Santosh Maroti Bhandare vs State of Maharashtra

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2026 Supreme(Bom) 485

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Rajnish R. Vyas, J.
Santosh Maroti Bhandare - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 567 of 2024, Criminal Appeal No. 740 of 2024
Decided On : 06-02-2026

Important Points

Appellate court imposing statutory minimum sentence below which trial court erred is not enhancement but mandatory correction; valid under CrPC Section 386 for POCSO Section 6 and IPC 376(2)(n) convictions on child victim.

Subject

Criminal Law - Sexual Offences against Children

Act Referred

INDIAN PENAL CODE: S.363, S.366(a), S.376(2)(n)
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT: S.29, S.3, S.30, S.372, S.5, S.6, S.7
CRIMINAL PROCEDURE CODE: S.164, S.313, S.372, S.386

Headnote

(A) Protection of Children from Sexual Offences Act, 2012 - Sections 3, 5(l), 6, 29, 30, 42, 42A - Indian Penal Code, 1860 - Sections 375, 376(2)(n), 363, 366A - Code of Criminal Procedure, 1973 - Sections 28, 235, 354, 372, 386 - Aggravated penetrative sexual assault on child - Conviction under Section 5(l) r/w Section 6 and Section 376(2)(n) upheld - Trial Court awarded 7 years RI, less than statutory minimum of 20 years under Section 6 and 10 years under Section 376(2)(n) - Appellate Court can impose statutory minimum sentence under Section 386 without it amounting to enhancement, as it corrects illegality of awarding below mandated floor - Consent of minor invalid - Age proved by birth certificate corroborated by records - Victim testimony reliable, supported by medical evidence of old hymen tears consistent with intercourse - Presumptions under Sections 29, 30 triggered and unrebutted - Acquittal under Sections 363, 366A maintained as based on proper appreciation. (Paras 2, 27, 40-44, 56-61, 86-91)

(B) Sentencing - Statutory minimum vs enhancement - Minimum sentence mandatory, automatic on proof of guilt; no judicial discretion below floor - Enhancement increases beyond minimum to maximum; imposing minimum corrects Trial Court error, not enhancement - Appellate power under Section 386 includes altering extent of sentence to lawful minimum. (Paras 56-63)

Facts of the case:
Victim, aged 14 years 2 months, lured by accused promising marriage while eating street food, taken by car then motorcycle to another city, bus to distant place, room hired where forcible penetrative sexual assaults committed on two consecutive nights - Police rescued pair, FIR registered, investigation confirmed age via birth certificate, medical exam showed old hymen tears, forensic reports - Trial Court convicted under relevant sections, sentenced 7 years RI and fine, acquitted of kidnapping offences - Accused appealed conviction; victim appealed for minimum sentence.

Findings of Court:
Prosecution proved foundational facts beyond doubt; accused failed to rebut presumptions - Greater punishment under Section 42 applies - Accused to undergo 20 years rigorous imprisonment.

Issues: (1) Validity of conviction and sentence by Trial Court? (2) Does imposing statutory minimum by Appellate Court amount to enhancement under Section 386?

Ratio Decidendi: Statutory minimum sentence imposition by appellate court is mandatory correction to lawful floor, not discretionary enhancement; distinguishes increase within range from base mandated punishment - Victim under 18 incapable of consent; repeated assaults on child attract aggravated provisions with irrebuttable presumptions absent effective defence.

Result: Appeal against conviction dismissed; conviction maintained; sentence modified to statutory minimum of 20 years RI under Section 6; appeal for sentence allowed in part; acquittal on other counts upheld.

Advocates Appeared:
For the Appellant :Mr. Rupesh A. Jaiswal, Advocate, Mr. G. G. Suryawanshi, Advocate
For the Respondent:Mr. G. G. Suryawanshi, Advocate, Mr. Rupesh A. Jaiswal, Advocate, Ms. M. N. Ghanekar, APP

Table of Content
1. appeals challenge conviction and sentence enhancement. (Para 1 , 2 , 3 , 4 , 5 , 6)
2. prosecution case of abduction and assaults. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15)
3. rape and penetrative assault definitions. (Para 16 , 17 , 18 , 19)
4. victim's minority proven by birth records. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27)
5. victim testimony and medical evidence corroborate assault. (Para 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35)
6. arguments on consent, reliability, presumptions. (Para 36 , 37 , 38)
7. guilt proved beyond doubt; presumptions apply. (Para 39 , 40 , 41 , 42 , 43 , 44)
8. acquittal under kidnapping sections upheld. (Para 45 , 46 , 47)
9. statutory minimum sentences prescribed. (Para 48 , 49 , 50)
10. debate on appellate enhancement powers. (Para 51 , 52 , 53 , 54 , 55)
11. minimum sentence not enhancement. (Para 56 , 57 , 58 , 59 , 60 , 61 , 62)
12. appellate court enforces legal minimum. (Para 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73)
13. pocso overrides for child protection. (Para 74 , 75 , 76 , 77 , 78 , 79)
14. precedents bar sub-minimum sentences. (Para 80 , 81 , 82 , 83 , 84 , 85 , 86)
15. minimum sentences imposed; appeals dismissed. (Para 87 , 88 , 89 , 90 , 91 , 92)
16. counsel fees quantified and directed. (Para 93 , 94 , 95)

JUDGMENT :

RAJNISH R. VYAS, J.

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 20^th June 2024 challenging his conviction for commission of offence punishable under Sections 376 (2)(n) of the Indian Penal 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 Rs. 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 . No separate sentence was awarded for the commission of an offence punishable under Section 376(2)(n) of .

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 the incident, i.e., 20^th 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 23^rd January 2022 and on 24^th January 2022, the accused committed forcible sexual intercourse under the pretext of performing the marriage.

8. On 25^th January 2022, the Police Officials from Nanded visited the Ahmadabad i.e. the place of occurrence and brought the victim and the accused to Bha