[Cites 16, Cited by 0]

Bombay High Court

Saddam Rahim Shaikh vs The State Of Maharashtra And Another on 2 December, 2025

2025:BHC-AUG:33122
                                                          Criminal Appeal No.468-2023.odt

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                          CRIMINAL APPEAL NO.468 OF 2023

          Saddam Rahim Shaikh,
          Age: 29 years, Mesion,
          R/o. Malikpura, Parli (V),
          Tq. Parli (V), Dist. Beed.                      .... Appellant

                       VERSUS

          1. The State of Maharashtra,
             Through City Police Station,
             Parli (V) Dist. Beed.

          2. XYZ
                                                          ..... Respondents



          Appearance :

          Mr. H. I. Pathan, Advocate for the Appellant.

          Mr. A. D. Wange, APP for Respondent No.1 - State

          Mr. S. A. P. Quadri, Advocate for Respondent No.2
          __________________________________________________

                                  CORAM           : NEERAJ P. DHOTE, J.
                                  Reserved On     : 20th November, 2025
                                  Pronounced On : 2nd December, 2025

          JUDGMENT:

1. This Appeal under Section 374 (2) of the Code of

Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C') is

directed against the Judgment and Order dated 01/06/2023,

passed by the Special Judge, Taluka Ambajogai, District Beed

Criminal Appeal No.468-2023.odt

(hereinafter referred to as 'the learned Trial Court'), in Special

(POCSO) Case No.23/2018, convicting the Appellant for the

offence punishable under Sections 376 - AB (2) (f) (j) (k) of

the Indian Penal Code, 1860 (hereinafter referred to as 'IPC')

and sentencing him to suffer Rigorous Imprisonment for twenty

(20) years and fine of Rs.10,000/-, in default to pay the fine, to

suffer further Rigorous Imprisonment for a period of six (06)

months.

2. The Prosecution's case, in brief, is that, the Appellant

is the uncle of the Victim / Child. On 27/08/2018, the

Appellant raped the Victim, when she had come to his house in

the afternoon. The Victim went crying to her mother and

narrated the incident. The Victim was taken to the Doctor. On

01/09/2018, the Victim's mother lodged the report with the

Parli City Police Station, District Beed and Crime bearing

No.147/2018 came to be registered against the Appellant for

the offence punishable under Section 376-A and 376-B of IPC

and for the offence punishable under Sections 5(n) and 6 of the

of the Protection of Children from Sexual Offences Act, 2012

(hereinafter referred to as 'the POCSO Act'). The investigation

was done. The Appellant came to be arrested. The clothes of

the Victim and that of the Appellant came to be seized. The

Criminal Appeal No.468-2023.odt

statements of the Victim and the witnesses were recorded. The

seized Articles were referred to the Chemical Analyzer. On

completion of the Investigation, the Appellant came to be

charge-sheeted.

2.1. On committal, the learned Trial Court framed

the Charge against the Appellant for the offences punishable

under Sections 376 (2) (f), 376 (2) (i) (j) (k) of IPC and for the

offence punishable under Section 6 of the POCSO Act, below

Exhibit - 6, to which, the Appellant pleaded not guilty and

claimed to be tried. To prove the Charge, the Prosecution

examined the following witnesses:-

(i) The Victim's mother as PW - 1 below Exhibit - 13;

(ii) The Victim as PW - 2 below Exhibit - 14 ;

(iii) The Spot Panch as PW - 3 below Exhibit - 23 ;

(iv) The Medical Officer as PW - 4 below Exhibit - 26;

(v) The Panch for seizure of the clothes of the Appellant as PW - 5 below Exhibit - 28 ;

(vi) The Investigating Officer as PW - 6 below Exhibit -

35 ;

2.2. In the evidence of these witnesses, the relevant

documents, such as, the copy of Birth Certificate, Report,

Panchnamas, Medical Papers and CA Reports are brought on

Criminal Appeal No.468-2023.odt

record. After filing of the evidence closure pursis by the

Prosecution, the statements of the Appellant came to be

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

stated that, he was falsely implicated, as he was opposing the

partition in the house property. The learned Trial Court passed

the impugned Judgment and Order convicting and sentencing

the Appellant as above.

3. It is submitted by the learned Advocate for the

Appellant that, the evidence of the Victim and that of her

mother was material improvement from their previous

statements. The place of incident, according to the Victim and

her mother, was the matrimonial house of the Victim's mother,

which was occupied by other members of the family, and

therefore, it was highly improbable that, the offence of rape

would be committed by the Appellant on the Child in the house.

It is the specific defence of the Appellant that, the Victim's

mother wanted the partition in the house property, which was

opposed by the Appellant, and therefore, he was falsely

implicated. The medical evidence though indicate injury on the

private part of the Victim, the evidence on record show that,

the said injury was due to scratching by the Victim. The

Criminal Appeal No.468-2023.odt

Investigating Officer did not record the statement of the other

family members of the Appellant. There is no corroboration to

the evidence of the Victim. The learned Trial Court did not take

into consideration many vital aspects and convicted the

Appellant without there being sufficient evidence to prove the

Charge. The Appeal be allowed.

4. It is submitted by the learned APP that, the Victim

deposed of the act done by the Appellant on her and the

Victim's mother corroborate her testimony. The defence of alibi

is not proved by the Appellant by leading the evidence. The

delay in lodging the report with the Police is explained by the

Informant, as she was asked by her husband not to report the

incident to the Police, as it would result in disrepute to their

family. The medical evidence supports the Victim's testimony.

On the basis of evidence available on record, the learned Trial

Court has rightly convicted the Appellant and the Appeal be

dismissed.

5. It is submitted by the learned Advocate for

Respondent No.2 - Victim that, the age of Victim was proved,

the delay in lodging the report was explained and the defence

is falsified. The learned Trial Court properly appreciated the

Criminal Appeal No.468-2023.odt

evidence on record and passed the impugned Judgment and

Order and the Appeal be dismissed.

6. For the Charge under the provisions of the POCSO

Act, it is necessary for the Prosecution to establish that, the

Victim was a Child as defined under Section 2(d) of the POCSO

Act. The evidence of PW - 1, who is admittedly mother of the

Victim show that, the Victim was born on 12/02/2014. The PW

- 1 is the biological mother of the Victim. The evidence of PW

- 1 further show that, the copy of Birth Certificate showing the

said date of birth of the Victim is brought on record at Exhibit -

17. The cross-examination done on behalf of the Appellant

show that, the said date of birth of the Victim was not

challenged and there is no challenge to the Prosecution's case

that, the Victim was the Child. Considering these aspects and

the evidence available on record, the Prosecution proved that,

the Victim was the Child at the relevant time.

7. The Victim is examined as PW - 2. Her age at the

time of evidence is shown as 9 years. Her evidence show that,

the Appellant was her paternal uncle. On the day of incident,

except the Appellant, no one was present at house. At that

time, the Appellant removed her clothes and also removed his

Criminal Appeal No.468-2023.odt

clothes and inserted his penis in her vagina and committed

rape. When she raised alarm due to pain, the Appellant

gagged her mouth. Thereafter, she returned to the house of

her maternal grand-mother, where her mother was present.

She disclosed the incident to her mother and the grand-mother.

Her mother and her maternal uncle took her to the Doctor. The

Doctor advised them to go to the Police, and accordingly, they

went to the Police Station. The Police made inquiry with her

and referred her for medical examination. She identified the

Appellant. The Victim was cross-examined by the Appellant.

The cross-examination show that, her said evidence in respect

of the Appellant committing rape on her by removing his

clothes and her clothes in the house was an improvement from

the previous statement recorded by the Police and by the

learned Magistrate. The said improvements are proved by the

defence in the evidence of PW - 6 - Investigating Officer, who

recorded her statement. The said improvements / omissions

goes to the root of the Prosecution's case.

8. The evidence of PW - 1 is that, the Victim was her

daughter. On 27/08/2018, the Victim went to her matrimonial

house in the same town between 03:00 p.m. to 05:00 p.m.

Criminal Appeal No.468-2023.odt

When the Victim returned home, she was crying and

complaining of pain at her private part. She saw the private

part and noticed bleeding and swelling on the Victim's private

part. On the next day, she took the Victim to the Doctor in the

afternoon and the Doctor informed that, the Victim was

subjected to sexual assault. When she inquired with the

Victim, the Victim disclosed the incident of rape by the

Appellant on her. The cross-examination of PW - 1 show that,

her said evidence that, she found Victim scared, noticed

swelling on the private part of the Victim, and the Victim

informed her that, the Appellant raped her by inserting his

penis into her vagina, that she narrated the incident to her

family members, were omissions / improvements from her

previous statement given to the Police and to the Magistrate.

The said improvements / omissions are proved by the Appellant

in the evidence of PW - 6 - Investigating Officer.

9. Admittedly, the Prosecution did not examine the

Magistrate, who recorded the statements of the Victim and her

mother, and therefore, the Appellant had no opportunity to

prove the omissions / improvements in the statement under

Section 164 of Cr.P.C.

Criminal Appeal No.468-2023.odt

10. The medical evidence in the nature of testimony of

PW - 4, who was the Medical Officer attached to the Sub

District Hospital, Parli, show that, the Victim was brought to

the Hospital on 01/09/2018 with her guardian. The Victim

gave the history that, the Appellant inserted something in her

private parts and kissed her private parts and cheek. No

external injuries were found at the time of general

examination. On local examination of the Victim, he found

abrasion on Labia Majora and contusion on Labia Minora and

found Laceration on Fourtchette and Introitus and found

Laceration Hymen at 10 and 7 'o' clock position. He collected

the samples of the Victim and found some injuries suggestive

of sexual assault. The cross-examination show that, the

Column No.15(a)(vii) of the Medico-legal Examination Report

did not mention the name of narrator. Though the Medical

Officer denied that, the injuries found on the Victim were

possible due to scratch by nails, he volunteered that, the

abrasion was possible due to scratching by nails and contusion

was not possible by scratching of nail.

11. Coming back to the testimony of the Victim, it has

come in her cross-examination that, in case of itching due to

sweating, she rubbed with the help of nails. On the date of

Criminal Appeal No.468-2023.odt

incident, she rubbed her private parts by nails and it was

bleeding and at that time, she returned home crying as it was

paining. This evidence of the Victim, coupled with the above-

discussed evidence of the Medical Officer that, the abrasion was

possible due to scratching, gives rise to two possibilities for the

injury on the private part of the Victim. Even accepting the

medical evidence as it is, the material omissions /

improvements in the evidence of the Victim and that of her

mother gives a big blow to the Prosecution. If the said

omissions / improvements are removed from their evidence,

nothing remains in their evidence to prove the Charge.

12. The defence of the Appellant is that, he was

opposing the partition in the house, which the Victim's mother

wanted, and therefore, he was falsely implicated. The evidence

of the Victim's mother show that, there was no partition of their

matrimonial home and she was residing on rent with her

husband. The testimony of the Victim show that, her mother

was staying with her parents prior to the birth of her brother

and she did not return to the house of her paternal grand-

mother, i.e. the matrimonial house of the Victim's mother. It

has come in the evidence of the Victim that, her mother and

Criminal Appeal No.468-2023.odt

the Appellant were not on talking terms since prior to the

incident. This indicate that, the relations between the Victim's

mother and the Appellant were not cordial. Suggestion is given

by the Appellant to the Victim's mother that, she took

disadvantage of the injury caused to the private part of the

Victim due to scratching and filed the false case.

13. The evidence on record show that, the house where

the Appellant was residing was in the residential area. It is

nowhere the case of Prosecution that, the house of incident was

occupied only by the Appellant. The evidence of the Victim

show that, the place of incident was four rooms, wherein her

grand-mother, paternal aunt, uncle - Rizwan and deceased

uncle - Murad were residing. The uncle Murad died two years

prior to her testimony and he used to stay in the hall of the

house. It has further come in the testimony of the Victim that,

her grand-parents used to stay with the Murad. As her grand-

parents were old, they used to always stay in the house. The

evidence of the Victim further show that, the wife of her uncle

- Rizwan was the housewife and available in the house and

uncle - Rizwan was having five (05) children. The evidence of

the Victim show that, her uncle - Rizwan and the Appellant

Criminal Appeal No.468-2023.odt

were doing the work of construction of temple of Rama at

Dharmapuri and the said work was going two years prior from

the date of filing the case. Her uncle - Rizwan and the

Appellant used to go for work at 10:00 a.m., and their work

used to end by 06:00 p.m. The Victim's evidence further show

that, on the day of incident, she visited the house of her father,

i.e. grand-parents and she was called by Aayesha Didi and she

went to the said house, where her grand-parents, paternal

aunt, i.e. wife of Rizwan, cousins by name Aayesha, Saniya,

Rehan and Murad uncle were present and at that time, Rizwan

uncle and the Appellant returned home in the evening after the

work at Dharmapuri. With this vital evidence of the Victim, her

evidence that, she was raped by the Appellant is shattered and

required to be seen with doubt.

14. The evidence of PW - 1 - Victim's mother show that,

her parents house was one lane after the house of her in-laws,

i.e. matrimonial house. Their houses were surrounded by

many houses. She admitted that, though she felt that, the

Victim should be taken immediately to the Hospital after noting

the injury and bleeding on her private parts, she did not take

the Victim to the Hospital on the same day. This is really

strange. Her testimony show that, the town of Parli, where

Criminal Appeal No.468-2023.odt

they were staying and where the incident as deposed by the

Victim took place, was having 50 to 75 Hospitals, including

Hospitals for children and women and the Government Hospital

of Parli was situated at the distance of 30 minutes by walk from

her house, and the Tapadia Hospital, where she took treatment

during the pendency, was 20 minutes by walk from her house.

Despite this, not taking the Victim to the Doctor immediately,

raises doubt on the Prosecution's case of rape.

15. The above-discussed evidence, upon which the

Prosecution's case rests, do not establish the Charge beyond

doubt. Due to the material omissions / improvements in the

testimony of the Victim and her mother, the medical evidence,

which is the opinion evidence, cannot by itself form the basis to

hold that, the Charge is proved. The above-discussed evidence

of the Victim and that of her mother is not free from doubt and

improbabilities. The relations between the Victim's mother and

the Appellant were not cordial. The Victim being the Child of 5

to 6 years at the time of lodging the report, the possibility of

her tutoring cannot be ruled out. Further evidence of the

Victim that, the house of the Appellant was occupied by so

many members and the Appellant returned in the evening on

Criminal Appeal No.468-2023.odt

the day of incident, gives a severe blow to the Prosecution's

case in respect of rape by the Appellant on the Victim. There is

no need to discuss the other evidence, which is that of the

panch witnesses and the Investigating Officer. As the evidence

on record is neither concrete nor inspire confidence and is

doubtful, there is no question of presumption under Sections 29

and 30 of the POCSO Act coming into operation. The re-

appreciation of the evidence available on record as noted above

leads to the only conclusion that, the Appellant is entitled for

acquittal. Thus, the impugned Judgment and Order requires

interference and the Appeal succeeds. Hence, the following

order:

ORDER

[I] The Appeal is allowed.

[II] The conviction and sentence recorded by the learned Trial Court against the Appellant, in Special (POCSO) Case No.23/2018 by Judgment and Order dated 01/06/2023, is quashed and set aside.