1 apeal641.2023.odt

I N THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL APPEAL NO.641/2023

Sheikh Rahman Yakub Sheikh,

Convict No.C-10814, Aged about 69 Yrs.,

R/o Usegaon (Neri), Tah. Chimur,

District Chandrapur, at Present District

Prison, Nagpur. ...Appellant

- Versus -

1.The State of Maharashtra,

through P.S.O. Durgapur,

District Chandrapur.

2.XYZ through her Mother

in Crime No.182/17 registered

in P.S.O. Durgapur, Tah. & Distt.

Chandrapur. ... Respondents

-----------------

Ms. Shilpa P. Giratkar (Giripunje), Advocate (appointed) for the

Appellant.

Ms. Sneha Dhote, A.P.P. for the Respondent No.1/State.

Ms. Seema P. Dhotre, Advocate (appointed) for the Respondent No.2.

----------------

CORAM: NEERAJ P. DHOTE, J.

DATE OF RESERVING THE JUDGMENT: 21.01.2026.

DATE OF PRONOUNCING THE JUDGMENT: 09.02.2026.

JUDGMENT

This is an Appeal under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short “Cr.P.C.”) against the judgment

and order dated 27.11.2021 passed by the learned Special Judge, 2026:BHC-NAG:2092

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Chandrapur in Special (POCSO) Case No.56/2017 convicting and

sentencing the Appellant as follows:-

“1] The accused Sheikh Rahman Yakub Sheikh, aged

about 63 years, R/o Usegaon (Neri), Tah. Chimur, Distt-

Chandrapur, At present Major Gate, Vaidyanagar,

Chandrapur, Tah. and Distt. Chandrapur, stands convicted

for the offences punishable under section 363 and section

376(2)(i) of the Indian Penal Code. He is also convicted

under section 5(1)(m) read with section 6 of the

Protection of Children from Sexual Offences Act, 2012

vide section 235(2) of the Code of Criminal Procedure.

The accused however, stands acquitted for the

offence punishable under section 376(2)(m) of the Indian

Penal Code and under sections 3(w)(i) and 3(2)(v) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989, vide Section 235(1) of the Code of

Criminal Procedure.

2]For the offence punishable under section 363 of

the Indian Penal Code he is sentenced to suffer rigorous

imprisonment for a period of 04 years and to pay a fine of

Rs.1,000/- (Rs. One Thousand only), in default of which

he shall undergo simple imprisonment for six months. For

the offences punishable under section 376(2)(i) of the

Indian Penal Code and under section 5(i)(m) read with

section 6 of the Protection of Children from Sexual

Offences Act, 2012 the accused is sentenced to suffer

rigorous imprisonment for a period of 14 years and to pay

a fine of Rs.2,000/- (Rs. Two Thousands only), in default

of which he shall undergo rigorous imprisonment for one

year.

3]Both the substantive sentences shall run

concurrently.

4] The seized property i.e. the clothes of the victim

and the accused being worthless be destroyed, after a

period of one year, if no notice is received from the

Hon'ble High Court regarding the pendency of any appeal.

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5] The accused has been in detention from

28.05.2017 till today. He shall be entitled to set-off for the

said period as stipulated under section 428 of Cr.P.C.

6) …..

7] …..

8) .….”

2.The prosecution’s case, as reveled from the police report, is as

under:-

a)The First Informant was residing at Vaidya Nagar, Chandrapur

with her family comprising husband and two daughters. On

27.05.2017 in the evening around 8:00 p.m. when she had gone to

the place of labour strike, her elder daughter came to her. When

she asked the elder daughter about the younger daughter (Victim),

the elder daughter told her that, she asked the Victim to go home.

Ten to fifteen minutes thereafter, it started raining and the Informant

and her elder daughter returned home. The Victim was not at home.

The Informant searched for her. During the search, she noticed the

Victim with one neighbouring lady around 8:00 p.m. The said lady

handed over the Victim to the Informant. The Informant noticed

blood on the pant of the Victim and she enquired the reason for the

same. The Victim informed her that, one person took her to one

shop for giving something to eat and thereafter took her to one place

where he put his finger in her vagina and anus and thereafter said

person brought her near the shop and left. The Informant went to

the police station with the Victim. As the Victim was not feeling

well, the police asked the Informant to take her to the hospital.

Thereafter the Informant lodged the report with Durgapur Tahsil

Police Station, District Chandrapur and Crime bearing

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No.0182/2017 came to be registered against an unknown person for

the offence punishable under Sections 376(2)(i), 376(2)(j) and

376(2)(m) of the Indian Penal Code, 1860 (for short “I.P.C.”) and for

the offence punishable under Section 6 of the Protection of Children

from Sexual Offences Act, 2012 (for short “POCSO Act”) and for the

offence punishable under Section 3(2)(v) and 3(1) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for

short “SCST Act”).

b)During the investigation, the spot-panchanama was drawn.

The clothes of the Victim came to be seized. The samples of the

Victim were drawn. The statement of the Victim was recorded. The

statement of the witnesses were recorded. The documents in respect

of the age of the Victim and the medical papers came to be seized.

The Appellant came to be arrested. The Appellant’s clothes were

seized. The samples of the Appellant came to be drawn. The seized

articles were sent to the Chemical Laboratory for examination. On

completion of the investigation, the Appellant came to be

chargesheeted.

c)The learned trial Court framed the Charge against the

Appellant for the offence punishable under Sections 363, 376(2)(i),

376(2)(m) of the I.P.C., for the offence punishable under Section 6 of

the POCSO Act and for the offence punishable under Sections

3(w)(i) and 3(2)(v) of the SCST Act, below Exh.122. The Appellant

pleaded not guilty and claimed to be tried. To prove the Charge, the

prosecution examined in all 16 witnesses and brought on record the

relevant documents. After the prosecution filed the evidence closure

pursis, the learned trial Court recorded the statement of the

Appellant under Section 313(1)(b) of the Cr.P.C. The Appellant

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pleaded not guilty and claimed to be tried. The Appellant

examined 2 defence witnesses. After hearing both the sides and

appreciating the evidence available on record, the learned trial Court

passed the impugned judgment and order convicting and sentencing

the Appellant as above.

3.Heard the learned Advocate for the Appellant, the learned

A.P.P. for the State and the learned Advocate for the Respondent

No.2. Scrutinized the evidence available on record.

4.It is submitted by the learned Advocate for the Appellant that,

the age of the Victim was not in dispute. The crime was registered

against an unknown person. The Appellant was falsely implicated.

Though the blood samples were drawn, there was no DNA report.

The Appellant examined 2 defence witnesses, in support of his

defence. As the identity of the Appellant was not established the

impugned judgment and order be quashed and set aside. In support

of her submissions, she cited the decisions in Sharad Birdhichand

Sarda V/s. State of Maharashtra (1984) 4 SCC 116, Krishan Kumar

Malik V/s. State of Haryana (2011) 7 SCC 130 and Sudam alias

Rahul Kaniram Jadhav V/s. State of Maharashtra (2011) 7 SCC 125.

5.It is submitted by the learned A.P.P. that, the prosecution

proved that, the Victim was the ‘child’ at the time of incident.

Nothing has come in the cross-examination of the Victim and that of

the mother of the Victim and other material witnesses so as to shake

the prosecution’s case. The suggestions put up by the defence were

denied. The Panchas for the clothes seizure were examined. The

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clothe of the Appellant was found stained with blood. The evidence

on record sufficiently proved the Charge. The defence evidence

could not create any dent in the prosecution’s evidence. The

evidence brought on record by the prosecution established the

Charge and the presumption under Section 29 of the POCSO Act

comes into play. The Appellant failed to rebut the presumption. No

interference was called for in the impugned judgment and order and

the Appeal be dismissed.

6.It is submitted by the learned Advocate for the Respondent

No.2 that, she adopts the submissions made by the learned A.P.P.

The Victim was hospitalized for 5 days. The evidence on record

proved the Charge beyond doubt and the Appeal be dismissed.

7.When the Charge is for the penal section under the POCSO

Act, it is necessary for the prosecution to establish that, the Victim

was the ‘child’ as defined under Section 2(d) of the POCSO Act i.e.

below 18 years of age. To prove the date of birth and age of the

Victim, the prosecution examined P.W.12 Prakash N. Ivnake who was

working in the department of Births and Deaths Registration,

Chandrapur, Municipal Council as the Head Clerk since 1999. He

brought the Record of birth with him. His evidence shows that, the

entry of Victim’s birth was at serial No.1163 and the date of birth

was recorded as 04.12.2011. The place of birth of the Victim was

Government Hospital, Chandrapur. The extract of the said register

was brought on record at Exh.86. He identified Exh.52 as the Birth

Certificate issued from his Department. Ignorance of this witness as

to on what basis the said entry was made and the said entry was not

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in his handwriting will not create any dent in his evidence as he

deposed on the basis of the record maintained by the public office

i.e. the Corporation. Nothing is brought on record so as to create any

doubt in respect of the said entry.

8.The mother of the Victim is examined as P.W.1. She deposed

that, the Victim’s date of birth was 04.12.2011. There is no challenge

in the cross-examination of this witness to the date of birth. Nothing

is brought by the Appellant in the evidence to show that, the date of

birth of the Victim was different than the date of birth entered in the

record of the Municipal Corporation and deposed by the mother of

the Victim. Further there is no dispute in respect of the date of birth

of the Victim. Undisputedly, the crime was registered on 28.05.2017

for the incident prior to it. Thus, the prosecution successfully proved

that, the Victim was the ‘child’ at the time of incident.

9.Undisputedly, the crime was registered against an unknown

person. It is needless to state that, when the crime is registered

against the unknown person, it is for the prosecution to establish the

identity of the accused as the perpetrator of crime. The

prosecution’s case largely rests on the testimony of P.W.2 Victim and

P.W. 3 the elder sister of the Victim. It is the case of prosecution that,

when Victim and her elder sister were playing, the Appellant took

the victim with him on the pretext of giving eatables and molested

her in the secluded area. The scrutiny of the testimony of the Victim

shows that, while she was playing with her elder sister and friends,

and she went near the shop of one Mohitkar, the Appellant who was

father of Tanvir, came to her and said that he will drop her to her

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mother and she accompanied him in the jungle near the school,

where the Appellant inserted his finger in her vagina and anus. The

said act resulted in the injury. Thereafter, the Appellant dropped

her near the shop of one Lalit. While she was proceeding towards

home, she met sister-in-law of Pinki. According to her, she disclosed

the incident to her mother and they went to the police station. Her

evidence shows that, her friend told that he was Tanvir’s father.

She identified the Appellant as Tanvir’s father. Her cross-examination

shows that, photo of Tanvir’s father i.e. the Appellant was shown to

her. To the question that, police told her that it was Tanvir’s father,

she responded in the affirmative and thereafter in the negative.

Though the evidence of the Victim shows that, she knew the

Appellant, the evidence of her mother who is examined as P.W.1 to

whom she met immediately after the incident shows that, the Victim

did not tell that the said person was the Appellant. She told her

mother that, one man committed the said act with her. If at all the

Appellant was known to the Victim, she would have disclosed his

identity to her mother.

10.The evidence of P.W.3 shows that, she was the elder sister of

the Victim. According to her, she was playing with the Victim and

other friends around 05:00 p.m. The Victim left their company by

saying that, she wanted to go to her mother and they both stopped

near the shop of one Manoj. From there the Victim proceeded by

saying that, she was going to her mother. The Appellant, who was

the Tanvir’s father, came near the shop and by holding the Victim’s

hand took her with him by saying that, he will drop the Victim to

their mother. Her evidence shows that, the Appellant took the

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Victim from near the shop of one Mohitkar. However, strangely, her

evidence shows that, when her mother asked where the Victim was,

she told that, the Victim was playing. Her evidence shows that,

Tanvir was her classmate and the Appellant used to come to the

school to drop him. Her evidence shows that, she knew the

Appellant. However, she did not disclose to her mother that, the

Appellant took the Victim with her. To the question in the cross-

examination that, when she went to the police station with her

father, the police took her aside and asked to tell where the Victim

had gone, she initially responded ‘yes’ and thereafter in the negative.

Though she replied to the question that, she did not see the

Appellant taking her sister by holding her hands in the affirmative,

she denied that, therefore, she did not tell the name of the Appellant

to her parents.

11.The evidence of P.W.3 elder sister of the Victim that, she

witnessed the Appellant taking the Victim with him gets falsified by

the testimony of P.W.1 who is the mother of Victim and that of P.W.3.

The mother’s evidence shows that, on 27.05.2017 she had gone in

the strike in front of the Major Gate. Around 06.45 p.m. her elder

daughter (P.W.3) came to her and asked whether the Victim came to

her. To that she answered in the negative and asked P.W.3 where was

the Victim and P.W.3 told her that, she asked her to go home from

the road. P.W.3 sat near her. Due to rain, they both went home. This

evidence of the mother clearly shows that, though she enquired with

P.W.3 about the Victim, P.W.3 did not disclose that, the Appellant took

her with him.

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12.The evidence of P.W.5 father of the Victim shows that, on the

date of incident he returned home around 07.00 p.m. At that time,

P.W.3, who was his elder daughter, was playing outside the shop of

Mohitkar. P.W.1 and P.W.3 had come home. He enquired with his

wife i.e. P.W.1 about the Victim. To that P.W.1 responded that, the

Victim must be playing outside. His evidence shows that, they went

in the search of Victim in the different directions. After half an hour,

he returned home. On his way towards home, he noticed the crowd

outside his house and saw the Victim with P.W.1. Victim’s clothes

were stained with blood. He asked the Victim as to what happened

and the Victim told him that, her stomach was paining and pointed

out towards her private part and told that, it was paining. His

neighbour Rama took the Victim and P.W.1 to the hospital. His

evidence shows that, he and P.W.3 went to the police station on

bicycle. The Victim and P.W.1 were not seen in the police station as

they had gone to the hospital. He asked P.W.3 to tell the truth as she

was also playing and to that, P.W.3 told him that, the Appellant took

the Victim with her. His evidence shows that, P.W.3 showed the

house of the Appellant to the police and the police called the

Appellant outside and P.W.3 pointed towards the Appellant and

police brought him to the police station. This evidence goes to show

that, neither the Victim nor P.W.3 disclosed about or against the

Appellant when he firstly met them. His evidence regarding asking

his elder daughter about the incident and she stated that, Tanvir’s

father took the Victim was an omission.

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13.The evidence of P.W.4 Savita V. Bawne, who was the resident of

the same village and neighbourer of the Victim, shows that, on

27.05.2017 in between 07.30 to 07.45 p.m. she noticed that, the

Victim girl was playing with her elder sister and other friends. While

she was returning home after having Panipuri near Mohitkar’s shop,

she noticed P.W.1 beating P.W.3. When she asked her the reason of

beating, P.W.1 told her that, P.W.3 came leaving the Victim. This goes

to show that, even at that point of time, it was not disclosed or

informed by P.W.3 that, the Appellant took the Victim with him. Her

further evidence shows that, after P.W.1 went home, she saw the

Victim running from near the shop of one Lalit and she came to her.

When she asked her where she had gone, the Victim was frightened

and crying and told her that, one uncle took her on the pretext of

giving chocolate.

14.The evidence of P.W.15 Sangita R. Kadam shows that, the

statement of the Victim’s mother i.e. P.W.1 below Exh.15 was

recorded in the hospital. She recorded the statement of P.W.3 on

27.05.2017 and again recorded her supplementary statement on

28.05.2017. Her evidence shows that, the statement of Victim was

recorded on 31.05.2017. Though the evidence of P.W.14 Sushilkumar

K. Nayak, the Investigating Officer, also shows that, he recorded the

Victim’s statement on 31.05.2017 after her discharge from the

hospital, the evidence of P.W.10 Dr. Anshuman V. Khobragade who

was the Medical Officer at the Government Medical College and

Hospital, Chandrapur and who examined the Victim on 27.05.2017

shows that, on examination of the Victim in the presence of P.W.1 the

Victim was found to be well oriented. However, there is no

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explanation for the delay in recording the statement of the Victim.

The evidence of P.W.14 Sushilkumar K. Nayak shows that, he

arrested the Appellant on 28.05.2017 at 07.33 a.m.

15.The evaluation of the above discussed evidence on record,

raises serious doubt about the involvement of the Appellant in the

crime. Though the crime was registered against an unknown person

and the Victim did not know the assailant, there was no prior

identification of the Appellant as the perpetrator of the crime by the

Victim except during the course of her substantive evidence. Though

her elder sister P.W.3 knew the Appellant, she remained altogether

silent when P.W.1 and P.W.5 (her parents) asked about the Victim.

Undisputedly, the incident was of the evening time. Even the

evidence of P.W.10 Dr. Anshuman V. Khobragade shows that, the

history given was that of sexual assault by unknown person. From

the evidence of the material witnesses, the presence of P.W.3 with the

Victim when the Victim was taken appears doubtful. Her silence and

asking P.W.1 mother about the Victim in the evening of the incident is

sufficient to demonstrate that, P.W.3 knew nothing as to with whom

the Victim went. On the facts and circumstances as discussed above

emanating from the evidence on record, the testimony of Victim and

P.W.3 cannot form the basis to establish that, the Appellant

committed the crime. The Appellant examined himself on oath and

his son as defence witness Nos.1 and 2, respectively. According to

them, they both went to work on the day of incident in the morning

and returned home by evening and the police came to their house in

the night and apprehended the Appellant. Though both of these

defence witnesses were cross-examined by the learned A.P.P. nothing

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has come on record to discard their testimony. The Appellant in the

cross-examination admitted that, the Victim’s elder sister (P.W.3)

knew him as she used to study in the same school in which his son

Tanvir was studying. Their evidence appears natural. Their

testimony cannot be discarded or ignored because they are the

witnesses examined by the defence. Though reference of some

shops have come in the testimony of P.W.1, P.W.2 Victim, P.W.3 and

P.W.4, the shop owners or the persons present in the shop at the

relevant point of time are not examined by the prosecution. As the

evidence of the prosecution falls short of establishing the identity of

the Appellant as the perpetrator of the crime, there is no reason to

draw the presumption under Section 29 of the POCSO Act. Even if

the presumption is raised, the Appellant has been successful in

rebutting the same by examining the defence witnesses. From the

above discussion of the evidence of material witnesses the

involvement of the Appellant in the crime is highly doubtful.

16.The other piece of evidence brought on record by the

prosecution is the blood stains on the shirt of the Appellant. The

evidence of P.W.11 Shivkumar N. Gawandar shows that, the shirt of

the Appellant was seized under the Panchanama below Exh.82. The

evidence of this witness goes to show that, it was not pursuant to the

provisions of Section 27 of the Indian Evidence Act, 1872. His

evidence further shows that, he did not enter the house of the

Appellant and the police brought the shirt from the house. There is

evidence of P.W.16 Amol N. Baviskar, Assistant Chemical Analyzer,

who analyzed the blood samples of the Appellant and that of the

Victim. His evidence shows that, the blood group of both of them

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was ‘B’. His evidence further shows that, he analyzed the blood on

the Victim’s undergarment, top and shirt of the Appellant and found

that the blood stains on the clothes were of blood group ‘B”.

Therefore, the blood stain on the shirt seized during the course of

investigation cannot be an incriminating circumstance.

17.The other evidence is that of the Spot-Panch, Panch for seizure

of the clothes of the Victim, Doctor who examined the Appellant and

that of the Police Officers. The evidence of P.W.13 Dr. Ulhas D.

Borkar, who examined the Appellant, shows that, he did not find any

injury on the private part of the Appellant. That would be

inconsequential as it is nowhere the case of the prosecution that, the

private part was inserted by the assailant in the private part of the

Victim.

18.Re-appreciation of the evidence available on record as

discussed above leads to the only conclusion that, the prosecution

though established the sexual assault on the Victim through the

prosecution witnesses corroborated by the medical evidence of

P.W.10 Dr. Anshuman V. Khobragade showing clear signs of sexual

assault, the evidence on record do not establish that the Appellant

was the perpetrator of crime. To say in other words, the identity of

the Appellant as the person who sexually assaulted the Victim is not

established. At the cost of repetition, the evidence available on

record goes to show that, P.W.3 elder sister did not witness the Victim

going with a person, the Victim stating of assault by unknown

person, reference of unknown person in the history given to the

Medical Officer, lodging of the report against an unknown person

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and no identification of the Appellant by the Victim during the

course of investigation to corroborate the identification in the

substantive evidence leads to the only conclusion that the Appellant

is entitled for acquittal. There cannot be any dispute that, after

going through the medical evidence, the act of sexual assault was

serious. However, it is not possible to convict the Appellant on the

basis of such evidence on record which do not conclusively prove his

identity as the culprit. The prosecution’s evidence falls short of

establishing the involvement of the Appellant in the crime. Thus, the

Appeal succeeds and following order is passed:-

ORDER

i)The Appeal is allowed.

ii)The conviction of the Appellant Sheikh Rahman Yakub Sheikh

for the offence punishable under Sections 363 and 376(2)(i) of the

I.P.C. and Section 6 of the POCSO Act is quashed and set aside.

iii)The Appellant Sheikh Rahman Yakub Sheikh is acquitted for

the offence punishable under Sections 363 and 376(2)(i) of the I.P.C.

and Section 6 of the POCSO Act.

iv)The Appellant is behind bars. He be released forthwith, if not

required in any other offence.

v)The record and proceedings be sent back to the learned trial

Court.

vi)The fees of the learned Advocate appointed for the Appellant

is quantified at Rs.10,000/-. Same be paid accordingly by the High

Court Legal Services Authority.

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vii)The fees of the learned Advocate appointed for the

Respondent No.2 is quantified at Rs.7,500/-. Same be paid

accordingly by the High Court Legal Services Authority.

(NEERAJ P. DHOTE, J.)

Tambaskar.