The appellant challenged his conviction for offences under IPC and POCSO Act. The High Court analyzed the evidence, focusing on the victim's testimony and age proof. The Court found that the victim voluntarily went with the appellant, lacking the element of taking or enticing without consent required for kidnapping under Section 361 IPC. Thus, the conviction under Section 376-AB of IPC and u/s 4(2) of POCSO was quashed. The convictions under other sections were upheld as the evidence supported them. The sentences were ordered to run concurrently. The appeal was partly allowed.
Criminal law-- Indian Penal Code, 1860-- Sections 376AB, 363, 354-A(2)-- Protection of children from Sexual offences Act, 2012 (POCSO)-- Sections 4(2) and 8 -- Rape on minor victim girl-- Conviction u/s 376AB, 363 and 354-A(2) of IPC and U/s 4(2) and 8 of POCSO-- Appeal filed by convicted accused -- Prosecutrix herself stated in her cross examination that when she was sleeping near the mother of appellant, the appellant woke up her and took her to room and tried to do physical relation with her forcibly-- No enough evidence to say that the victim/prosecutrix was subjected to forcible sexual intercourse-- No offence u/s 4(2) of POCSO made out, since there is neither penetration, insertion or manipulation or applying mouth-- Section 354-A of IPC referred--Sexual harassment-- Offence proved u/s 354-A(2) of IPC and u/s 8 of POCSO-- Conviction u/s 363, 354-A(2) of IPC maintained and also conviction maintained u/s 8 of POCSO, However acquittal from charges u/s 376-AB of IPC and u/s 4(2) of POCSO-- Appeal Partly allowed
Para-- 34, 35, 36, 38
The High Court partly allowed the appeal -- The conviction under Section 363 IPC was set aside and the appellant was acquitted of that offence -- The convictions under Section 376-AB IPC, Section 354-A (2) IPC, Section 4 (2) POCSO Act, and Section 8 POCSO Act were upheld -- The sentences were ordered to run concurrently as per the trial court's order
Citation: 2026 LawText (BOM) (01) 26
Case Number: Criminal Appeal No. 112 of 2024 with Criminal Application No. 2509 of 2025
Date of Decision: 2026-01-12
Case Title: The Issue of consideration was whether the conviction of the appellant under various sections of IPC and POCSO Act was justified based on the evidence on record
Before Judge: Rajnish R. Vyas J.
Equivalent Citations: 2026:BHC-AUG:1106
Advocate(s): Mr. Ghanekar Nilesh S., Ms. Ashlesha S. Deshmukh, Mr. Vishal A. Chavan
Appellant: Sagar Gautam Sable
Respondent: The State of Maharashtra, XYZ
Nature of Litigation: Criminal appeal against conviction for offences under IPC and POCSO Act
Remedy Sought: Appellant sought to challenge and set aside the conviction awarded by the Special Judge (POCSO), Aurangabad
Filing Reason: The appellant was convicted and sentenced for multiple offences, leading to the appeal on grounds of evidence insufficiency
Previous Decisions: Special Judge (POCSO), Aurangabad, convicted the appellant on 12.12.2023 in Special Case (POCSO) No. 383/2021
Issues: Whether the conviction under Section 363 IPC was justified given the evidence of kidnapping Whether the age of the victim was properly established for offences under POCSO Act Whether the testimonies of prosecution witnesses were reliable and consistent
Submissions/Arguments: The defence argued that the victim voluntarily left her house, negating kidnapping under Section 361 IPC The prosecution relied on the victim's testimony and birth certificate to prove age and offences
Ratio Decidendi: For a conviction under Section 363 IPC, the prosecution must prove kidnapping as defined in Section 361 IPC, which requires taking or enticing a minor without the guardian's consent -- The victim's voluntary accompaniment, as per her testimony, negates this element, leading to acquittal for kidnapping -- The age of the victim was established beyond doubt through birth certificate and testimony, supporting convictions under POCSO Act -- The evidence for other offences was sufficient to sustain convictions
Judgment Excerpts: The Court held that 'if the testimony of PW-1 is perused, she had categorically deposed that... she voluntarily accompanied the appellant' The Court emphasized that 'no suggestion was given denying the date of birth' of the victim, establishing her as a minor
Procedural History: First Information Report lodged on 11.10.2021 under Section 363 IPC -- Investigation conducted, accused arrested on 14.10.2021 -- Chargesheet filed, trial conducted in Special Case (POCSO) No. 383/2021 -- Conviction by Special Judge (POCSO) on 12.12.2023 -- Appeal filed in High Court, heard on 12.01.2026
