Bombay High Court
Santosh Maroti Bhandare vs The State Of Maharashtra on 6 February, 2026
2026:BHC-AUG:6078
905.APEAL.567.2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 567 OF 2024
Santosh Maroti Bhandare
Age : 25 Years, Occu : Driver,
R/o. Bahadar Pura, Tq. Kandhar,
Dist. Nanded ...APPELLANT
VERSUS
1. The State of Maharashtra,
Through Police Station Bhagyanagar
Tq. Kandhar, Dist. Nanded.
2. XYZ ...RESPONDENTS
WITH
CRIMINAL APPEAL NO. 740 OF 2024
XYZ ...APPELLANT
VERSUS
1. Santosh Maroti Bhandare
Age : 25 Years, Occu : Driver,
R/o. Bahadar Pura, Tq. Kandhar,
Dist. Nanded
2. The State of Maharashtra,
Through Police Station
Bhagya Nagar, Nanded.
Tq. & Dist. Nanded. ...RESPONDENTS
***
● Mr. G. G. Suryawanshi, Advocate for the Appellant in Criminal
Appeal No.740 of 2024 and Respondent No.2 in Criminal Appeal
No.567 of 2024
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● Mr. Rupesh A. Jaiswal, Advocate the Appellant in Criminal Appeal
No.567 of 2024 and Respondent No.1 in Criminal Appeal No.740
of 2024
● Ms. M. N. Ghanekar, APP for Respondent - State in both matters.
***
CORAM : RAJNISH R. VYAS, J.
DATE : FEBRUARY 06, 2026
JUDGMENT :
1. Heard the respective counsels for the parties.
2. The questions that fall for consideration in the present
appeals are:-
“A) Whether the accused was rightly convicted and
sentenced by the Trial Court?
B) Whether imposition of a statutory minimum sentence
by the Appellate Court, by taking recourse to Section
386 of the Code of Criminal Procedure, 1973 which
the Trial Court did not award, would amount to
enhancement of sentence ?”
3. Criminal Appeal No. 567 of 2024 is against the conviction
filed by the sole accused who was convicted by the Extra District Judge
& Additional Sessions Judge, Nanded in Special Case No.26 of 2012
dated 20th June 2024 challenging his conviction for commission of
offence punishable under Sections 376 (2)(n) of the Indian Penal
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Code, 1860 (hereinafter would be referred as “IPC” for the sake of
brevity) and under section 5(l) punishable under Section 6 of the
Protection of Children From Sexual Offences Act, 2012 (hereinafter
would be referred as “the Act of 2012” for the sake of brevity). The
accused was sentenced to suffer rigorous imprisonment for a period of
7 years and to pay a fine of ₹ 5000/- for the offence under Section
5(l), punishable under Section 6 of the Act of 2012. The accused is
acquitted of the commission of offences punishable under Sections 363
and 366-A of IPC. No separate sentence was awarded for the
commission of an offence punishable under Section 376(2)(n) of IPC.
4. It is necessary to mention here that Criminal Appeal
No.740 of 2024 is also preferred by the victim to award a statutory
minimum sentence.
5. Since both appeals involved appreciation of the same
evidence, they are heard together.
6. Heard Mr Rupesh Jaiswal, learned counsel for the accused,
in both appeals. Ms. Ghanekar, learned APP for the respondent – State
and Mr. Suryawanshi, learned counsel appearing for the victim.
7. In short, it is the case of the prosecution that on the day of
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the incident, i.e., 20th January 2022 at about 06.00 pm, when the
victim had been to eat panipuri at Swiss Bakery, the accused came in a
car and asked her to sit in the car. By further saying that they would
flee away and perform the marriage. Accordingly, the victim sat in the
car, and the accused then took her to Aurangabad on a motorcycle to
his maternal Aunt’s daughter’s place. From where they went to
Ahmadabad by travel bus and hired a room. On 23rd January 2022 and
on 24th January 2022, the accused committed forcible sexual
intercourse under the pretext of performing the marriage.
8. On 25th January 2022, the Police Officials from Nanded
visited the Ahmadabad i.e. the place of occurrence and brought the
victim and the accused to Bhagyanagar Police Station.
9. It is in this background that the First Information Report
No.25 of 2022, dated 21 st July 2022, came to be registered against the
appellant, at the instance of the mother of the victim.
10. During the course of the investigation, the accused was
arrested on 26th January 2022 and was subjected to the medical
examination, as was the victim. The clothes of the accused as well as
the victim were seized and forwarded for forensic examination.
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11. The vehicle, which was used by the accused, was also
seized. During the course of the investigation, statements of various
witnesses were also recorded, and upon completion of investigation, a
final report No.27 of 2022, dated 10th March 2022, was filed.
12. On 28th December 2022, the Extra Joint Additional
Sessions Judge, Nanded, framed the charges below Exhibit 42 for
commission of offences punishable under Sections 376(2)(n) and
376(3) of IPC, as also section 6 of the Act of 2012. The accused did not
plead guilty, and to bring home the charge, the prosecution examined
in all 10 witnesses.
13. Further, several documents were relied upon, including the
CA report, which was Exhibited 51 and 52.
14. The accused was thereafter questioned under section 313
of Cr.P.C., and in which he stated that since the accused was working as
a Driver on the car owned by the Uncle of the victim, and since he left
the job as his salary was not paid, a false case was filed against him.
He further stated in the 313 statement that, due to frequent quarrels
between the victim’s mother and the father, the victim became
annoyed and frustrated; therefore, she would says that they would run
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away. Thereafter, the accused was not aware of the victim’s
whereabouts. The accused neither entered into the witness box nor
examined any witness. After considering the evidence on record, the
accused was convicted of the offence stated above.
15. It is necessary to mention here that the Trial Court has
acquitted the accused for the commission of offences punishable under
Sections 363 and 366-A of IPC.
16. At the outset, it is necessary to look into the provision of
Section 376(2)(n) of IPC, which prescribes the punishment for the
commission of an offence, for a person who commits rape repeatedly
on the same woman.
17. The provision under Section 375 of IPC is briefly discussed
to appreciate the controversy involved in the present case. Rape is
defined under Section 375 of IPC. According to which, whoever
penetrates his penis to any extent into the vagina, mouth, urethra or
anus of a woman or makes her do so with him or any other person, is
said to commit an offence of rape. The essential element of rape is the
insertion of the penis to any extent into the vagina, mouth, urethra or
anus of a woman or makes her do so with him or any other person. It
must be against the victim’s will and without consent.
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18. So far as the conviction under Section 6 of the Act of 2012,
is concerned, suffice it to say that it prescribes the punishment for
aggravated penetrative sexual assault. The penetrative sexual assault is
defined under Section 3 of the Act of 2012, which means that
penetration of the penis to any extent into the vagina, mouth, urethra
or anus of a child or makes the child do so with him or any other
person. Thus, the definition of rape under Section 375 of IPC is
somewhat similar.
19. The accused is also convicted for the commission of
offence under Section 5(l), punishable under Section 6 of the Act of
2012, which deals with aggravated penetrative sexual assault, and it
means committing sexual assault repeatedly, more than once, on a
child.
20. Coming to the facts of the case, it will have to be seen
whether the victim of the crime was a child, as defined under Section
2(d) of the Act of 2012, which provides that “child” means any person
below the age of eighteen years. In this regard, the testimony of the
mother of the victim (PW-1), Investigation Officer (PW-9), and the
Medical Health Officer (PW-10) would be of assistance.
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21. PW-1 is the mother of the victim, who deposed that the
victim at the time of the incident was 14 years and 2 months. She
stated that the victim was born in Aayurvedik Hospital, Nanded, on
09th November 2007. She produced the birth certificate of the victim,
which was exhibited as Exhibit 57, subject to the accused’s objection. If
the birth certificate Exhibit 57 is perused, revealing that the victim was
born on 09th November 2007 and that the certificate was issued on 26 th
December 2007. The Registration number is 16170 dated 14 th
December 2007. Thus, the birth certificate was issued much before the
registration of the first information report. It further reveals the child’s
name, place of birth, and the names of the father and mother.
22. PW-10 is a Doctor who has been working as a Medical
Officer in Nanded since 1997. He stated that in 2016, he was working
as a Medical Health Officer, and the Municipal Corporation had
maintained birth/death records online since 2012. He submitted that
before 2012, the hospital used to inform of the birth of a child by
submitting the prescribed form, and based on that, the Municipal
Corporation’s office used to take entry in its records. He submitted that
the said information is referred to as the birth report, and on the day
of the deposition, he brought the entire birth record for 2007. He
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further filed the online birth record of the victim at Exhibit 94. A copy
of the original was filed, and his certificate was to be proved, which
was Exhibit 97. He had also brought the original report of the victim,
which was manually prepared. A copy of which was filed below Exhibit
P-98. He stated that, as per the said report, the victim was born at the
Aayurvedik Government Hospital, Nanded, and that the date of birth
was 09th November 2007. In the deposition, he also mentioned his
father’s and mother’s names, as well as his registration number, 16170.
The birth certificate below Exhibit 57 was shown to him, and he stated
that its contents were as per the original record maintained by the
Municipal Corporation, which was with him on that day. He agreed
that he stated that Dr S. B. More issued the certificate. He identified
his Signature.
23. In the cross-examination, he admitted that he cannot say
whether the information given in the said form at Exhibit P-98 is
correct or not.
24. Exhibit P-98, which is the birth report, reveals the name of
the victim, gender, name of father as well as mother, place of birth and
her date of birth as 09th November 2007.
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25. In this background, the learned Advocate for the accused
submitted that the age of the child was not proved beyond a
reasonable doubt, and according to him, the mother has not deposed
the date of birth but only stated that the victim was 14 years and 2
months old at the time of the incident. He further submitted that if
Exhibit P-98 is perused, and it would reveal that the child’s name is in
a different handwriting. According to him, the victim was not a child
under the Act of 2012. He submitted that the testimony of PW-10 is of
no importance, since PW-10, in his cross-examination, categorically
stated that he cannot say whether the information given in the form at
Exhibit P-98 is correct or not. He therefore stated that just because a
document is produced and exhibited, it does not mean that its contents
are proved. He submitted that the admissibility of the document is one
thing, and the explanation is another.
26. Per contra Ms. Ghanekar, learned APP, submitted that there
is absolutely no dispute regarding the date of birth since not only the
mother but also PW-10 Medical Officer has proved the same. The
prosecution has proved the birth certificate which was duly exhibited.
In contrast, the PW-10 has categorically stated that he has produced
the birth certificate on record, which was supported by the original
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document.
27. Since the mother has deposed that the victim was 14 years
and 2 months at the time of the incident, and she has produced the
birth certificate, which is further corroborated by the testimony of PW-
10, I conclude that the prosecution has rightly proved that the victim
was a child under the Act of 2012.
28. This takes me to the point as to whether the accused has
committed forcible sexual penetrative intercourse upon the victim. In
this regard, the testimony of PW-2 is required to be taken into
consideration.
29. PW-2 is the victim of a crime who has stated that at the
time of the incident, she was studying in 8th std. and was 15 years old,
and previously she was residing at Kandhar. According to PW-2, on 20th
January 2022 at about 06.00 pm, she went to eat panipuri, when the
accused arrived in a car, asked her to sit, and stated that both would
flee and perform the marriage. The victim sat in the car, which was
taken to a particular village and then to the city of Aurangabad. The
distance between the village and Aurangabad was covered by a
motorcycle owned by the accused’s maternal aunt’s daughter. She
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stated that from Aurangabad, they went to Ahmadabad by travel bus,
where the accused hired a room, and on 23th January 2022 at night,
he had physical relations with her by force.
30. PW-2, the victim, has also stated that the accused had told
her that he would marry her soon. On 24th January 2022 at about
10.00 pm, again, the accused had a physical relationship with the
victim by force, saying that he would marry her. According to her, on
25th January 2022, the police came there and took them to
Bhagyanagar Police Station. She deposed that her statement was
recorded under Section 164 of Cr.P.C., which was marked as Exhibit
62, and her clothes were also seized. She was subjected to a medical
examination. This witness has admitted that the accused was residing
in the same area where the father of the victim used to teach in a
school. She further admitted that there were several houses of the
relatives of the victim in the area where the accused was residing. She
also admitted that the accused was working as a driver with her
Maternal aunt. She stated that she was aware that the accused was
married and had one daughter.
31. She further admitted that the area where she went to eat
the Panipuri was busy and in the centre of the city.
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32. She admitted that she has not disclosed to anybody, right
from leaving the city, and again on her return, about anything. She
volunteered that the accused had blackmailed her and told her that he
would kill the parents of the victim. It is necessary to mention that the
version regarding blackmailing and threats is an omission that was put
to the said witness and proved by the Investigating Officer. She also
admitted that police had asked her to depose in court, as she had
deposed before the police, and accordingly, she deposed.
33. The mother of the victim, who was examined as PW-1, had
stated in her testimony that the victim left the house, saying that she
was going to eat panipuri. Since she did not return home, she started
searching for her, but she was not found. Hence, she went to the police
station and lodged a missing report, as shown below Exhibit 55., based
on which the offence under Section 363 of IPC was initially registered.
She submitted that, after visiting her house, the police conducted the
panchanama. She stated that the brother of the accused informed her
sister’s son on the phone that the accused had kidnapped the victim
and taken her to Ahmedabad to perform the marriage. The said
information was supplied to the police. Her brother and cousin brother,
went to the police in Ahmadabad. On 26 th January 2022, they brought
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the victim and the accused to the Bhagyanagar Police Station. When
PW-1 enquired with the victim, the victim disclosed that the accused
took her, saying that he would marry her and thereafter performed
sexual intercourse with her.
34. PW-3 is Dr Gajanan, who in the year 2020 was serving at
the Government Medical College, Nanded. He stated that the victim
was referred for medical examination on 27th January 2022. He then
obtained the consent of the mother of the victim, noted the
identification marks of the victim, recorded the history and medically
examined the victim. During the medical examination, he could not
notice any external injury. On internal examination, he found old
hymen tears in positions 3, 4, 10, and 11. He collected the samples of
vaginal swab, blood, nail clipping and pubic hairs of the victim and
handed them over to the LPC. According to the said witness, all the
examination findings were consistent with the sexual intercourse.
However, the final opinion was kept pending until the FSL report was
received. He proved the medical report, which was below Exhibit 64.
He admitted that a hymen tear heals within 12 hours of its tearing.
During cross-examination, he admitted that he did not conduct any
tests to ascertain the victim’s age. He further admitted that there was
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no evidence of the use of force.
35. It is in this background that the prosecutrix has submitted
that the prosecution has proved the offence of rape and penetrative
sexual assault. In contrast, the counsel for the appellant has argued
that the victim’s testimony is not at all reliable, as there were several
opportunities for her to raise a hue and cry when she was travelling
from the village to Aurangabad and then from Aurangabad to
Ahmadabad, where they stayed. He further stated that if the testimony
is reviewed holistically, it would reveal that the victim was a
consenting party. In fact, they were residing as husband and wife in
Ahmadabad.
36. He submitted that, considering the aforesaid aspect, he is
already acquitted by the Trial Court for the commission of offences
punishable under Sections 363 and 366-A of IPC. According to him,
since he is already acquitted of the said offences and the prosecution
does not challenge the acquittal, the same evidence would be of no
help to the prosecution. He submitted that, admittedly, the Nanded
police had visited Ahmadabad on 24th January 2022. At that time, the
victim had narrated that she was subjected to forcible penetrative
sexual assault, but surprisingly, her medical examination was
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conducted on 27th January 2022. He thus submitted that the delay in
medically examining the victim was deliberate. He submitted that, in
fact, the medical evidence would reveal that there was no physical
relationship, as no external marks were found on the body. as cross-
examination, the medical officer has categorically admitted that a
hymen tear can heal within 12 hours of its occurrence. Learned
Counsel for the appellant thus submitted that the evidence of the
victim tendered by the prosecution is not clinching or reliable.
According to him, his appeal is liable to be allowed on the ground of
non-examination of the material evidence. He submitted that none of
the persons from the place from which the victim had accompanied
were examined. Further, the landlord of the room in which the victim
and the accused were residing at Ahmadabad was also not examined,
which clearly shows the genesis of the crime is suppressed by the
prosecution. He accordingly prayed for acquittal.
37. Per contra Ms. Ghanekar, learned APP for the respondent –
State submitted that the version of the victim, who was just 14 years
and 02 months old, inspires confidence, and her evidence is cogent
and reliable. There was absolutely no reason for the false implication
and version advanced in the statement recorded under section 313 of
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Cr.P.C., that it was due to her uncle’s nonpayment of the appellant’s
salary; he left the job, and that was the reason for the false implication
is, in fact, a fragile defence. Learned APP submitted that the reasons
advanced by the accused, that there was a quarrel between the parents
of the victim, and that the victim requested the accused to flee, are
also not convincing. She submitted that, the foundational facts were
proved by prosecution, therefor presumption under Sections 29 and 30
of the Act of 2012, would attract, which was not rebutted by the
accused either by way of cross-examination or by putting on a stand
while recording his statement under Section 313 of Cr.P.C. or by the
production of any witness.
38. Mr. Surayawanshi, learned Advocate for the victim, not
only supported the contention of the prosecution but also stated that
this is a classic case wherein the provision of the Act 2012, more
particularly section 5(l), which is ignored. According to him, as the
prosecution has proved that the victim’s date of birth was 09 th
November 2007 and, as such, the victim was 14 years 02 months old
on the date of the incident, the Trial Court should have awarded the
punishment of 20 years. In contrast, the Trial Court has just imposed
seven year sentence of imprisonment. He submitted that the
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punishment awarded is contrary to the provisions of the Act of 2012.
He, thus, submitted that his appeal for imposing statutory minimum
sentence be allowed.
39. I have given my thoughtful consideration to the arguments
advanced by the respective counsels and also gone through the record
of the case.
40. Discussion made (supra) would reveal that at the time of
commission of the offence, the victim was a child and was 14 years
and 02 months old only. The witnesses’ testimony is particular, she
stated that the accused took her on a motorcycle from the village to
Aurangabad, and from Aurangabad to Ahmadabad by bus. Victim
stated that on 23rd and 24th of January, 2022, she was subjected to
forcible penetrative sexual assault under the pretext of marriage.
41. It is necessary to mention here that the defence case is that
the accused was married and had one daughter. The accused was 24
years of age at the time of the incident. Thus, it is crystal clear from
the evidence that the accused had committed forcible sexual
intercourse. There is no closeness of age of accused and victim. Even if
the argument advanced by the defence is assumed to be correct that
the victim was a consenting party, it is a well-settled principle of law
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that the consent of the minor victim is, in fact, no consent in the eyes
of the law.
42. The medical evidence also supports the case of the
prosecution. Though no external injuries were found, an old hymen
tear was present. Even the slightest of penetration would constitute the
offence under Section 375 of IPC and under the provisions of the Act
of 2012. The medical report also corroborates the testimony of the
victim.
43. At this stage, it is necessary to mention here that Sections
29 and 30 of the Act of 2012 speak about raising a presumption.
Section 29 of the Act of 2012 provides that when a person is
prosecuted for the commission of an offence under Sections 3, 5, 7 of
the Act of 2012, the Court shall presume that such a person has
committed the offence unless the contrary is proved. Section 30 of the
Act of 2012 provides that for any offence under the Act that requires a
culpable mental state on the part of the accused, the Special Court
shall presume the existence of such a mental state. Still, it shall be a
defence for the accused to prove the fact that he had no such mental
state with respect to the act charged as an offence in that prosecution.
‘Culpable mental state’ includes intention, motive, knowledge of a fact
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and the belief, in, or reason to believe, a fact.
44. If the record of the case is perused, it would reveal that the
applicant was charged and convicted for the commission of offences
punishable under Section 6 of the Act of 2012. The prosecution has
proved the foundational facts and thus presumption under Sections 29
and 30 of the Act of 2012 had triggered. It was then for the accused to
rebut the presumption, either by cross-examination, by answering the
question under 313 of Cr.P.C., or by entering the witness box.
Admittedly, same has not been done in the present case. In the
aforesaid background, it can be said that the accused has not
discharged the burden on him. However, the prosecution has
discharged the initial burden by proving the foundational facts. Thus, I
conclude that the prosecution has proved the case beyond the
reasonable doubt that the accused has committed the offence of
aggravated penetrative sexual assault since the victim was subjected to
forcible penetrative sexual assault repeatedly. The conviction was
rightly awarded under Section 376 (2)(n) of IPC and Section 5(l)
punishable under Section 6 of the Act of 2012. The question regarding
imposition of statutory minimum sentence is discussed in further part
of the judgment, more particularly while dealing in an appeal against
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a acquittal, but same shall not be taken to mean that the statutory
sentence is imposed while entertaining an appeal under Section 372 of
code of criminal procedure.
45. The victim has preferred Criminal Appeal No.740 of 2024
challenging the said judgment with the following prayers. The appeal
is preferred under Section 372 of Cr.P.C., and the prayers made are as
follows :
A) The Criminal Appeal may kindly be allowed.
B) The record and proceedings kindly be called for.
C) This Hon’ble Court may be pleased to quash and set
aside the impugned judgment and order passed by
the learned Special Judge POCSO Nanded in Special
Case No.26 of 2022, dated 20 th June 2024 to the
extent of acquittal of the accused under Sections 363
and 366-A of the Indian Penal Code, 1860 and also
awarded the sentence to the accused as per the
provisions of Section 6 of the Protection of Children
from Sexual Offences Act 2012 as well as Section
376(2)(n) of the Indian Penal Code.
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46. At this stage, it is necessary to deal with question of
acquittal of the accused under provisions of section 363 and 366A of
Indian penal code. The law regarding interference in the judgment of
acquittal is crystal clear. The Hon’ble Apex Court has stated that when
there are two views possible, the view which leans in a favour of the
accused is required to be taken. It has further observed that the
presumption of innocence gets strengthen when the accused is
acquitted by the Trial Court. The Hon’ble Apex Court has further stated
that there are no restrictions in appeal against acquittal for
interference, if ultimately it comes to notice that the appreciation of
evidence was perverse or illegal. In the aforesaid background, if the
testimony of the victim/PW2 is taken into consideration, it would
reveal that that on the day of incident, she had been to eat Panipuri at
a particular place by informing to her mother, at which time the
accused came there with a car and asked her to sit in a car. Thereafter,
accused stated to her that they would flee away and perform the
marriage. The victim then sat in a car and went away with the
accused. The Trial Court, in its judgment, more particularly in para 20
has dealt with the aspect of applicability of Sections 363 and 366-A at
length. Suffice it to say that the said finding are based on proper
appreciation of evidence and law, and therefore requires no
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interference.
47. Now comes the question of awarding punishment under
Section 376(2)(n) of IPC and Section 5(l), punishable under Section 6
of the Act of 2012. Section 376(2)(n) of IPC punishes the accused,
who committed rape repeatedly on the same woman and further state
that the said offence shall be punished with rigorous imprisonment for
a term which shall not be less than ten years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life, and shall also be liable to fine.
48. So far as Section 5(l) punishable under Section 6 of the Act
of 2012 is concerned, Section 6 prescribes punishment for aggravated
penetrative sexual assault. It says that whoever commits aggravated
penetrative sexual assault shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but
which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of the natural life of that person, and
shall also be liable to fine, or with death.
49. Section 6 of the Act of 2012 was amended, which came
into force with effect from 16th August 2019. Before it, the punishment
prescribed was rigorous imprisonment of not less than ten years, which
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may extend to imprisonment for life, and also made the offender liable
to a fine.
50. In the present case, the offence was committed on 20 th
January 2022, and therefore, the old provision of Section 6 of the Act
of 2012 would not be applicable. The sentence imposed in the present
case is seven years for the commission of the offence, under section 6
of the Act of 2012 and Section 376 of IPC, which is less than the
statutory minimum prescribed.
51. The learned counsel for the accused contended that in an
appeal, under the provisions of Section 372 of Cr.P.C., at the instance
of the victim, an appeal against the conviction preferred by the
accused, the sentence cannot be enhanced. He submitted that the
Court has awarded a sentence of seven years for the commission of an
offence punishable under Section 6 of the Act of 2012 as well as
Section 376(2)(n) of IPC. Though there is statutory punishment which
is more than what is awarded, still the powers under Sections 372 and
386 of Cr.P.C. cannot be exercised to enhance the sentence.
52. He submitted that this Court, acting as a Single Bench, will
not have jurisdiction, and under section 372 of the Code of Criminal
Procedure, it would lie before the Honble Division Bench.
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53. According to the roster, Criminal Appeal against conviction
as well as connected appeal against acquittal are assigned to this
Court, but, since there was a doubt in the mind of the counsel for the
accused, this Court vide its order dated 05 th February 2026, has called
upon the Registrar (Judicial) to verify whether this appeal would lie
before the Single Bench or Division Bench.
54. The Registrar (Judicial) has submitted his report dated 05th
February 2026 and has stated that the sentence passed in the present
appeal against conviction is of seven years and in his opinion, the
appeal would lie before the Single Bench. Even the learned APP has
stated that the appeal would not be maintainable but a revision, which
can be filed to enhance the sentence. The contention of both the
counsels for the appellant and the learned APP is that since awarding
the statutory minimum sentence would be an “enhancement”, the
power under Sections 372 and 386 of Cr.P.C. cannot be exercised by
this Court. To buttress her contention, Learned APP has relied upon the
judgment of this Court in the case of Anand Singh Vs. The State of
Maharashtra1. She accordingly submits that it would be a revision that
can be preferred for the enhancement of the sentence and not an
1 Criminal Appeal No.467 of 2012 dated 10th June 2022.
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appeal.
55. Mr Jaiswal, learned counsel for the accused, has relied
upon the law laid down by the Hon’ble Apex Court in the case of
Sachin Vs. The State of Maharashtra 2, to buttress his contention that,
Section 372 of Cr.P.C. prescribes only three contingencies under which
the appeal can be preferred; the first is the accused’s acquittal; the
second, conviction for a lesser offence; and the third, inadequate
compensation. He thus contends that there is absolutely nothing in
Section 372 of Cr.P.C. that permits the victim to prefer an appeal
praying for “enhancement.”
56. I have pondered over the issue and have given thoughtful
consideration to the arguments advanced. To deal with the aforesaid
contention, it is required to see the difference between “enhancement
of sentence” and “imposition of minimum statutory punishment.”
“Enhancement” is a statutorily mandated increase to an
offender’s sentence range because of a specific factor in
the commission of the crime.
“Enhancement” is an additional term of imprisonment
added to the base term for a particular offence.
"Enhancements" are not offences; they are
2 2025 Live Law (SC) 592
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punishments.
For imposing an enhanced sentence, the court has
discretion, which can be called “enhancement choice”.
Enhancement choice, then, will require stating the
reasons for imposing the enhanced sentence, but the
Court cannot award less than the mandated
punishment. Then comes discretion to impose the
sentence which can be called as “imposition choice”,
which means that though court has a choice to award
the sentence, but not less than what the legislature has
prescribed.
“Minimum statutory sentence”, means the base limit is
fixed by the statute, below which the sentence cannot
be awarded.
“Minimum statutory sentence” would be automatic,
once the guilt is proved.
“Minimum statutory sentence”, fails to give any
discretion to the Court to award lesser sentence.
It will also have to be considered that the object
behind imposition of minimum statutory sentence is
providing uniformity and consistency while awarding
punishment. The said sentence is mandatory in nature
and sometimes act as a strong deterrent for serious
offences. Thus the judicial discretion is removed for
imposing a sentence less than mandated by the law.
In fact, if the statutory minimum sentence is not
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imposed by the trial court and lesser sentence than
statutory minimum is imposed, then corrective steps
will have to be taken in an appeal and therefore it
cannot be called as an enhancement of the sentence.”
57. It is not disputed by the respective counsels at all that not
only Section 376(2)(n) of IPC, but also Section 6 prescribed the
minimum statutory sentence. Section 376(2)(n) of IPC mandates that
the sentence shall not be less than ten years, whereas Section 6 of the
Act of 2012 doesn’t permit the Court to award a sentence of less than
twenty years, if the offence under Section 5 of the Act of 2012 is
proved.
58. Both the Sections, i.e. Section 376(2)(n) of IPC and
Section 6 of the Act of 2012, though prescribe the statutory minimum
punishment, also give discretion to the Court to award a higher
sentence, which may extend to life imprisonment or with death.
59. It is in this background that the intention of the legislature
will have to be seen. Keeping in mind the mandate of Section 6 of the
Act of 2012 and Section 376(2)(n) of IPC enhancement would mean
extending the length of sentence from twenty years to life
imprisonment or with death when conviction is under Section 6 of the
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Act of 2012 and from ten years to life imprisonment when conviction
is under Section 376(2)(n) of IPC.
60. Imposing a statutory minimum sentence , if not imposed by
the Trial Court would in no manner thus amount to enhancement of
sentence in the true sense. The accused may draw an inference that
due to the imposition of a statutory minimum punishment, he would
be required to undergo a longer period of sentence, but that cannot be
called an “enhancement of the sentence” in the true sense.
61. There is one more reason for it. Section 386 of Cr.P.C., if
looked into, would reveal that it speaks about the power of the
Appellate Court. So far as powers which are required to be exercised in
an appeal from conviction, the Appellate Court can exercise its power
in the following manner:-
“a) Reverse the finding and sentence and acquit or
discharge the accused, or order him to be re-tried by
a Court of competent jurisdiction subordinate to such
Appellate Court or committed for trial, or
b) Alter the finding, maintaining the sentence, or
c) With or without altering the finding, alter the nature
or the extent, or the nature and extent, of the
sentence, but not to enhance the same.”
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62. Thus, what the Appellate Court can also do while
entertaining an appeal from the conviction is alter the nature or the
extent, or the nature and the extent, of the sentence. To put it simply,
the Appellate Court can convert rigorous imprisonment into simple
imprisonment and vice versa, and award the just punishment. The
enhancement stated in Section 386 of Cr.P.C. would only mean that the
length of the sentence is increased from a minimum sentence to
maximum sentence, if not imposed by the Trial Court.
63. Now, coming to what factors are required to be taken into
consideration while imposing the sentence upon the convict by the
court, it is necessary to mention that while dealing with the question
of enhancing the sentence, the Appellant Court will have to test the
reasoning adopted and factors which are taken into consideration by
the Trial Court while awarding the sentence. The Trial Court can
impose the sentence upon the accused as per its discretion only when
it is permissible by the mandate of law. If the legislature has fixed the
boundaries of the Trial Court’s discretion, neither the Trial Court nor
the Appellant Court can exceed the boundaries.
64. Section 28 of Cr.P.C. is also one of the provisions which can
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be looked into. Section 28 speaks about the sentences which High
Courts and Sessions Judges may pass. The same is reproduced as
under :
“28. Sentences which High Courts and Sessions Judges
may pass. –
(1) A High Court may pass any sentence authorised by
law.
(2) A Sessions Judge or Additional Sessions Judge may
pass any sentence authorised by law; but any
sentence of death passed by any such Judge shall be
subject to confirmation by the High Court.
(3) An Assistant Sessions Judge may pass any sentence
authorised by law except a sentence of death or of
imprisonment for life or of imprisonment for a term
exceeding ten years.”
65. The opening words of the said sentence are the Court may
pass any sentence authorised by law. It further says that the Sessions
Judge or the Additional Sessions Judge may pass any sentence
authorised by law. An Assistant Sessions Judge may pass any sentence
authorised by law. Thus, the Code, though it gives the Court power to
award the sentence, imposes a rider that the sentence must be
awarded which is authorised by law.
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66. The provision of Section 354 of Cr.P.C. is also required to
be looked into. Section 354 speaks about the language and contents of
the judgment. The said provision is reproduced hereinbelow.:
“354. Language and contents of judgment.–
(1) Except as otherwise expressly provided by this Code,
every judgment referred to in section 353,–
(a) shall be written in the language of the
Court;
(b) shall contain the point or points for
determination, the decision thereon and
the reasons for the decision;
(c) shall specify the offence (if any) of which,
and the section of the Indian Penal Code
(45 of 1860) or other law under which, the
accused is convicted, and the punishment
to which he is sentenced;
(d) If it be a judgment of acquittal, it shall
state the offence of which the accused is
acquitted and direct that he be set at
liberty.
(2) When the conviction is under the Indian Penal Code
(45 of 1860), and it is doubtful under which of two
sections, or under which of two parts of the same
section, of that Code the offence falls, the Court shall
distinctly express the same, and pass judgment in theShrikant Malani Page 32 of 46
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alternative.
(3) When the conviction is for an offence punishable
with death or, in the alternative, with imprisonment
for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence
awarded, and, in the case of a sentence of death, the
special reasons for such sentence.
(4) When the conviction is for an offence punishable
with imprisonment for a term of one year or more,
but the Court imposes a sentence of imprisonment
for a term of less than three months, it shall record
its reasons for awarding such sentence, unless the
sentence is one of imprisonment till the rising of the
Court or unless the case was tried summarily under
the provisions of this Code.
(5) When any person is sentenced to death, the sentence
shall direct that he be hanged by the neck till he is
dead.
(6) Every order under section 117 or sub-section (2) of
section 138 and every final order made under section
125, section 145 or section 147 shall contain the
point or points for determination, the decision
thereon and the reasons for the decision.”
67. Sub-section 3 of Section 354 of Cr.P.C. says that when the
conviction is for an offence punishable with death or, in the
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alternative, with imprisonment for life or imprisonment for a term of
years, the judgment shall state the reasons for the sentence awarded,
and, in the case of a sentence of death, the special reasons for such
sentence.
68. Sub-section 4 of Section 354 of Cr.P.C. says that when the
conviction is for an offence punishable with imprisonment for a term
of one year or more, but the Court imposes a sentence of
imprisonment for a term of less than three months, it shall record its
reasons for awarding such a sentence.
69. Thus, before awarding the sentence, not in a case when the
statutory minimum limit is fixed, the Court is required to hear the
accused and record the reason.
70. This takes me to one more Section, so that the controversy
involved can be decided in the proper perspective, and the said Section
is Section 235 of Cr.P.C. Section 235 of Cr.P.C. reads as under :
“235. Judgment of acquittal or conviction.–
(1) After hearing arguments and points of law (if any),
the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he
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proceeds in accordance with the provisions of section
360, hear the accused on the questions of sentence,
and then pass sentence on him according to law.”
71. Sub-section 2 of Section 235 of Cr.P.C. provides that the
Court before imposing the sentence, is required to hear the accused
and then pass sentence on him according to law.
72. In this background, it can be said that what the Code
mandates is giving the reasons while imposing the punishment, and
passing the sentence in accordance with the law.
73. Therefore, what the law prescribes, so far as the present
case is concerned, is awarding of minimum statutory punishment of
twenty years for conviction under Section 6 of the Act of 2012 and the
minimum statutory punishment of ten years when the offence is under
Section 376(2)(n) of IPC. Thus, it cannot be said that if the Appellant
Court awards the statutory minimum sentence, it would amount to an
enhancement of the sentence. What the Appellant Court would be
doing is only awarding the base sentence prescribed by law.
74. The aspect can be seen from one more angle. The
Protection of Children from Sexual Offences Act, 2012 was enacted
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with a particular aim and object to protect children from offences of
sexual assault, sexual harassment and pornography and provide for the
establishment of Special Courts for the trial of such offences and for
matters connected therewith or incidental thereto. Section 6 of the act
of 2012, specifically states that whoever commits aggravated
penetrative sexual intercourse shall be punished with rigourous
imprisonment for a term which shall not be less than 20 years, but
which may extent to imprisonment for life…………”. Thus the
negative wording in the section clearly shows that awarding of
sentence of 20 years is mandatory and less than it would be against
the provision of law.
75. Further Section 42 of the Act of 2012 speaks about
alternate punishment, which reads as follows:
“42. Alternate punishment.–Where an act or omission
constitutes an offence punishable under this Act and
also under sections 166A, 354A, 354B, 354C, 354D,
370, 370A, 375, 376, [376A, 376AB, 376B, 376C,
376D, 376DA, 376DB], [376E, Section 509 of the
Indian Penal Code or section 67B of the Information
Technology Act, 2000 (21 of 2000)], then,
notwithstanding anything contained in any law for the
time being in force, the offender found guilty of suchShrikant Malani Page 36 of 46
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offence shall be liable to punishment only under this
Act or under the Indian Penal Code as provides for
punishment which is greater in degree.”
76. If the aforesaid provision is perused, it would reveal that
whenever the accused is convicted for more than one offence, the
punishment which is greater in degree is required to be awarded.
Thus, Section 42 of the Act of 2012 was enacted with the particular
object that, when the crime is against a child, a higher degree of
punishment is required to be awarded.
77. In the present case, though the higher degree of
punishment, more particularly, minimum statutory punishment is of
twenty years under Section 6 of the Act of 2012 and ten years under
Section 376(2)(n) of IPC, the Trial Court has awarded the sentence of
seven years. If the said part of the judgment is allowed to stand, it
would defeat the mandate of the Act of 2012.
78. Even provision of Section 42-A of the Act of 2012 would
be helpful. Section 42A of the Act of 2012 is reproduced hereinbelow :
“42A. Act not in derogation of any other law.–The
provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law for theShrikant Malani Page 37 of 46
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time being in force and, in case of any inconsistency,
the provisions of this Act shall have overriding effect on
the provisions of any such law to the extent of the
inconsistency.”
79. The aforesaid section shows that in case of derogation
between two provisions, the provisions in the Act of 2012 will have
overriding effect. Further provisions are required to be read in addition
to and not in derogation of the provisions of any other law. Thus, a
holistic reading of Sections 42, 42A of the Act of 2012 and Sections
386 and 28, as also Section 354 of Cr.P.C., would clearly suggest that
the punishment is required to be awarded, which is “in accordance
with law.”
80. There is one more reason for disturbing the length of the
sentence awarded by the Trial Court. In the case of Mohd Hashim Vs.
The State of U.P. and Others3, the following observations made would
be relevant.
“15. The three-Judge bench, while adverting to the
concept of “minimum sentence”, relied on the
observations made in Bahubali (supra), which were
reproduced hereinabove, and opined that :
“9. The above observation also clearly shows that
3 (2017) 2 SCC 198
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where there is a statute that bars the exercise of
judicial discretion in the matter of the award of
sentence, the Probation of Offenders Act will
have no application or relevance. As Rule 126-
P(2)(ii) of the DI Rules manifestly bars the
exercise of judicial discretion in awarding
punishment or in releasing an offender on
probation in lieu of sentencing him by lying
down the minimum sentence of imprisonment,
it has prevail over the aforesaid provision of the
Probation of Offenders Act, 1958, in view of
Section 43 of the Defence of India Act 1962,
which is later than Probation of Offenders Act
and as an overriding effect.”
81. Thus, it can be seen that awarding a lesser sentence than
the statutory minimum prescribed was absolutely illegal.
82. Hon’ble Apex Court in the case of State of Madhya Pradesh
Vs. Vikram Das4 has dealt with the aforesaid aspect, particularly
paragraphs No. 8. Paragraph No.8 is reproduced as under :
“8. In view of the aforesaid judgments that where a
minimum sentence is provided for, the Court cannot
impose less than the minimum sentence. It is also
held that provisions of Article 142 of the4 (2019) 4 SCC 125
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Constitution cannot be restored to impose a
sentence less than the minimum sentence.”
83. Thus, even while exercising powers under Article 142 of
the Constitution of India,less than minimum statutory sentence cannot
be imposed.
84. The judgment in the case of State through S.P., New Delhi,
vs. Ratan Lal Arora5 is also on a similar line. Paragraph No.12, which
reads as follows:
“12. That apart, Sections 7 and 13 of the Act provide for
minimum sentences of six months and one year,
respectively, in addition to the maximum sentence,
as well as the imposition of a fine. Section 28 further
stipulates that the provisions of the Act shall be in
addition to and not in derogation of any other law
for the time being in force. In the case of Supdet.,
Central Excise V. Bahubali, while dealing with Rule
126-P(2)(ii) of the Defence of India Rules which
prescribed a minimum sentence and Section 43 of
the Defence of India Act, 1962 almost similar to the
purport enshrined in Section 28 of the Act in the
context of a claim for granting relief under the
Probation Act, this Court observed that in cases
where a specific enactment enacted after the
Probation Act prescribes a minimum sentence of
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imprisonment, the provisions of the Probation Act
cannot be invoked if the special Act contains any
provision to enforce the same without reference to
any other Act containing a provision, in derogation
of the special enactment, there is no scope for
extending the benefit of the Probation Act to the
accused. Unlike the provisions contained in Section
5(2) proviso of the old Act providing for imposition
of a sentence lesser than the minimum sentence of
one year therein for any “special reasons” to be
recorded in writing, the Act did not carry any such
power to enable the Court concerned to show any
leniency below the minimum sentence stipulated.
Consequently, the learned Single Judge in the High
Court committed a grave error of law in extending
the benefit of probation even under the Code. At the
same time we may observe that though the reasons
assigned by the High Court to extend the benefits of
probation may not be relevant, proper or special
reasons for going below the minimum sentence
prescribed – which in any event in wholly
impermissible, as held supra, we take them into
account to confine the sentence of imprisonment to
the minimum of six months under Section 7 and
minimum of one year under Section 13(2) of the Act,
both the sentences to run concurrently. So far as the
levy of fine in addition made by the learned trialShrikant Malani Page 41 of 46
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Judge with a default clause on two separate counts is
concerned, they shall remain unaffected and are
hereby confirmed.”
85. The sum and substance of the aforesaid judgment is that
awarding a sentence less than the minimum statutory sentence is not
permissible.
86. Thus, in the aforesaid background, I am of the view that
what has been sought is the awarding minimum statutory sentence
under Sections 6 of the Act of 2012 and 376(2)(n) of IPC and not the
enhancement of the sentence. The increase in the length of sentence
may be a consequence of awarding the statutory minimum sentence,
but it cannot be called an enhancement of the sentence. Thus
exercising of powers under section 386 of code of criminal procedure,
in the facts and circumstances of the case, would in fact be in the
interest of justice.
87. It is necessary to mention here that, as per the provision of
Section 6 of the Act of 2012 and Section 376(2)(n) of IPC, the Court is
legally bound to award the minimum punishment of twenty years and
ten years respectively, and no discretion is given to the Court to award
less than that.
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88. In the aforesaid background it would be crystal clear that a
omission to award a statutory minimum sentence would not be
permissible in law.
89. It is further necessary to mention here that when the
appeal is preferred for the enhancement of the sentence, what is
challenged is the discretion of the Trial Court and the manner in which
it is exercised. In this case, as already stated, there is no discretion
given to the Court for awarding a sentence less than twenty years in
the case of commission of an offence under Section 6 of the Act of
2012 and a sentence not less than ten years under Section 376(2)(n)
of IPC.
90. In that view of the matter and considering the provisions of
the Protection of Children from Sexual Offences Act, 2012, this Court
has no other option but to award the minimum statutory sentence.
Since the accused was well aware about pendency of the appeal under
section 372 of code of criminal procedure, in which he has argued
through Advocate Jaiswal, and which is heard along with his appeal
for conviction, he cannot even say that he was not heard before
imposing minimum statutory sentence. Even otherwise, once minimum
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statutory sentence is prescribed and accused is held guilty, hearing on
the point of sentence for awarding minimum sentence prescribed for
that particular offence, maybe an empty formality.
91. Accordingly, the questions are answered as under;
A) Trial Court has rightly convicted but has not
imposed statutory minimum sentence on the
accused.
B) While exercising power under section 386 of the
Code of Criminal Procedure in an appeal against
conviction, the minimum statutory sentence can be
imposed, and such imposition will not amount to an
enhancement of sentence.
92. Thus, the following order is passed.
ORDER
A) Criminal Appeal No.567 of 2024 is dismissed.
Consequently, the conviction awarded to the
appellant is maintained and while exercising power
under Section 386 of Cr.P.C. statutory minimum
sentence is imposed for commission of offence is
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awarded to the accused i.e., of twenty years for
commission of offence punishable under Section 6 of
the Act of 2012 and punishment of sentence of ten
years (minimum statutory sentence) for commission
of offence punishable under Section 376(2)(n) of
IPC.
B) Appeal against acquittal bearing Criminal Appeal
No.740 of 2024 is dismissed so far as challenging
acquittal under Sections 363 and 366-A of IPC. As
regards prayer regarding imposition of statutory
minimum sentence is concerned, same does not
survive in view of the clause (A) of the order.
C) In view of Section 42 of the Act of 2012, the accused
shall undergo the imprisonment which is greater in
degree i.e. twenty years for rigorous imprisonment.
D) Consequently, the judgment delivered by Special
Judge POCSO Nanded in Special Case No.26 of 2022,
dated 20th June 2024, to the extent of the acquittal of
the accused under Sections 363 and 366-A of IPC is
hereby maintained.
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93. At this stage, it is necessary to state that Mr. Rupesh
Jaiswal, learned counsel, who was appointed by the Court to represent
the accused, argued the case and has relied upon the judgments. He
has tried his best to convince this Court that the accused has not
committed the crime, and also, even on the point of sentencing. His
fees be quantified at ₹ 12,000/-.
94. Mr. Rupesh Jaiswal, learned counsel further submits that
the said amount be directed to be paid to the Advocates’ Association
Bar Library, High Court, Aurangabad; hence, no further orders are
required.
95. Order accordingly.
( RAJNISH R. VYAS, J. )
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