High Court
Case Details
2025:BHC-AUG:20792 This Order is Speaking to Minutes order of order dated //
Legal Reasoning
Cri. Appln. 2677/241IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD910 CRIMINAL APPLICATION NO. 2677 OF 2024 IN CRI. APEAL/940/2024WITHCRIMINAL APPEAL NO. 940 OF 2024GANESH @ BHARAT ASHOK MALI (BHIL)VERSUSTHE STATE OF MAHARASHTRA AND ANOTHER...Advocate for Applicant : Mr. Shaikh Tousif Saifuddin a/w. Mr. Samir ShaikhAPP for Respondent/State : Mrs. A.S. Mantri Advocate for Respondent 2 : Ms. Devika Patil (appointed)...CORAM :ARUN R. PEDNEKER, J.Dated:August 06, 2025PER COURT :-1.Heard the learned counsel for the applicant, the learned APP forrespondent/State and Mrs. Devika Patil, learned counsel appointed forrespondent No. 2/victim.2.Applicant/appellant is convicted by the learned Special Judge(POCSO) & Additional Sessions Judge, Dhule vide judgment and order dated22.2.2024 passed in Special Case No. 49/2016. The relevant part ofoperative order is as under :-“O R D E R1)Accused Ganesh @ Bharat Ashok Mali (Bhil) isconvicted vide Section 235(2) of the Code of CriminalProcedure for the offences punishable under section 376(2)and 420 of the Indian Penal Code and Section 4 and 6 of TheProtection of Children From Sexual Offences Act, 2012.2)He is sentenced to suffer Rigorous Imprisonment forten years and to pay fine of Rs.1,00,000/- (Rs. One Lakhonly) in respect of offence punishable under Section 6 ofProtection of Children From Sexual Offences Act, 2012. Indefault of payment of fine, he is further sentenced to sufferRigorous Imprisonment for one year. This Order is Speaking to Minutes order of order dated // Cri. Appln. 2677/2423)He is sentenced to suffer Rigorous Imprisonment forfive years and to pay fine of Rs.10,000/- (Rs. Ten Thousandonly). In default of payment of fine, he is further sentencedto suffer Rigorous Imprisonment for two months in respectof offence punishable under Section 420 of Indian PenalCode.4)Since sentence is awarded under Section 6 of POCSOAct, separate sentence for the offence punishable underSection 376(2) of IPC and Section 4 of POSCO Act, 2012 isnot awarded in view of Section 42 of POCSO Act.5)…….”3.This Court by order dated 30.07.2025 has recorded the submissionsof the learned counsel for the applicant as under :-“2.The learned counsel for the applicant has pointed out the schoolleaving certificate of the victim which is at page No. 65 wherein herdate of birth is mentioned as 19.11.1999. The learned counsel submitsthat the said document could not have been relied upon by the TrialCourt in absence of deposition of the person who has taken the entryin respect of date of birth of the victim. For that purpose, the learnedcounsel has relied upon para No. 14 of the judgment of the Hon’bleSupreme Court in the case Manak Chand alias Mani Vs. State ofHaryana reported in 2023 SCC OnLine SC 1397, which is as under :-“14.This Court in Birad Mal Singhvi V. Anand Purohit, 1988Supp SCC 604 had observed that the date of birth in the registerof a school would not have any evidentiary value without thetestimony of the person making the entry or the person who gavethe date of birth. “14. …The date of birth mentioned in the scholar’s registerhas no evidentiary value unless the person who made theentry or who gave the date of birth is examined. The entrycontained in the admission form or in the scholar’s registermust be shown to be made on the basis of information givenby the parents or a person having special knowledge aboutthe date of birth of the person concerned. If the entry in thescholar’s register regarding date of birth is made on thebasis of information given by parents, the entry would have This Order is Speaking to Minutes order of order dated // Cri. Appln. 2677/243evidentiary value but if it is given by a stranger or bysomeone else who had no special means of knowledge of thedate of birth, such an entry will have no evidentiary value.” 3.The learned counsel submits that in the present case,ossification test of the victim has been conducted and in terms of theossification test, the age of the victim is shown to be 18 year (-) oneyear or (+) one year. The learned counsel submits that in POCSO casethe age of the victim should be considered at higher side and fromthereafter two years margin of error has to be considered to determinethe age of the victim. For that purpose, the learned counsel has reliedupon the judgment of Delhi High Court in the case of Court on its OwnMotion Vs. State of NCT of Delhi reported in 2024 SCC OnLine Del4484, more particularly para No. 1 wherein questions of law areformulated and the answers given at para No. 46, as under :-“46. As an upshot of our foregoing discussion, theReference is answered as under: - (i) Whether in POCSO cases, the Court is required toconsider the lower side of the age estimation report, or theupper side of the age estimation report of a victim in caseswhere the age of the victim is proved through bone ageossification test? Ans: In such cases of sexual assault, wherever, thecourt is called upon to determine the age of victim based on‘bone age ossification report’, the upper age given in‘reference range’ be considered as age of the victim. (ii) Whether the principle of ‘margin of error’ is to beapplicable or not in cases under the POCSO Act where theage of a victim is to be proved through bone age ossificationtest.Ans: Yes. The margin of error of two years is furtherrequired to be applied.” 4.The learned APP as well as the learned counsel appointed forrespondent No. 2 opposed the application filed for suspension of substantiveby submitting that the incident in question happened 2 to 3 years prior tothe registration of the offence and at the relevant time the victim wasminor. The applicant failed to perform marriage with victim even after victim This Order is Speaking to Minutes order of order dated // Cri. Appln. 2677/244delivered the child and therefore, the case is registered against theapplicant for aforesaid offence.5.Considered the above submissions and perused record producedbefore this Court. In the deposition, PW 2 – Dr. Ramesh has stated thathistory is narrated by the victim that she was having affair with applicantfive years back and she had sexual intercourse with applicant prior to twoyears of 29.08.2016 when she was referred to medical examination.Ossification test in this case is conducted wherein doctor has opined thatthe age of the victim is 18 years (-) one year or (+) one year. As such, ageof the victim at the time of offence would be 18 years (-) one year or (+)one year. In terms of judgment of Delhi High Court in the case of Court onits Own Motion Vs. State of NCT of Delhi reported in 2024 SCC OnLine Del.4484, margin of error of two years is required to be applied. As such, at therelevant time, the victim is possibly major.6.Having considered the above aspects of the matter, it appears thatthe applicant is in jail from last 18 months and sentence of 10 years isimposed on the applicant by the trial Court. It is stated that fine amount isalready deposited by the applicant in trial Court. In view of the above, Ihold that applicant has arguable case on merits on the age of the victim.The appeal will take its own time. No purpose would be served by keepingthe applicant behind bars till the conclusion of the appeal. Hence,substantive sentence needs to be suspended.7.In view of the discussion made above, the application filed forsuspension of substantive sentence is allowed and disposed of. The abovesubstantive sentence imposed by the trial Court on the applicant issuspended. Applicant shall be released on bail on such terms and conditions This Order is Speaking to Minutes order of order dated // Cri. Appln. 2677/245which the trial Court may deem fit and proper.8.Mrs. Devika Patil, learned appointed counsel to represent the cause ofrespondent No. 2 shall be paid fees of Rs.10,000/- by the High Court LegalServices Sub-Committee, Aurangabad.9.Appeal is admitted. After admission, the learned APP waives serviceof notice for respondent/State and Mrs. Devika Patil, learned counsel waivesservice of notice for respondent No. 2.10.Call R. & P. ( ARUN R. PEDNEKER, J. )ssc/This order is corrected vide order dated 8.8.2025.