daughter returned, she had brought the tea powder and that time
she found mark of teeth near the private part of the victim, but
answered that there was no bleeding from private part nor there
were blood stains on legging. She admitted that, she did not give
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clothes of victim to Police nor she witnessed the incident and she
learnt about incident from victim. Paragraph 9 of the cross is
devoted on family information of witness. Every suggestion is denied
by her. In paragraph 10, she answered that victim daughter did not
inform for which purpose accused was giving Rs.20/- to the victim.
She admitted that, she did not handover birth certificate of the victim
to the Police at the time of filing of report. She denied all
suggestions about the actual incident to have not been informed by
her daughter and that she filed false complaint.
12. PW2 Victim gave her age as 12 years, gave the name of her
school and also gave her date of birth as 19-11-2011 and deposed
that, she was 12 years of age and to be studying in 7 th standard and
that she would attend 8th Standard from June. She identified
accused as husband of her paternal aunt and she addressed him as
“Baba”. She narrated that while she was going to School with her
sisters at 12:00 noon, at that time, accused who was sitting near his
flour mill, flashed Rs.20/- and called her in the house, but she did
not go and so he abused her and getting scared, she proceeded to the
school. In paragraph 3, she narrated that at 07:00 p.m. while she
was proceeding home after visiting shop for bringing tea powder as
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asked by her mother, accused asked her to bring money purse from
the first floor of his house. According to her, when she went, he
followed her, nobody was in the room, he made her lie on cot forcibly
and started moving his hand on her chest, thereafter removed her
legging and took a bite of her private part. She claimed that he
should not do like it, but he made her quite and said not to tell
anyone or else he would kill her father. Thereafter, he inserted his
finger in her private part and again moved his hand over her chest.
Thereafter, she ran home and told incident to her mother as well as
cousin paternal aunt. She further deposed that, her grandfather was
seriously ill, who died on the day on which they had been to Police
Station and Police recorded her statement as well as her statement
being recorded under Section 164 of the Cr.P.C.. That, she was sent
for medical examination.
Victim is also subjected to grilling cross-examination wherein
she answered that, flour mill of the accused is on the main road and
that nobody was near her when accused called her. Accused showed
her Rs.20/- note from the distance and asked her to come and when
she went towards him, he asked her why she does not go to his
house. She replied that there was no dispute or quarrel between
accused and her father and she flatly denied that because of it, she
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did not go to house of accused. She answered that accused would
cut her bum and so she was scared and she went to school. She
admitted that, she did not inform incident in school to anybody and
after returning home at 5:30 p.m., she told her mother but her
mother did not pay much heed. Regarding the incident of evening,
she deposed that her mother asked her to bring tea powder and
accordingly she went to shop of Tulsibai which took 5 minutes to
reach the shop. She answered that, there was no rush on the shop
and according to her, accused was standing in front of his house at
that time. Regarding the actual occurrence, she is questioned in para
7, during which she answered that, she went to the room on first
floor, that time, tea powder was in her hand i.e. when accused made
her sleep on the cot forcibly. She admitted that, she did not shout.
She stated that, she was trying to push the accused and when he was
removing her legging, she shouted a little. There was no bleeding
when accused had bitten her private part and that she shouted when
he inserted the finger into her private part. She is unable to give
timing when she returned home. In paragraph 8, she answered that
she did not tell incident to her mother that time, but she volunteered
that she told it afterwards and further answered that she had told her
cousin paternal aunt whatever she had told to her mother. She
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answered that at Police Station, she herself and her mother both told
the incident to the Police and they both showed the spot to the
Police. She answered that there were no blood stains on her clothes
and so she did not give it to Police but answered that Police had
referred her for medical examination. In cross in paragraph 9, she
again answered that after the incident, when they went to Police
Station, there they learnt that her grandfather is serious. He died
early in the morning and after the last rituals at 03:00 p.m., they
again went to Police Station. All suggestions put in paragraph 10 are
denied by her.
13. PW4 father of victim in his evidence at exh.24 claims to have
learnt from his wife about accused asking their daughter to bring the
money purse from upper floor room of his house and when she went,
accused followed her and that, he removed clothes of his daughter,
touched her body, inserted his finger in her private part and took its
bite. That they did not go Police Station immediately because his
father was seriously ill and therefore, they went to Police Station on
16-09-2023.
In cross-examination he admitted that he personally did not
know about the incident. He answered that he went to Police Station
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after demise of his father. Then in cross paragraph 4 suggestions are
given that his brother-in-law never visits his house. He denied being
taken to another village for de-addiction of liquor. He also denied
that accused saw his brother-in-law and his wife together and
therefore, he got angry on his wife. He also denied for lodging false
report.
14. PW7 Child witness, who is cousin of victim, deposed at exh.36
about she and victim being cousins and going to school together.
According to her, in morning at 11:30 a.m. accused was sitting near
the flour mill and he called victim and asked her to come to his house
otherwise he would cut her ass. She stated that, he even threatened
to kill her father if she does not come. She identified the accused.
In cross-examination she answered that when the accused
made above utterance, at that time accused was 5-6 feet away from
her. She admitted that, incident was not reported to anybody in the
School. Rest all suggestions are denied by her.
MEDICAL EVIDENCE :
15. PW6 Dr.Sharad Kumar claims at exh.34 that, he and one
another lady Doctor namely Poonam examined victim on
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16-09-2023. That, history was asked to victim, but her mother
narrated the history that person namely Kachru Sarode had touched
the private part of the victim and had bitten her private part. In para
4, witness narrated that there was hymenal injury but there was no
fresh bleeding, no edema and old healed hymenal tears. Samples
were taken and they had opined that overall findings are consistent
with sexual intercourse. He identified the report exh.35 and on
going through the CA report, he again deposed that overall findings
are consistent with sexual intercourse. He further stated that bite
marks over a person can remain for a day or two depending upon the
force used.
While under cross-examination, he admitted that only mother
of victim told about incident. He further answered that they tried to
ask victim, but the victim was not responding and the victim did not
state anything to this witness. He admitted that, he did not notice
any injury on private part and there were no injury or bite marks
over the private part nor there was blood found on the person of
victim. He denied issuing false report.
EVIDENCE ON AGE OF VICTIM :
16. PW8 Santosh Bhagwanrao Kadam, who was Head Master of
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Z.P. Primary School, Nanded, in his evidence at exh.40, deposed
about carrying school admission record and that victim had taken
admission in their school in the first Standard. According to him,
admission was given on the basis of admission form tendered by the
parents i.e. mother. He placed on record admission application form
exh.39. According to him, in school record, date of birth of victim is
mentioned as 19-11-2011. In the admission application, same date is
mentioned and the contents of the copy filed in the Court is as per
school record and original form is correct. That victim took
education for four years in their school.
While under cross-examination he answered that birth date
mentioned in exh.41 is on the basis of Aadhaar Card of the victim
and except Aadhaar Card, no other document was submitted in
support of date of birth of victim and that, entries in the School
record regarding date of birth of the victim is on the basis of exh.41
and Aadhaar Card.
PW9 Shivkumar Shankarrao Tale, Teacher of Rani Laxmibai
High School, Nanded, where victim took admission in 5 th Standard,
carried admission record of the school and he deposed that alongwith
application for admission, T.C. of earlier school, Aadhaar Card and
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Mark Memo were tendered by father. That, on request, Nirgam Utara
is issued which is maintained by School and he identified it at
exh.44.
While under cross-examination he admitted that date of birth
is noted in the school record on the basis of T.C. and no birth
certificate of the victim was obtained. He is unable to state on what
basis date of birth of victim is 19-11-2011 which is reflected in the
school record.
PW10 Gautam Laxman Kamble and PW11 Umakant Vaijnath
Pune are carrier and Investigating Officer respectively.
DEFENCE WITNESS:
17. DW1 seems to be sister of accused and she claims that victim
was her niece. According to her, husband of informant was addicted
to liquor and he was taken to other village for de-addiction and
treatment. At that time, husband of sister of informant had come to
their house on account of illness of her father-in-law. At that time,
informant had quarreled with accused and as accused used to go to
the house of informant, there was quarrel between informant and
accused. According to her, she came to know that informant had
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filed false case against accused by taking aid of her daughter and that
accused is of good character.
Above witness is subjected to extensive cross-examination by
learned APP wherein she admitted that for the first time in the Court
she deposed about quarrel between informant and accused and she
had not given statement to Police. She is unable to give details of the
place where informant’s husband being treated. She admitted that
Police did not record her statement. She admitted that she had good
relations with sister of her husband. Rest is all denial.
ANALYSIS
18. The fundamental grounds raised in appeal is that firstly
prosecution failed to establish minority of the victim. Secondly,
medical evidence is not supporting fresh injury as there is old tear
and thus, prosecution failed to prove sexual assault. Thirdly, there is
delayed FIR. Fourthly, history to medical expert is not reported by
victim but by mother of victim and Fifthly, no recovery of tea powder.
FIRST GROUND – AGE OF VICTIM :
19. Here, there being charges under the provisions of the POCSO
Act, it is imperative for prosecution to first establish age of the victim
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to be below 18 years of the age. Therefore, at the outset, it is to be
seen whether prosecution has discharged this primary burden.
On the point of age, there is evidence of parents i.e. PW1 and
PW4, victim herself as PW2 and two School Authorities i.e. PW8 and
PW9.
PW1 Mother of victim, in her evidence at exh.14, gave age of
her daughter as 12 years. That, at the time of incident, her daughter
was studying in 7th Standard whereas she took admission in first
Standard in Z.P. School in Vijaynagar. That, birth of daughter took
place in Government Hospital at village Heer, Dist.Latur.
There is apparently no cross-examination of mother by defence
on the point of age of victim.
PW4 Father of victim, at exh.24 testified that, at the time of
incident, his victim daughter was 12 years of age.
Even there is no cross-examination of father by defence on the
point of age or date of birth.
Thus, though parents are the best witnesses on the point of
age, both mother and father merely deposed about their daughter to
be 12 years of age and mother went to the extent of stating that she
was studying in 7th standard at the time of incident.
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Victim has deposed as PW2 at exh.18 wherein she stated that
her date of birth is 19-11-2011. That, she studied in school at
Yeshwantnagar, Nanded and her earlier school was in Vijaynagar,
Nanded. That, at the time of incident, she was 12 years old and
studying in 7th standard.
Again, there is no effective cross-examination by defence even
of the victim on the point of age.
However, law is fairly settled that even if there is no challenge
to the age by defence, still prosecution has to discharge its initial
burden of proving the age of minor. Consequently, the other
evidence adduced by prosecution is visited and analyzed.
20. PW8 Santosh Bhagwanrao Kadam, at exh.40 gave evidence
that he was Head Master of Z.P. Primary School, Nanded. That,
victim was a student in their school. That, victim took admission in
1st Standard and the witness was carrying record of admission of
victim. That, admission was given on the basis of application
tendered by mother. He placed on record certified copy of school
record exh.41 and according to him, in school record, date of birth of
victim is 19-11-2011. He further deposed that victim studied in the
school for four years.
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While under cross-examination, he has admitted that he was
not working in Z.P. School when victim took admission in School.
According to him, the date of birth mentioned in exh.41 is on the
basis of Aadhaar Card of victim and except Aadhaar card, no other
document was tendered on the point of date of birth and that entries
in the School record regarding date of birth are based on exh.41 as
well as Aadhaar Card.
21. Another witness on the point of age adduced by prosecution is
PW9 Shivkumar Shankarrao Tale, Head Master of School, who
deposed that, victim was a student of their School, who took
admission in 5th standard and at the time of admission of victim,
application with T.C., Aadhaar Card and Mark Memo were submitted
by father. On the request of Police, Nirgum Utara exh.44 (Admission
Extract) was issued.
While under cross-examination witness admitted that date of
birth in School record is on the basis of T.C. submitted by victim.
That, birth certificate was not taken and this witness also claims to be
unaware as to on what basis, date of birth of victim is 19-11-2011
which is mentioned in record of earlier school.
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22. By plethora of judgments, the Hon’ble Apex Court has time and
again reiterated the procedure to be followed in determination of age
i.e. application of Rule 12 of Juvenile Justice (Care and Protection of
Children) Act, 2000 (for short “the JJ Act“). The said Rule is
reproduced as under :
“12. Procedure to be followed in determination of age.– (1) In every
case concerning a child or a juvenile in conflict with law, the court or
the Board or as the case may be, the Committee referred to in Rule 19
of these Rules shall determine the age of such juvenile or child or a
juvenile in conflict with law within a period of thirty days from the
date of making of the application for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the juvenile or
the child or as the case may be the juvenile in conflict with law, prima
facie on the basis of physical appearance or documents, if available,
and send him to the observation home or in jail.
(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 matriculation or equivalent certificates, if available;
and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(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
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done, the court or the Board or, as the case may be, the Committee,
for the reasons to be recorded by them, may, if considered necessary,
give benefit to the child or juvenile by considering his/her age on
lower side within the margin of one year, and, while passing orders
in such case shall, after taking into consideration such evidence as
may be available, or the medical opinion, as the case may be, record a
finding in respect of his age and either of the evidence specified in
any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause
(b) shall be the conclusive proof of the age as regards such child or
the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict
with law is found to be below 18 years on the date of offence, on the
basis of any of the conclusive proof specified in sub-rule (3), the court
or the Board or as the case may be the Committee shall in writing
pass an order stating the age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these Rules and a copy of
the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of Section 7-A, Section 64 of the Act and
these Rules, no further inquiry shall be conducted by the court or the
Board after examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to
those disposed of cases, where the status of juvenility has not been
determined in accordance with the provisions contained in sub-rule
(3) and the Act, requiring dispensation of the sentence under the Act
for passing appropriate order in the interest of the juvenile in conflict
with law.”
23. The Hon’ble Apex Court while delivering judgment in the
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celebrated case in Jarnail Singh v. State of Haryana (2013) 7 SCC
263 which has consistently been followed in numerous other cases,
reproduced the observations of its earlier judgments in the case of
State v. Charan Singh and State v. Mohan, wherein it has been
observed in para “22. On the issue of determination of age of a
minor, one only needs to make reference to Rule 12 of the Juvenile
Justice (Care and Protection of Children) Rules 2007”.
And further in para 23 of the above judgment, it has been
observed as under :
23. 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 of a child who is a victim of crime. For, in our view, there is
hardly any difference insofar 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 VW, PW 6. 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 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 child concerned is the highest rated option. In case,
the said certificate is available, no other evidence can be relied upon.
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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 12(3) postulates reliance on a birth
certificate issued by a corporation or a municipal authority or a
panchayat. Yet again, if such a certificate is available, then no other
material whatsoever is to be taken into consideration for determining
the age of the child concerned, as the said certificate would
conclusively determine the age of the child. It is only in the absence of
any of the aforesaid, that Rule 12(3) postulates the determination of
age of the child concerned, on the basis of medical opinion.”
24. What is emerging from above discussion is that, Rule 12 of the
the Juvenile Justice (Care and Protection of Children) Rules 2007,
assigned in descending order the importance and primacy as proof of
age i.e. firstly Matriculation or equivalent certificate, secondly, date
of birth as recorded by school first attended and thirdly, certificate of
birth given by Corporation, Municipal Authority or Panchayat. This is
the hierarchy of documents that is expected for determination of age
and till recently the above requirement is reemphasized in the case of
P. Yuvaprakash v. State represented by Inspector of Police, 2023 SCC
Online 846, which is a case directly dealing with dispute with regard
to age of a person in the context of he or she to be victim of offence
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under the POCSO Act.
The above is the settled legal requirement on the point of age
determination.
25. Keeping above position of law in mind, evidence in the case in
hand is appreciated. As stated above, here parents of victim are
consistent about victim to be of 12 years of age.
The best evidence or the best witnesses on the point of date of
birth undeniably are parents, but they have not given date of birth
and they merely deposed about their daughter to be of 12 years of
age. There is other evidence in the form of testimony of PW8 and
PW9, who are Head Masters of each of the School where victim
allegedly took education. They are speaking about mother of victim
tendering application form with copy of Aadhaar Card and father of
victim tendering application for admission in 5th Standard alongwith
Transfer Certificate, Aadhaar Card and Mark Memo. Admittedly,
there is no birth certificate issued by the Local Body. Unfortunately,
though victim was born in a Government Hospital, parents do not
seem to have bothered to collect birth certificate.
26. Resultantly, here, firstly the only documentary evidence in
{25} CR APPEAL 122 OF 2025 F
support of age is Transfer Certificate, secondly, Aadhaar Card and
thirdly Mark Memo. The third category of document i.e. Mark Memo
is of no value. Consequently, only documents on behalf of
prosecution, which remain for consideration, are Transfer Certificate
and Aadhaar card.
27. The Hon’ble Apex Court in the recent judgment in P.
Yuvaprakash (supra) has already declared that School Transfer
Certificate is not to be accepted for age determination of victim of
POCSO. Therefore, Transfer Certificate is of no avail to the
prosecution.
28. The document on the strength of which PW8 Head Master gave
admission and took note of date of birth of the victim in the 1 st
Standard is Aadhaar Card and there is admission to that extent by
this witness in cross. This witness has categorically admitted that
except Aadhaar card, no other document is submitted on the point of
date of birth.
29. Now, the question here is whether in view of above settled
legal pronouncements on the point of age and nature and hierarchy
{26} CR APPEAL 122 OF 2025 F
of documents to be considered while determining age, an Aadhaar
Card can be relied or not ? Admittedly, such type of document does
not find place in the nature of documents which assume importance
and preference while determining age of a victim under the POCSO
Act and as held in above rulings.
30. As regards to consideration of Aadhaar card for determining
age is concerned, the Hon’ble Apex Court in Civil Appeal arising out
of SLP(C) Nos.23939-23940 of 2023 in the case of Saroj and Ors. v.
Iffco-Tokio General Insurance Co. and Others , though while dealing
with appeal wherein there was challenge to the order of High Court
in First Appeal arising out of motor accident claim petition, had
occasion to deal with the probative value of Aadhaar Card on the
point of age determination. Yet again, in paragraph 9.4 the Hon’ble
Apex Court has observed as under :
“9.4. The second aspect is the age of the deceased. The High Court, relied
on the age as mentioned in the Aadhar Card of the deceased, i.e., 1st
January, 1969. However, as submitted by the claimant-Appellants, the
School Leaving Certificate records the date of birth of the deceased to be
7th October, 1970. This will affect the multiplier to be applied. Let us now
consider this question.
It has to be noted at the outset that a School Leaving Certificate has
been accorded statutory recognition. Sub-section (2) of Section 94 of the
{27} CR APPEAL 122 OF 2025 FJuvenile Justice (Care and Protection of Children) Act, 2015 reads thus:
“(2) In case, the Committee or the Board has reasonable grounds for
doubt regarding whether the person brought before it is a child or not, the
Committee or the Board, as the case may be, shall undertake the process of
age determination, by seeking evidence by obtaining
_
(i) the date of birth certificate from the school, or the matriculation or
equivalent certificate from the concerned examination Board, if
available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority
or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or the
Board…”
(Emphasis Supplied)
Whether the Aadhar Card is sufficient proof of a person’s age, has
come up for consideration before some High Courts, albeit in the context of
different statutes. We shall refer to a few instances but, prior to doing so, it
is also important to take note of the purpose behind introduction of the
Aadhar Scheme. In the Constitution Bench judgment in K.S. Puttaswamy v.
Union of India (5-J.), (2019) 1 SCC 1, Dr. A.K. Sikri, J. wrote as
hereinbelow extracted, encapsulating the object and purpose of Aadhar:
“24. Before adverting to the discussion on various issues that have been
raised in these petitions, it would be apposite to first understand the
structure of the Aadhaar Act and how it operates, having regard to various
provisions contained therein. UIDAI was established in the year 2009 by an
administrative order i.e. by resolution of the Govt. of India, Planning
{28} CR APPEAL 122 OF 2025 FCommission, vide notification dated January 28, 2009. The object of the
establishment of the said Authority was primarily to lie down policies to
implement the Unique Identification Scheme (for short the ‘UIS’) of the
Government, by which residents of India were to be provided unique
identity number. The aim was to serve this as proof of identity, which is
unique in nature, as each individual will have only one identity with no
chance of duplication. Another objective was that this number could be
used for identification of beneficiaries for transfer of benefits, subsidies,
services and other purposes. This was the primary reason, viz. to ensure
correct identification of targeted beneficiaries for delivery of various
subsidies, benefits, services, grants, wages and other social benefits schemes
which are funded from the Consolidated Fund of India …
Summing up the Scheme:
62. The whole architecture of Aadhaar is devised to give unique identity
to the citizens of this country. No doubt, a person can have various
documents on the basis of which that individual can establish her identity. It
may be in the form of a passport, Permanent Account Number (PAN) card,
ration card and so on. For the purpose of enrollment itself number of
documents are prescribed which an individual can produce on the basis of
which Aadhaar card can be issued. Thus, such documents, in a way, are also
proof of identity. However, there is a fundamental difference between the
Aadhaar card as a means of identity and other documents through which
identity can be established. Enrollment for Aadhaar card also requires
giving of demographic information as well as biometric information which
is in the form of iris and fingerprints. This process eliminates any chance of
duplication. It is for this reason the Aadhaar card is known as Unique
Identification (UID). Such an identity is unparalleled.”
(Emphasis supplied)
9.5. Turning back to the question of whether Aadhar Card can serve as a
proof of age, a perusal of some High Court judgments reveals that this
question has been considered on quite a few occasions in the context of the
{29} CR APPEAL 122 OF 2025 F
JJ Act. Illustratively, in Manoj Kumar Yadav v. State of M.P. , 2023 SCC
OnLine MP 1919 a learned Single Judge of the Madhya Pradesh High Court
held that when it comes to establishing the age, on a plea of juvenility the
age mentioned in the Aadhar Card could not be taken as a conclusive proof
in view of Section 94 of the JJ Act. Similar observations have been made in
Shahrukh Khan v. State of M.P.,, 2023 SCC OnLine MP2740 holding that if
the genuineness of the School Leaving Certificate is not under challenge,
the said document has to be given due primacy.
The Punjab & Haryana High Court in the context of the Prohibition
of Child Marriage Act, 2006, in Navdeep Singh & Anr. v. State of Punjab &
Ors., 2021 SCC OnLine P&H 4553 held that Aadhar Cards were not “firm
proof of age”. Observations similar in nature were also made in Noor Nadia
& Anr. v. State of Punjab & Ors., 2021 SCC OnLine P&H 1514, Muskan v.
State of Punjab, 2021 SCC Online P&H 3649 as well as several other
orders/judgments, in various contexts.
Views aligning with the one referred to above have been taken by
the High Court of Judicature of Allahabad in Parvati Kumari v. State of U.P. ,
2019 SCC OnLine All 7085; the Himachal Pradesh High Court in Kumit
Kumar v. State of H.P. , 2024 SCC OnLine HP 2965 and the High Court of
Kerala in Sofikul Islam v. State of Kerala, 2022 SCC OnLine Ker 5814.
9.6. We find that the Unique Identification Authority of India, by way of its
Circular No.08 of 2023, has stated, in reference to an Office Memorandum
issued by the Ministry of Electronics and Information Technology dated
20th December 2018, that an Aadhar Card, while can be used to establish
identity, it is not per se proof of date of birth. This office memorandum
dated 20th December, 2018 was taken note of by a learned Division Bench
of the Bombay High Court in State of Maharashtra v. Unique Identification
Authority of India And Ors., in Criminal Writ Petition No.3002 of 2022 in its
order dated 28th July, 2023. The Circular is extracted hereinbelow for ready
reference:
{30} CR APPEAL 122 OF 2025 F
F.No.HQ-13065/1/2022-AUTH-II HQ/8075
Unique Identification Authority of India
(Authentication and Verification Division)UIDAI Headquarter
Bangla Sahib Road, Behind Kali Mandir
Gole Market, New Delhi-110 001
Dated 22.12.2023Circular No.08 of 2023
Subject: Accepting Aadhar as a proof of Date of Birth (DoB) – regarding.
It has been observed that AUAs/KUAs are considering and accepting
Aadhar card / e-Aadhaar as one of the acceptable documents for proof of
Date of Birth (DoB).
2. In this regard, it is pertinent to mention that, Aadhaar is a unique 12
digit ID issued to a resident after he/she undergoes the enrolment process
by submitting his/her demographic and biometric information. Once a
resident is assigned an Aadhaar number, it can be used to authenticate the
resident through various modes as prescribed under Aadhaar Act, 2016 and
Regulations framed there under.
3. At the time of enrolment/updation, UIDAI records DoB as claimed by
the resident, on the basis of the documents submitted by them, as specified
under the list of supporting documents for Aadhaar enrolment, provided on
the UIDAI website (https://uidai.gov.in/images/commdoc/26 JAN 2023
Aadhar List of documents English.pdf). Further, it is to be noted that
Regulations 10(4) and 19A of the Aadhaar (Enrolment and UPDATE)
Regulations, 2016, mention that verification of the enrolment and update
data shall be performed as provided in Schedule III.
4. In this regard, attention is drawn towards Office Memorandum dated
{31} CR APPEAL 122 OF 2025 F20.12.2018 issued by MeitY through UIDAI, where it has been stated that
“An Aadhaar number can be used for establishing identity of an individual
subject to authentication and thereby, per se its not a proof of date of birth”
(copy enclosed).
5. This aspect of the Aadhar Act, 2016 has been reiterated/
highlighted/stressed upon by different High Courts in recent judgments.
The most recent one is given by the Hon’ble High Court of Bombay, in the
case of State of Maharashtra V/S Unique Identification Authority of India
And Ors. dated 28.07.2023 (copy enclosed).
6. In view of the above, it is required that use of Aadhaar, as a proof of
DoB needs to be deleted from the list of acceptable documents.
7. This issues with the approval of the Competent Authority.
Encl : As above.
(Sanjeev Yadav)
Director
Tel: 011-23478609
Email: [email protected]”
(Emphasis supplied)
Taking note of above circular, it is further observed as under :
9.7. Judicial notice has also been taken of the circular above. Recently, a
learned Single Judge of the Gujarat High Court in Gopalbhai Naranbhai
Vaghela v. Union of India & Anr., in Civil Special Application No.16484 of
2022, in view thereof directed the release of the Petitioner’s pension in
accordance with the date as mentioned in the School Leaving Certificate,
keeping aside the difference in the date of birth as mentioned in the Aadhar
Card, which was not relevant for the purpose of such consideration.
{32} CR APPEAL 122 OF 2025 F
9.8. In Shabana v. NCT of Delhi, 2024 SCC OnLine Del 5058 a learned
Division Bench of the Delhi High Court in a case where the Petitioner-
mother sought a writ of habeas corpus for her daughter, recorded a
statement made for and on behalf of UIDAI that “Aadhar Card may not be
used as proof of date of birth.”
31. Above discussion thereby settles the issue of validity and
sufficiency of an Aadhaar Card to decide on the age. It is merely an
identity document and nothing beyond. It is thus categorically
emphasized that Aadhaar Card cannot be used to determine age.
Here, as discussed above, PW8 the Head Master of the first
school where victim took education, in his cross-examination, has
candidly admitted that except Aadhaar Card, no other proof was
supplied to record date of birth of victim in the school record.
For above reasons, prosecution could not discharge its
fundamental burden of proving victim to be a “child” i.e. below 12
years of age. But definitely she was below 16 years of age.
SECOND GROUND ON THE POINT OF SEXUAL ASSAULT :
32. Now, let us move to the other equally crucial aspect i.e.
whether further prosecution has also succeeded in establishing
charges of rape and sexual assault.
On above charges, indeed, it is the only evidence of victim
{33} CR APPEAL 122 OF 2025 F
followed that of her parents and medical experts. Here, both parents
who have testified as PW1 and PW4, are obviously reported by their
victim child. Hence, it would be appropriate to deal with evidence of
PW2 victim, who is examined at exh.18.
In paragraph 2, after deposing that she knew accused, who was
present in the Court to be husband of her paternal aunt and after
stating that she addressed him as “Baba”, she deposed that on the
date of incident, while she was going to School with her real sister
and cousin sister at 12:00 Noon, at that time, on the way, accused
was sitting near the flour mill and he flashed a Rs.20/- note to her
and called her in the house and even abused her in filthy language if
she does not come. She testified that she got scared and went to the
School with her sisters.
In paragraph 3, she has deposed that her mother had sent her
to fetch tea powder from grocery shop at 07:00 p.m. and therefore,
she went, purchased the tea powder and was returning home. That,
accused, who was present in his house, called her and told her that
his money purse is on the first floor of his house and asked her to
bring it. She claims that she went to the said room. Accused
followed her and he also came into the room where nobody was
there. That time accused forcibly made her lie on the cot, started
{34} CR APPEAL 122 OF 2025 F
feeling his hand over her chest, then removed her legging, and had
bitten her private part. She testified that, she said that he should not
do like this, but he asked her to keep quite and further said that if
she tells to anybody about it then he will kill her father. Accused
thereafter inserted his finger into her private part and again moved
his hand over the chest. Thereafter, she ran home and reported the
incident to her mother as well as to her paternal aunt.
Defence has cross-examined witness on the above occurrence
and in paragraph 7, she has answered that she went to the room on
the first floor when accused asked her to go there, when tea powder
was with her. She was much scared when she went in the said room
and when accused was making her sleep on the cot forcibly. She
answered that she did not shout. Again she answered that tea
powder was in her hand only. Then she answered to further question
that she was trying to push the accused. She answered that while
accused was removing her legging, she shouted a little. She
answered that there was no bleeding when accused had bitten her
private part. To further question, she again answered that she
shouted when accused inserted his finger into her private part and
for the third time, she answered that tea powder was in her hand till
then. She answered that, she is unable to remember at what time
{35} CR APPEAL 122 OF 2025 F
she returned home.
33. Both parents i.e. firstly mother PW1, who is the first person to
whom the victim confided about the occurrence with her and
secondly, her father PW4, who had learnt from his wife i.e. mother of
victim, have also narrated the occurrence on almost similar lines to
that of the child. Consequently, there is corroboration. There is no
effective cross-examination either of mother or of father on the point
of sexual assault.
34. Here, prosecution has examined medical expert PW6, who was
said to be a Resident Doctor in Government Hospital on 16-09-2023
and after deposing about receiving requisition from Shivajinagar
Police Station for examining victim in crime registered at
Shivajinagar Police Station, he claims that he and his colleague Dr.
Poonam had examined the victim in presence of staff Nurse and after
noting identification marks, he claims to have asked for the history,
which was supplied by mother of the victim that, one person by name
Kachru Sarode had touched the private part of the victim and had
bitten her private part. Accordingly, this medical expert noted the
history and she has narrated in paragraph 4 of the examination-in-
{36} CR APPEAL 122 OF 2025 F
chief that on examination of private part, it was found that the
hymenal injury was present but there was no fresh bleeding. There
was old healed hymenal tears and those were in 5, 7 and 9 O’clock
position. He deposed that, on examination of the victim, they opined
that overall findings are consistent with sexual intercourse. After
going through CA report, witness answered that, opinion expressed
in exh.35 is final and overall findings are consistent with sexual
intercourse. He further deposed that bite marks over the person can
be there for a day or two depending upon the force used.
While under cross-examination at the hands of defence, it is
brought on record that victim had come with her mother to
Government Hospital. Only mother of the victim had told about the
incident. That victim did not state anything. He answered that
except hymenal tear, they did not notice any injury on private part of
the victim. That, there were no marks of injury of bite over the
private part of the victim. That, there was no blood on the clothes of
the person of the victim. Rest is all denial.
35. In the light of above discussion, here, there is testimony of very
victim about acts of the accused. She had mustered courage to
depose before the Court the entire episode, which took place in the
{37} CR APPEAL 122 OF 2025 F
house of accused after he had asked her to go to the first floor of his
house to bring his purse. She has clearly deposed the pervert acts
indulged into by accused to whom she used to address as “Baba” (in
vernacular as an elderly person). The manner of cross-examination
of victim reproduced above, clearly shows that there is absolutely no
challenge to the occurrence. Rather the manner of cross-examination
clearly shows that occurrence got reaffirmed even while under cross-
examination. Coupled with testimony of victim, there is evidence of
medical expert PW6, who had also confirmed about hymenal tears.
36. Here, PW6 medical expert has not noticed any bleeding or bite
marks. However, it needs to be borne in mind that examination of
victim is not done in the same evening or night and rather it is done
after FIR was lodged by mother on 16-09-2023 i.e. after 2-3 days and
therefore, obviously there may not be fresh marks of injury. Even
otherwise, it is to be noted that the act is shown to be done by
accused by putting victim in fear. Both in examination-in-chief as
well as in cross-examination, victim had stated that she had shouted
out of pain when finger was inserted in her private part. She herself
has stated that there was no bleeding. But PW6 medical expert has
already confirmed and corroborated victim’s evidence.
{38} CR APPEAL 122 OF 2025 F
37. It is fairly settled law that even in absence of medical
corroboration, conviction can be returned for offence of rape
provided sole testimony of the victim inspires confidence. On this
count, law has been propounded by the Hon’ble Apex Court in the
case of State of Himchal Pradesh v. Manga Singh (2019) 16 SCC 759
and the relevant paragraph for ready reference is borrowed and
quoted hereunder :
“10. The conviction can be sustained on the sole testimony of the
prosecutrix, if it inspires confidence. The conviction can be based
solely on the solitary evidence of the prosecutrix and no corroboration
be required unless there are compelling reasons which necessitate the
courts to insist for corroboration of her statement. Corroboration of
the testimony of the prosecutrix is not a requirement of law, but a
guidance of prudence under the given facts and circumstances. Minor
contractions or small discrepancies should not be a ground for
throwing the evidence of the prosecutrix.
11. It is well settled by a catena of decisions of the Supreme Court
that corroboration is not a sine qua non for conviction in a rape case.
If the evidence of the victim does not suffer from any basis infirmity
and the “probabilities factor” does not render it unworthy of credence.
As a general rule, there is no reason to insist on corroboration except
from medical evidence. However, having regard to the circumstances
of the case, medical evidence may not be available. In such cases,
solitary testimony of the prosecutrix would be sufficient to base the
conviction, if it inspires the confidence of the court.”
38. The above discussion also puts to rest the controversy raised in
{39} CR APPEAL 122 OF 2025 F
appeal by accused that there is no convincing medical evidence. On
the contrary, here, the testimony of the victim is of sterling quality
and it does inspire confidence and said sole testimony can safely be
relied as it seems to be natural account reproduced by the victim of
the ordeal faced by her. Hence, occurrence of sexual assault is also
substantiated by the prosecution in the trial Court.
THIRD GROUND :
39. Yet another ground raised by accused before this Court is that
there is delayed FIR.
It is tried to be submitted that alleged occurrence is of
14-09-2023 but FIR is of 16-09-2023. There is already animosity
between informant and accused and therefore, there is possibility of
false implication.
40. Indeed, here, occurrence is of evening of 14-09-2023 and FIR
is lodged on 16-09-2023 i.e. after 2-3 days. However, there is
plausible explanation for the delay and both victim and informant
mother have supplied the same. Explanation is that, on the very
fateful day faced by the victim, her grandfather i.e. father-in-law of
PW1 mother of victim, was seriously ill. PW1 informant in paragraph
{40} CR APPEAL 122 OF 2025 F
4 of the examination-in-chief itself has stated that on that day, her
father-in-law was suffering from illness and therefore, she visited
Police Station on 16-09-2023. She further testified that her father-in-
law died on the same day on which she filed report.
PW2 Victim also in paragraph 4 of the examination-in-chief
stated that her grandfather was seriously ill during that period and
he died on the day on which they had been to Police Station. Again
in paragraph 9 of cross-examination, victim has confirmed that when
they were at Police Station after the incident, there they came to
know that her grandfather is serious and he died early morning next
day. His last rites were performed in the afternoon and they again
went to Police Station in the evening. Consequently, there is ample
evidence for the delay caused in lodging report. Even otherwise, it is
settled position that delay in cases of such nature cannot be given
undue importance as it is natural for the victim and informant to
prevent themselves from being shamed by society. Hence, delay so
caused is of no significance.
FOURTH GROUND :
41. History to medical expert not reported by victim but by
mother.
{41} CR APPEAL 122 OF 2025 F
Learned counsel for appellant would vociferously submits that
victim has not given the history to the medical expert and narration
is by mother and as such even on such count story of prosecution
comes under shadow of doubt,.
Admittedly, here, as usual mother has accompanied victim for
lodging report and on referral, had been to medical expert PW6.
Even this medical expert deposed that history was given by mother.
Admittedly, the girl is of tender age and therefore, she may not be
comfortable in disclosing the history of occurrence, which had
befallen on her. The Hon’ble Apex Court in the recent judgment of
State of Rajasthan v. Chatra, 2025 INSC 360 has held that “child
witness’ silence not detrimental to the prosecution’s case “. In this
case Hon’ble Rajasthan High Court had acquitted accused due to
silence of witness, but in appeal the Hon’ble Apex Court set aside the
said judgment of the High Court making above observations. Taking
the same into account, above submission made by learned counsel
for appellant cannot be allowed to be sustained, more particularly,
when there is cogent, reliable, substantive evidence of the victim
before the Court.
{42} CR APPEAL 122 OF 2025 F
FIFTH GROUND :
42. No recovery of tea powder.
The above ground has no much force. Mere failure of
investigating machinery to collect tea powder for which the child had
left the house and had returned after having experienced the
shocking incidence, it is not fatal, more particularly, when mother has
stated that victim returned home weeping and she threw away the
tea powder. Therefore, the reaction of the child is obvious. Under
such circumstances, when the FIR itself is lodged after 2-3 days for
which there is plausible explanation, mere failure of investigating
machinery to collect tea powder, entire case of prosecution, which
otherwise is found convincing, cannot be said to be doubtful.
SUMMATION
43. To sum up, here, though there is no cogent and reliable
evidence that victim was of 12 years of age, however, under no
circumstances, she was beyond 16 years of age. Act of accused of
penetrating finger in the private part of victim is proved by
prosecution beyond reasonable doubt. Similarly, allegation of victim
that accused had taken bite of her private part is also proved.
Consequently, offence under Sections 375(b) and (d) punishable
{43} CR APPEAL 122 OF 2025 F
under Section 376(3) of the IPC, offence under Section 506 of the
IPC as well as offence under Sections 3(b) and (d) punishable under
Section 4(2) of the POCSO Act, are shown to be committed by the
accused. Similarly, even charge under Section 7 punishable under
Section 8 of the POCSO Act, is brought home. However, as victim is
not proved to be below 12 years, conviction for offence under Section
376AB of the IPC and under Section 5(m) punishable under Section
6 of the POCSO Act, cannot be maintained.
44. Perused the judgment under challenge. Except conviction
under Section 376AB of the IPC and under Section 5(m) punishable
under Section 6 of the POCSO Act, all charges are held to be proved
by assigning cogent and sound reasons. Accordingly, following order
is passed.
ORDER
(i) The Judgment and order dated 16-01-2025 passed
by the learned Sessions Judge, Nanded in Special (POCSO)
Case No.157 of 2023, thereby convicting and sentencing
appellant for offence under Sections 375(b) and (d)
punishable under Section 376(3) of the IPC, for offence
under Section 506 of the IPC as well as for offence under
Sections 3(b) and (d) punishable under Section 4(2), and
for offence under Section 7 punishable under Section 8 of
the POCSO Act, is maintained.
{44} CR APPEAL 122 OF 2025 F
(ii) The Judgment and order dated 16-01-2025 passed
by the learned Sessions Judge, Nanded in Special (POCSO)
Case No.157 of 2023, to the extent of convicting appellant
for offence under Section 376AB of the IPC and under
Section 5(m) punishable under Section 6 of the POCSO
Act, is set aside.
(iii) Rest of the judgment and order of the trial Court is
kept intact.
(iv) Fees of learned counsel appointed for respondent
no.2 is to be paid through the High Court Legal Services
Sub-Committee, Aurangabad, as per Rules.
(v) Criminal Appeal is disposed of in above terms.
( ABHAY S. WAGHWASE )
JUDGE
SPT