[Cites 21, Cited by 0]

Bombay High Court

Sheikh Rafique Sk Gulab vs State Of Mah., Thr. P.S.O. Ps Yavatmal ... on 4 December, 2025

2025:BHC-NAG:13479


                                                1                        apeal-772-2019.odt


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH AT NAGPUR


                             CRIMINAL APPEAL No. 772/2019


                      Sheikh Rafique Sk. Gulab,                 : APPELLANT
                      Aged about 25 years,
                      R/o Bendikipura, Bharat Nagar,
                      Tq. and District Yavatmal
                                                 Vs.
                      The State of Maharashtra,                 : RESPONDENT
                      Through Police Station Officer,
                      Police Station Yavatmal City,
                      Tq. and District Yavatmal


               Mr. Shyam R. Jaiswal, Advocate (Appointed) for the Appellant
               Mr. Amit Chutke, Adll.P.P. for the Respondent

                                       CORAM: NIVEDITA P. MEHTA, J.

               Date of reserving the judgment           :   01.12.2025
               Date of pronouncing the judgment         :   04.12.2025


               JUDGMENT :

The present appeal challenges the judgment and order dated

17.10.2019, passed by the learned Additional Sessions Judge-2,

Yavatmal, in Special (POCSO) Case No. 16/2016, whereby the

appellant/accused was convicted for offences under Sections 354

and 354-A of the Indian Penal Code (IPC) and under Section 8 of 2 apeal-772-2019.odt

the Protection of Children from Sexual Offences Act, 2012 (POCSO

Act).

2. The trial Court sentenced the appellant to undergo rigorous

imprisonment for one year for the offence under Section 354 of the

IPC and a fine of Rs. 200/-, in default, to undergo simple

imprisonment for 15 days. Under Sections 354-A of the IPC and 8 of

the POCSO Act, the appellant was sentenced to undergo rigorous

imprisonment for three years and a fine of Rs. 500/-, in default, to

undergo simple imprisonment for one month. The trial Court

directed that both sentences shall run concurrently.

3. Prosecution Case : The prosecution case, in brief, is that on

24.10.2015, at about 2:00 PM, the victim, a 13-year-old girl,

informed her maternal uncle that the previous day, i.e., 23.10.2015,

the appellant had visited her house while her parents were at work.

The appellant allegedly requested a glass of water and, while

receiving it, offered Rs. 50/- if she allowed him to engage in sexual

activity. The victim reportedly raised an alarm, upon which the

appellant left the house. On 24.10.2015, at about 10:30 AM, the

appellant allegedly repeated the act, holding the victim's right hand

and making the same proposition. The victim thereafter informed

her maternal uncle, who lodged the FIR.

3 apeal-772-2019.odt

4. Upon receipt of the complaint, the police registered an FIR,

conducted spot panchanama, recorded statements of witnesses,

collected documents, including the medical report, and ultimately

submitted a charge-sheet.

5. The trial Court framed charges under Sections 354 and 354-

A of the IPC and Section 8 of the POCSO Act. The appellant pleaded

not guilty and claimed trial. His defence, as discernible from cross-

examination of prosecution witnesses and his statement under

Section 313 Cr.P.C., was one of complete denial and false

implication.

6. The prosecution examined five witnesses: PW 1 - Victim at

Exh. 9, PW 2 - Informant at Exh. 15. PW 3 - Mother of the victim at

Exh. 14. PW 4 - Shaikh Yusuf Sk. Yakub, panch witness at Exh. 15.

PW 5 - Mangesh Bhaurao Bhoyar, PSI/Investigating Officer at Exh.

18.

7. After a comprehensive appraisal of the evidence on record

and consideration of the submissions advanced by the parties, the

trial Court concluded that the acts attributed to the appellant

squarely fall within the ambit of Sections 354 and 354-A of the IPC

as well as Section 7, punishable under Section 8, of the POCSO Act.

4 apeal-772-2019.odt

Section 354-A of the IPC prescribes a punishment of rigorous

imprisonment for a term which may extend to three years, or with

fine, or with both. Section 8 of the POCSO Act, however, mandates a

minimum sentence of three years' imprisonment, extendable up to

five years, in addition to a fine. Invoking Section 42 of the POCSO

Act, which provides that where an act constitutes an offence under

both the IPC and the POCSO Act, the offender shall be liable to

punishment under the statute prescribing the greater punishment,

the Trial Court held that the appellant was required to be sentenced

in accordance with Section 8 of the POCSO Act. Consequently, the

appellant was convicted for the offences punishable under Sections

354 and 354-A of the IPC, as well as Section 8 of the POCSO Act.

After recording evidence and hearing arguments, the trial Court

concluded that the appellant's act fell within the ambit of Sections

354 and 354-A of the IPC as well as Section 7 read with Section 8 of

the POCSO Act. Section 354-A of the IPC prescribes punishment of

rigorous imprisonment for a term up to three years or fine. Section

8 of the POCSO Act prescribes imprisonment not less than three

years, extendable up to five years, along with a fine. Relying on

Section 42 of the POCSO Act, the trial Court held that the appellant

was liable for punishment under Section 8 of the POCSO Act. The 5 apeal-772-2019.odt

appellant was accordingly convicted under Sections 354, 354-A of

the IPC, and Section 8 of the POCSO Act.

8. Heard Mr. S.R. Jaiswal, learned Counsel (appointed) for the

appellant, and Mr. Amit Chutke, learned Additional Public

Prosecutor, for the State. The record has been perused in its entirety.

9. Contentions of the Appellant: Mr. Jaiswal, learned Counsel

contended that Section 8 of the POCSO Act is not applicable as the

prosecution failed to prove that the appellant caught hold of the

victim with sexual intent. He argued that the victim resides in a

densely populated slum, making it improbable that such incidents

could occur unnoticed. He also pointed out discrepancies in the

timing of the alleged incidents between the FIR, the victim's

statement, and her testimony. He submitted that PW 3's testimony

was hearsay, the call made by the victim was not verified through

call data records, PW 4 turned hostile, and independent witnesses

were not examined. Further, he highlighted the delay in filing the

FIR and the omission of the word "game" from the FIR. In support,

he relied on the decisions of this Court in Manoj Suryakant Dalvi v.

State of Maharashtra, 2025 ALL MR (Cri.) 2258; and Santosh v.

State of Maharashtra (Criminal Appeal No. 301/2022).

6 apeal-772-2019.odt

10. Contentions of the State: The learned Additional Public

Prosecutor submitted that the trial Court had rightly invoked

Section 8 of the POCSO Act, as the evidence clearly established that

the appellant had held the victim's hand with sexual intent. He

contended that although minor inconsistencies appeared in the

victim's statements, these were trivial in nature and did not affect

the core of the prosecution case. The appellant, it was argued, failed

to produce any material to discredit the victim's testimony or to cast

doubt on the credibility of her narration of events. The learned

Addl.P.P. further submitted that the defence could not elicit anything

material or fatal to the prosecution during the cross-examination of

the witnesses. A bare perusal of the depositions of the prosecution

witnesses would reveal that their testimonies are consistent,

trustworthy, and free from material contradictions. He, therefore,

argued that the ingredients of the offences under Sections 354 and

354-A of the IPC, as well as Section 8 of the POCSO Act, stood fully

established, and the conviction recorded by the trial Court

warranted no interference.

11. Before proceeding to analyse the rival submissions and

arrive at a conclusion, it is incumbent upon this Court to first

evaluate the testimony of the prosecution witnesses.

7 apeal-772-2019.odt

12. Deposition of Prosecution Witnesses: Before recording the

testimony of the victim (PW-1), she was seated in the Steno Room

in compliance with child-friendly procedures. On being asked

whether she desired the presence of any relative during her

deposition, she requested that her father remain present, which was

accordingly permitted. The Court ensured that her evidence was

recorded in a victim-friendly atmosphere. She was informed that she

could request breaks at any time. Her evidence was recorded in

camera.

13. PW-1: Victim deposed that on 23.10.2015 she was

alone at home as her parents had gone to work. The appellant,

whom she knew as a neighbour and whom she addressed as

"Mama," came to her house around noon and asked for water. After

she provided the same, he offered her ₹50 and told her to "allow

him to do the game," which she did not understand and therefore

remained silent. On the next day, at about 2:00-2:30 p.m., when

she again provided him water, the appellant caught hold of her hand

and repeated the same offer. She jerked her hand away and

immediately went to her maternal uncle, to whom she narrated the

incident, and thereafter accompanied him to the police station,

where her statement was recorded. She identified her birth

certificate (Exh.10) and stated that the appellant's intention was to 8 apeal-772-2019.odt

sleep with her. She further stated that she showed the spot of

incident to the police during investigation.

In her cross-examination, she admitted that the houses in

the locality are close to each other and that conversations can be

overheard by neighbours. She denied the suggestion that she had

falsely implicated the appellant or that he had never made the

offending statements or held her hand.

14. PW-2: Maternal Uncle of the Victim: PW-2 deposed that on

24.10.2015, the victim came to his house crying around 2:00-2:30

p.m. and narrated that on both 23.10.2015 and 24.10.2015 the

appellant had asked her for water, held her hand, and offered ₹50 to

"do the game," by which she meant that he wanted to sleep with

her. PW-2 stated that he took her to the police station and lodged

an oral report (Exh.12), which was reduced to writing. The FIR

(Exh.13) bears his signature. He identified the appellant as the same

person involved in the incident.

In cross-examination, he admitted that the appellant used to

visit the victim's house earlier and that the victim addressed him as

"Mama." He stated that the report was lodged at the instance of the

victim. He denied the suggestion that he was deposing falsely.

9 apeal-772-2019.odt

15. PW-3: Mother of the Victim: PW-3 stated that the victim is

her daughter and that she and her husband work as a maid servant

and mason respectively. She deposed that on 24.10.2015 the victim

informed her telephonically that the appellant had come to the

house and made the same proposition, offering ₹50 to "do the

game." On returning home, the victim also informed her about the

similar incident of the previous day. PW-3 stated that the appellant,

who is her adopted brother, resides behind their house and that the

victim used to address him as "Mama." She identified the appellant

in Court.

In cross-examination, she admitted that she had not told the

police about receiving the phone call from her brother. She denied

the suggestion that no such incident had occurred.

16. PW-4: Panch Witness: PW-4 stated that he ran a pan shop

and that the police had obtained his signature there, though he did

not know the contents of the spot panchanama. He did not support

the prosecution case, and was permitted to be cross-examined by

the APP. He denied suggestions that the police had called him to the

scene and prepared the panchanama in his presence.

10 apeal-772-2019.odt

17. PW-5: Investigating Officer: PW-5, the PSI attached to

Yavatmal City Police Station, stated that on 24.10.2015 the victim's

maternal uncle lodged an oral report which he reduced to writing

(Exh.12) and accordingly registered Crime No. 450/2015. He

conducted the investigation, visited the spot the next day with

panch witnesses, and prepared the spot panchanama (Exh.19). He

recorded statements of witnesses, collected documents including the

victim's birth certificate, and arrested the appellant, preparing the

arrest form (Exh.20). He stated that the victim's statement under

Section 164 Cr.P.C. was also recorded.

In cross-examination, he admitted that the locality is thickly

populated and that he did not record statements of neighbours. He

denied all suggestions that he failed to conduct proper investigation

or filed a false charge-sheet.

Reasoning, Analysis and Conclusion :

18. This Court has carefully examined the oral and documentary

evidence placed on record. In cases arising under the POCSO Act,

the testimony of the child victim occupies a position of paramount

importance and, if found cogent and trustworthy, can by itself form 11 apeal-772-2019.odt

the basis for conviction. With this settled principle in view, the

testimony of the victim (PW-1) is first evaluated.

19. PW-1 has given a clear, consistent and natural account of

the incidents that occurred on 23.10.2015 and 24.10.2015. Her

deposition shows that on both occasions the accused entered her

house under the pretext of asking for water, held her hand, and

stated that he would give her ₹50/- if she allowed him to "do the

game," which she explained as an invitation by the accused to sleep

with her. Her narration is spontaneous and free from

embellishment. She immediately approached PW-2, her maternal

uncle, on the second day and the FIR was thereafter promptly

lodged. The core of her evidence remained unshaken in cross-

examination. Minor discrepancies regarding peripheral details do

not affect the credibility of her substantive account. Her testimony

inspires confidence and is accepted.

20. The evidence of PW-2, the maternal uncle of the victim,

provides material corroboration. He stated that the victim came to

him in a distressed condition on 24.10.2015 and narrated the

incident to him. He promptly took her to the police station and

lodged the oral report (Exh.12). His evidence substantially 12 apeal-772-2019.odt

corroborates the victim's version in respect of the acts done by the

accused and the timing of the occurrence. The omissions brought in

the cross-examination are minor and do not go to the root of the

prosecution case.

21. PW-3, the mother of the victim, further supports the

prosecution case by stating that the victim informed her over the

phone about the incident of 24.10.2015 and later disclosed the

incident of the previous day as well. The minor omission in her

police statement pertaining to the phone call does not weaken her

substantive evidence. She admitted that the accused was treated as

an adopted brother and was known to the family, but that does not

diminish the wrongfulness of the acts attributed to him. Her

testimony is consistent with the version of PW-1 and PW-2.

22. PW-4, the panch witness, did not support the prosecution

case. However, it is settled law that the testimony of a hostile

witness does not efface or nullify the other credible evidence on

record. PW-4 was only a witness to the spot panchanama, and the

substantive offence in the present case does not depend upon his

testimony. His hostility therefore does not affect the core

prosecution case.

13 apeal-772-2019.odt

23. PW-5, the Investigating Officer, proved the registration of

the FIR, the spot panchanama (Exh.19), the arrest of the accused,

and the other steps of investigation. His testimony is consistent and

the defence has not been able to elicit anything to show mala fides,

improper investigation, or fabrication. The omission to examine

neighbours is not fatal, particularly when the evidence of the victim

clearly shows that she was alone at the time of the incident.

24. The prosecution has placed on record the birth certificate

(Exh. 10) of the victim, wherein her date of birth is recorded as

06.09.2002. The certificate was registered on 30.09.2002 under

Registration No. 7291 and was issued on 21.08.2008 by the

Registrar of Births and Deaths and Chief Officer, Municipal Council,

Yavatmal. The document reflects the name of the victim, the names

of her parents, and the place of birth. Being a public document, the

birth certificate does not require further corroboration. The alleged

incident occurred on 24.10.2015. Based on the date of birth

recorded as 06.09.2002, the victim was approximately 13 years and

19 days old at the time of the incident and was, therefore, a minor.

She squarely falls within the definition of a "child" under Section

2(d) of the POCSO Act.

14 apeal-772-2019.odt

25. The victim, a minor aged about 13 years, deposed that on

two separate occasions the appellant approached her house while

her parents were away, made an offer of money in exchange for

sexual favours, and on the second occasion caught hold of her hand.

The evidence of the victim (PW 1) is corroborated by her maternal

uncle (PW 2), who lodged the FIR immediately after being

informed. Although the mother of the victim (PW 3) gave evidence

on hearsay, this does not materially undermine the prosecution case,

as the FIR and the victim's statement under Section 164 Cr.P.C.

provide direct corroboration.

26. The appellant highlighted minor discrepancies in the

timing of the alleged incidents between the FIR and trial evidence,

as well as in the details of a call made by the victim to her mother. It

is well-settled that minor variations in time or narration do not

vitiate a credible prosecution case, particularly in cases involving

child victims. The core fact remains that the appellant attempted to

induce sexual activity and physically restrained the victim's hand,

which forms the substance of the offence.

27. The contention that PW-4, the panch witness, has turned

hostile does not materially affect the prosecution case. The spot of

the incident stands duly proved through the testimony of the 15 apeal-772-2019.odt

Investigating Officer and minor procedural lapses, if any, in the

conduct of the spot panchanama do not undermine the substantive

evidence establishing the offence. No suggestion of fabrication or

false implication has been elicited on behalf of the appellant.

28. The applicability of Section 8 of the POCSO Act is

established by the evidence that the appellant caught hold of the

minor victim with sexual intent. The act of offering money in

exchange for sexual favours, combined with physical control over

the victim's hand, satisfies the statutory requirements under Section

7 and attracts punishment under Section 8. The argument that mere

holding of hand without further physical assault cannot constitute

an offence is without merit, as the POCSO Act protects children

from sexual assault in all its forms, including attempted or

inducement-based acts.

29. The law recognizes the vulnerability of child victims and

does not require corroboration by independent witnesses. In this

case, the victim's testimony is direct, consistent, and corroborated

by the FIR and Section 164 Cr.P.C. statement. The judgments relied

upon by the appellant are distinguishable, as those cases involved

either inherently improbable allegations or material contradictions

undermining the prosecution case. In contrast, the evidence before 16 apeal-772-2019.odt

this Court establishes credible attempts by the appellant to sexually

exploit the minor victim.

30. Insofar as the defence is concerned, apart from

suggesting false implication due to neighbourhood familiarity, no

material has been brought on record to discredit the prosecution

evidence. On the contrary, the defence suggestions that the accused

was known to the family or that the victim called him "Mama" are

consistent with the prosecution case and merely show that the

accused had easy access to the victim's house. No defence evidence

has been led to rebut the prosecution case.

31. The acts described by the victim constitute "sexual

assault" within the meaning of Section 7 of the POCSO Act, as they

involve physical contact coupled with clear sexual intent. The act of

catching hold of the hand of a minor child, accompanied by an offer

of money and an invitation to engage in sexual activity,

unmistakably demonstrates sexual intent. The ingredients of Section

8 of the POCSO Act are fully satisfied. The conduct of the accused

further falls within the ambit of Sections 354 and 354-A of the IPC.

The Hon'ble Supreme Court in Raju Pandurang Mahale Vs. State of

Maharashtra, (2004) 4 SCC 371, have discussed the essential

ingredients of Section 354 of IPC, paragraphs 11 to 15 read thus:

17 apeal-772-2019.odt

"11. Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force on a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:

(a) That the assault must be on a woman.

(b) That the accused must have used criminal force on her.

(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.

12. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word "modesty" is not defined in IPC. The Shorter Oxford Dictionary (3rd Edn.) defines the word "modesty" in relation to a woman as follows:

"Decorous in manner and conduct; not forward or lewd; Shamefast; Scrupulously chaste."

13. Modesty is defined as the quality of being modest; and in relation to a woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patteson in R. v. James Lloyd:

In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there 18 apeal-772-2019.odt

should be some action on the part of the accused which would show that he was just going to have sexual connection with her.

14. Webster's Third New International Dictionary of the English language defines modesty as "freedom from coarseness, indelicacy or indecency: a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn.), the meaning of the word "modesty" is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".

15. In State of Punjab v. Major Singh a question arose whether a female child of seven-and-a-half months could be said to be possessed of "modesty" which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the "common notions of mankind" referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of "modesty" and the interpretation given to that word by this Court in Major a Singh case the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deol Bajaj v. Kanwar Pal Singh Gill. When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of the accused- b appellant and the concrete role he consistently played from the beginning proved combination of persons and minds as well and as such amounted to "outraging of her modesty"

for it was an affront to the normal sense of feminine decency. It is further to be noted that Section 34 has been rightly pressed into service in the case to fasten guilt on the accused-appellant, for the active assistance he 19 apeal-772-2019.odt

rendered and the role played by him, at all times sharing the common intention with A-4 and A-2 as well, till they completed effectively the crime of which the others were also found guilty."

32. Section 42 of the POCSO Act provides that where an act

constitutes an offence under both the POCSO Act and the IPC, the

offender shall be punished under the statute providing the greater

punishment. Section 8 of the POCSO Act prescribes a minimum

sentence of three years, which is more stringent than Section 354-A

of the IPC. The trial Court was therefore justified in invoking

Section 42 and imposing punishment under Section 8 of the POCSO

Act.

33. Upon an overall consideration of the evidence of the

victim PW-1, the corroboration from PW-2 and PW-3, the

supporting testimony of the Investigating Officer PW-5, and the

absence of any credible defence, this Court finds that the

prosecution has proved its case beyond reasonable doubt. The

testimony of the child victim is truthful and reliable. The minor

inconsistencies pointed out by the defence are immaterial and do

not dent the core prosecution case. The conviction of the appellant

under Sections 354 and 354-A of the IPC and Section 8 of the

POCSO Act is therefore well-founded and warrants no interference.

20 apeal-772-2019.odt

34. The judgments of this Court relied upon by the learned

Counsel for the appellant in Manoj Suryakant Dalvi v. State of

Maharashtra, 2025 ALL MR (Cri.) 2258, and Santosh v. State of

Maharashtra (Criminal Appeal No. 301/2022) do not advance the

case of the appellant. Both decisions turn on their own distinct

factual matrices, which are not comparable to the circumstances of

the present matter. The ratio laid down therein was rendered in the

context of materially different evidence and legal considerations,

and therefore cannot be applied to the facts of the present case.

Consequently, the reliance placed on the said judgments is

misplaced.

35. In view of the foregoing discussion and upon a thorough

re-appraisal of the evidence, this Court finds no infirmity, perversity,

or illegality in the findings recorded by the learned Trial Court. The

conviction of the appellant for offences punishable under Sections

354 and 354-A of the IPC, as well as Section 8 of the POCSO Act, is

accordingly affirmed.

36. In Shri Narshiv Usapkar Vs. The State of Goa, 2012 ALL

MR (Cri) 3891 this Court held in paragraph 17 as follows:

"17. .......... Therefore, in my view, though the accused had no criminal antecedents prior to commission of the alleged 21 apeal-772-2019.odt

offence and although the accused is married and having two children, these facts themselves would not entitle the accused to get benefit of Section 4 of Probation of Offenders Act. While awarding the sentence, balance has to be struck between the interest of the accused and that of the society; otherwise the very purpose of sentencing the accused in a crime, would be defeated."

In the present case, having regard to the nature and gravity of the

offences committed by the appellant, as well as the findings

recorded by the learned Trial Court, the observations made in Shri

Narshiv Usapkar (supra) are squarely applicable. In view of the said

observations, the appellant cannot be extended the benefit of the

Probation of Offenders Act, 1958. While the appellant may have no

prior criminal antecedents, the seriousness of the offences, which

involve sexual assault on a minor, requires that a balance be struck

between the interests of the accused and those of society. Granting

the benefit of probation in such circumstances would be contrary to

the object and purpose of sentencing in cases of this nature.

37. The sentence imposed by the learned Trial Court, being