Shaikh Musa Shaikh Baba vs The State Of Maharashtra And Another
2025 Latest Caselaw 8846 Bom

Bombay High Court

Shaikh Musa Shaikh Baba vs The State Of Maharashtra And Another on 16 December, 2025

2025:BHC-AUG:35372
                                                                           Criminal Appeal-362-2024.odt

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO.362 OF 2024
                                        WITH
                        CRIMINAL APPLICATION NO.3152 OF 2025

          Shaikh Musa Shaikh Baba,
          Age: 45 years, Occu. Agri.,
          R/o. Deogaon,Tal - Badnapur,
          District - Jalna.                                              .... Appellant

                        VERSUS
          1. The State of Maharashtra
          (Through Badnapur Police Station,
          Tq. Badnapur, Dist. Jalna.

          2. XYZ
          (The name and address of Respondent No.2 is given in Seal envelop)
                                                                         ..... Respondents

          Appearance :
          Mr. Samir S. Shaikh a/w Mr. Tousif S. Shaikh, Advocate for the
          Appellant.
          Ms. M. L. Sangit, APP for Respondent No.1.
          Mr. K. N. Shaikh, Advocate for Respondent No.2.
          __________________________________________________

                                      CORAM                   : NEERAJ P. DHOTE, J.
                                      Reserved On             : 11th December, 2025
                                      Pronounced On           : 16th 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 28/08/2023,

passed by the Extra Joint District Judge and the learned

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Additional Sessions Judge (POCSO), Jalna, District Jalna

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

Case No.78/2020, convicting and sentencing the Appellant as

follows :

"(1) Accused Shaik Musa S/o Shaikh Baba is hereby convicted under U/s 235(2) of Cr.P.C. for the offence punishable U/s 10 R/w 9, of the POCSO Act, and is sentenced to suffer rigorous imprisonment (R.I.) for Five (5) years & to pay fine of Rs.10,000/-

(Rs. Ten Thousand only), and in default to pay a fine amount, to undergo simple imprisonment (S.I.) for Six (6) months; &

2) As such, the accused is hereby convicted under U/s 235(2) of Cr.P.C. for the offence punishable U/s 8 R/w 7 of the POCSO Act, and is sentenced to suffer rigorous imprisonment (R.I.) for Three (3) years & to pay fine of Rs.3,000/- (Rs.Three Thousand only), and in default to pay a fine amount, to undergo simple imprisonment (S.I.) for Three (3) months; &

(3) As such, the accused is also convicted U/s 235(2) of Cr.P.C. for the offence punishable U/s 12 R/w 11 of the POCSO Act and is sentenced to suffer R.I. for One (1) year to pay fine of Rs.1000/- (Rs. One Thousand only) & in default to pay fine amount, to undergo S.I. for Two(2) months.

(4) The aforesaid sentences to run concurrently. (5) .... .... .... .... .... .... .... .... .... ... (6) .... .... .... .... .... .... .... .... .... ... (7) .... .... .... .... .... .... .... .... .... ... (8) .... .... .... .... .... .... .... .... .... ... (9) .... .... .... .... .... .... .... .... .... .."

2. The case of Prosecution as revealed from the Police

Report is that, the victim was a minor daughter of the

Informant. The Appellant is the relative and the neighbourer.

Fifteen (15) days prior to lodging of the report, the victim came

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weeping to the Informant and told her that, the Appellant

touched her private part and gave his private part in her hand.

The Informant told the incident to her family members;

however, it was decided not to lodge the report with the Police.

One day before lodging the report, the victim told the

Informant that, the Appellant was calling her and was saying

that, he will kill her. At that time, the Informant came out of

the house and noticed that, the Appellant was calling the victim

to his house by gestures. When the Informant questioned him,

quarrel took place between them. Eventually, the victim's

mother approached the Badnapur Police Station and lodged the

report against the Appellant and Crime bearing No.91/2020

came to be registered for the offence punishable under

Sections 354, 354-A(1)(i), 506 and 509 of the Indian Penal

Code, 1860 (hereinafter referred to as 'IPC') and for the

offence punishable under Sections 10 and 12 of the Protection

of Children from Sexual Offences Act, 2012 (hereinafter

referred to as 'POCSO Act').

3. During the investigation, the Spot Panchnama was

carried out. The statement of the victim came to be recorded.

The statement of other witnesses were recorded. The

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documents in respect of date of birth of the victim came to be

collected. On completion of investigation, the Appellant came

to be charge-sheeted for the above-referred Sections of IPC

and POCSO.

4. On committal, the learned Trial Court framed the

Charge against the Appellant below Exhibit - 10 for the offence

punishable under Sections 354, 354-A(i) and 506 of IPC and for

the offence punishable under Sections 8, 10 and 12 of the

POCSO Act. The Appellant pleaded not guilty and claimed to be

tried. To prove the Charge, Prosecution examined the following

witnesses:

       (i)    PW - 1 (Rashid Pathan), the Spot Panch;

       (ii)   PW - 2, the victim's father;

       (iii) PW - 3, the victim's mother ;

       (iv) PW - 4, the victim ;

       (v)    PW - 5 (Gajanan Jarwal), the Police Officer, who
              registered the Crime ;

(vi) PW - 6 (Bhanudas Gaikwad), the Gram Sevak ;

(vii) PW - 7 (Sudam Bhagwat), Investigating Officer;

4.1. In the evidence of the above-referred

witnesses, the relevant documents are brought on record by

the Prosecution. On submitting the evidence closure pursis by

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the Prosecution, the learned Trial Court recorded the statement

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

Appellant denied the case and evidence of the Prosecution. On

appreciating the evidence on record, the learned Trial Court

passed the impugned Judgment and Order.

5. It is submitted by the learned Advocate for the

Appellant that, the terms between the family of the victim and

the Appellant's family were strained. They were not on talking

terms. One day prior the lodging of report by the Informant,

the wife of Appellant had lodged the report against the family

members of the victim, and therefore, as the counterblast,

false report was lodged against the Appellant. The evidence on

record in respect of the incident was vague as no specific date

and time is forthcoming. The spot of incident was shown by

the mother. The evidence of the victim show that, she was not

the witness of sterling quality. There is inconsistency in the

evidence of the victim's mother and victim's father. There was

inordinate delay in lodging the report. The victim was subjected

to tutoring and her evidence was tutored. The learned Trial

Court committed an error in passing the impugned Judgment

and Order by not considering the vital aspects of delay, enmity

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between the parties, and possibility of tutoring the victim, and

the Appeal be allowed.

6. It is submitted by the learned APP for Respondent

No.1 - State that, the Prosecution proved that, the victim was

a child. The delay in lodging the report was explained. The

testimony of the material witnesses was consistent and

corroborated by their previous statement. The suggestions of

false implication are denied by the Prosecution witnesses. No

fault can be found with the impugned Judgment and Order. The

Appeal be dismissed.

7. It is submitted by the learned Advocate for

Respondent No.2 - victim that, it was proved that, the victim

was a child. All the witnesses supported the case of

Prosecution. The testimony of the victim was clear, and

nothing came in the cross-examination to show that, she was

tutored. The testimony was consistent with her previous

statement. The previous complaint before the report was

between father-in-law of the victim and father of the victim.

The presumption under Sections 29 and 30 of the POCSO Act

comes into play. The defence was not proved. The sole

testimony of the victim was sufficient and the Appeal be

dismissed.

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8. As regards the date of birth and the age of victim is

concerned, the Prosecution is relying on the evidence of PW - 6

(Bhanudas Gaikwad). His evidence show that, he was a Gram

Sevak since 1996 of Village - Devgaon. He was the custodian

of birth and death register. As per the record of the Gram

Panchayat, the date of birth of the victim was 14/07/2012. The

Exhibit - 35 (birth certificate) was brought on record in the

evidence of this witness. His evidence show that, on the basis

of entry in the register of birth and death, he used to issue the

certificate. He identified his signature and the contents of

Exhibit - 35 (birth certificate). His evidence show that, the

birth certificate was not collected by the Police. His cross-

examination show that, the Exhibit - 35 (birth certificate) was

issued on 13/03/2020 i.e. on the date of lodging the report.

The evidence further show that, birth certificate was prepared

at the request of the victim's father. However, his evidence

that, the above-referred date of birth of the victim was

registered in the record on 16/07/2012 remained unshaken.

Therefore, there is no hesitation to observe that, through the

evidence of this witness, the Prosecution proved the date of

birth of the victim as 14/07/2012 as recorded in the Gram

Panchayat. In addition to the above, the Informant, who is the

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victim's mother, gave the date of birth of victim as 14/07/2012,

which corroborate the date of birth of the victim mentioned in

the Gram Panchayat record. With this evidence on record, the

Prosecution has proved the date of birth of the victim.

Undisputedly, the Crime was registered on 13/03/2020, as seen

from the evidence on record. From this evidence on record, it

is clearly established that, the victim was child at the relevant

time, i.e. on the lodging of the report, which was in respect of

previous incident.

9. What is clear from the evidence on record

particularly of the victim's father, who is PW - 2, is that, the

relations between his family and the Appellant were strained.

Once the Appellant filed report in the Police Station against

him, against his wife and against his father. It has further

come in the evidence of this witness that, on 11/03/2020, i.e.

two days prior to the registration of the Crime against the

Appellant, the wife of the Appellant, namely, Bilqis filed report

with the Badnapur Police Station in respect of quarrel. The

Exhibit - 83 is a Non Cognizable Report (for short 'NC') by

Shaikh Bilqis Shaikh Musa against the victim's father, victim's

grandfather and victim's uncle. The endorsement on the said

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Exhibit (Page No. 113 of the paper-book) show that, it was

exhibited as per order on Exhibit - 80. From the evidence of

the victim's father, coupled with the said NC, it is clear that, the

relations between the family of the victim and the family of the

Appellant were not cordial, and they were not on talking and

visiting terms.

10. The victim's mother, who lodged the report with the

Police, is examined as PW - 3. Her evidence show that, she

approached the Police and lodged the report below Exhibit -

22. Undisputedly, she is not the eyewitness to the incident

fifteen (15) days prior to lodging the report. According to her,

on 12th day at about 10:00 a.m., while she was preparing the

meal and the victim was playing outside the house, the victim

told her that, the Appellant was calling her and further

informed that, the Appellant threatened her to cut down and

when she came out of her house, she saw the Appellant making

indecent gestures towards the victim. She further deposed

that, when she questioned the Appellant, he abused her and

after arrival of her husband i.e. PW - 2, she informed about the

same to him. However, the evidence of PW - 2 (father of

victim) do not show as to what was the incident which took

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place for second time. He just deposed that, after knowing

the incident for second time, the report was lodged. Therefore,

it is clear that, the testimony of the Informant in respect of 12 th

day incident, there was no corroboration from PW - 2. Further,

she denied that, on 11th, the wife of Appellant filed report

against her family members. This show that, the testimony of

this PW - 3 (Informant) cannot be accepted as it is. When the

father of the victim admitted about lodging of report by the

Appellant's wife against his family members, which was

corroborated by Exhibit - 83 (NC), the Informant denies about

the same. This go to show that, the Informant cannot be

categorized as a truthful witness, and her testimony is required

to be considered with great care, caution, and corroboration.

11. The star witness of the Prosecution is the victim, who

is examined as PW - 4. Though the note of the learned Trial

Court above her testimony show that, some preliminary

questions were put to her to ascertain whether she understood

the importance of oath, those questions are not reflected. The

victim deposed that, the Appellant used to put his hand on her

private part and when she used to object, the Appellant used to

threaten her. According to her, the incident occurred fifteen

(15) days prior to its disclosure to the Police. Her evidence in

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cross-examination show that, the incident of touching her

private part occurred once. Her further evidence show that,

the Appellant was residing with his family members. The

incident of indecent behaviour occurred two (02) to three (03)

times. It is needless to state that, the testimony of the child is

required to be considered with great care and caution, as the

child is prone to tutoring. The evidence of the victim show

that, her mother accompanied her to the Police Station and was

present with her and her father was outside. The Informant's

evidence show that, two (02) to three (03) days after filing the

report, the victim was taken to the Police Station by her and

her husband. The evidence of PW - 7 (Investigating Officer)

show that, the victim was brought to the Police Station on the

next day of registration of the Crime with her parents and her

statement was recorded in presence of her mother. From this

evidence on record, the possibility of tutoring the victim cannot

be ruled out. The suggestion is given in cross-examination to

the victim that, she deposed falsely or had tutored by her

parents. This possibility cannot be ruled out more so in view of

sour relations between both the sides.

12. Undisputedly, there is fifteen (15) days delay in

lodging the report to the Police. As per the victim's mother, to

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avoid disrepute to the family, they did not lodge the report.

However, strangely, immediately after the wife of the Appellant

lodged the Non-Cognizable Report (Exhibit - 83) against the

Informant's husband, father-in-law and brother-in-law, the

report is lodged by the Informant against the Appellant. This

aspect of the matter assumes importance and makes one to

see the case of Prosecution with doubt. Further, there is

inconsistency in the evidence of PW - 1 (Panch Witness) and

PW - 7 (Investigating Officer) in respect of the Spot

Panchnama. According to the Panch Witness, the spot was

shown by the victim, whereas the evidence of the Investigating

Officer show that, the spot was shown by the victim's mother

and not by the victim. Considering the enmity between the

family of the victim and the family of the Appellant, inordinate

delay in lodging the report with the Police and evidence

indicating possibility of tutoring the child, the Prosecution's

case is required to be seen with doubt and it is not possible to

maintain the conviction and sentence on the evidence available

on record. There cannot be any dispute that, the victim's

testimony can form the sole basis for proving the Charge,

provided the same is of sterling quality and free of any doubt in

respect of tutoring. It is not so in the case at hand. Both the

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sides were at loggerheads. The lodging of complaint by the

Appellant's wife against the husband, father-in-law and

brother-in-law of the Informant preceded the lodging of report

against the Appellant.

13. The learned Advocate for the Appellant tenders

across the bar the certified copies from the School where the

victim was studying to show that, in the month of February and

March - 2020, the victim attended the School on all days and

so the presence of victim in the house of Appellant is not

possible. The same documents were not the part and parcel of

the evidence recorded before the learned Trial Court. Just

tendering the same across the bar at this stage is of no help.

14. In view of the above discussion, the impugned

Judgment and Order convicting and sentencing the Appellant

requires interference. 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 Case No.78/2020 by the Judgment and Order dated 28/08/2023, is hereby quashed and set aside.

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[III] The Appellant is acquitted for the offences for which he was charged and convicted by the learned Trial Court by the impugned Judgment and Order.

[IV] The Appellant is behind the bars. He be released forthwith if not required in any other offence.

[V] The fine amount paid by the Appellant pursuant to the impugned Judgment and Order be refunded to him.

[VI] The Muddemal Articles be dealt with as per the operative order of the impugned Judgment.

[VII] The Record and Proceedings be sent back to the learned Trial Court.

[VIII] Appeal stands disposed off accordingly.

[IX] In view of disposal of Appeal, Criminal Application No.3152/2025 stands disposed.

[NEERAJ P. DHOTE, J.]

Sameer/December -2025