[Cites 8, Cited by 0]
Bombay High Court
Amin Alias Aftab Mehboob Hashmi vs The State Of Maharashtra And Anr. on 17 December, 2025
2025:BHC-AS:55961
14-APEAL-563-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CR. APPEAL NO. 563 OF 2021
Amin Alias Aftab Mehaboob Hashmi }
Age-27 years, Occ: service, }
}
R/at Teen Bangala Rali, Washi Sangh
}
Nirmal Nagar, Khar (E), Mumbai }
And }
Permanent Resident of Babusarai }
Sant Ravidas Nagar Thana-Aurahi, }
District-Bhadohi, State-Uttar Pradesh and } (Org.Accused)
NILAM Digitally signed by
NILAM SANTOSH Presently undergoing sentence at } ... Appellant
SANTOSH KAMBLE
Date: 2025.12.18 }
KAMBLE 14:23:08 +0530 Amravati Central Prison, Amravati
Versus
1. State of Maharashtra }
(At the instance of Nirmal Nagar Police }
}
Station in CR No.121 of 2018)
}
}
2. Name : XYZ }
Age-17 years }
Add: 501, 'A' Wing, Safa Marwa }
Apartment, Patonnadi, Malad (E), } ... Respondents
Mumbai.
----
Ms.Sayed Shabana Mashkoor Ali a/w Ms.Lakshmi Raman, for the
Appellant.
Mr.S.S. Ghag, APP, for Respondent No.1-State.
Ms.Trupti Khamkar, for Respondent No.2.
----
N.S. Kamble page 1 of 11
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14-APEAL-563-2021.doc
CORAM : R.M. JOSHI, J.
DATE : 17th DECEMBER 2025
ORAL JUDGMENT :
. This Appeal against the judgment and order dated
10th February 2021 Passed in special POSCO Case No.317 of
2018, whereby the Appellant is convicted for the offences
punishable under Section 376 of Indian Penal Code ('IPC' for
short) and Section 4 and 8 of the Protection of Children from
Sexual Offences Act, 2012 ('POCSO' for short) and sentences
to suffer RI for 15 years of imprisonment with fine. He is also
convicted for the offence punishable under Section 420 of the
IPC and Section 8 of the POCSO Act and sentenced to suffer 3
years imprisonment with fine of Rs.5,000/- in default R.I. for
two months.
2. It is the case of the prosecution that at the time of
the occurrence of the incident i.e. around June 2017, the victim
who was minor developed friendly relationship with the
Accused. It is claimed that in June 2017 Accused called her at
his residence and on promise of marriage committed sexual
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intercourse with her. It is further case of the prosecution that
thereafter on various pretexts the Accused has asked for money
and on different occasions either in form of gold or cash of Rs.4
lakhs was given by the victim to him. It is claimed that due to
promise of marriage given by Accused the physical relations
were agreed and the gold and cash was paid to him. Since, the
Accused failed to marry her and blocked her phone, she filed
complaint with Police. On the basis of the said report crime
bearing No.121 of 2018 came to be registered with Nirmal
Nagar Police Station. Investigation into the crime was done.
The victim was referred for medical examination. Her
statement was recorded under Section 161 of Cr.P.C. The
Investigating Agencies carried out panchnamas and
incriminating articles were recovered. On conclusion of
investigation charge-sheet is filed.
3. Since, the Accused denied the charges, prosecution
examined in all six witnesses.
PW No. Name Designation / Role
PW-1 Name Withheld Prosecutrix
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PW-2 Mother of Prosecutrix Witness
PW-3 Dr. Snehal Murde Medical Officer
PW-4 Sunita Bhosale Investigating Officer
PW-5 Pandurang Kamble Investigating Officer
PW-6 Pramod Kamble Investigating Officer
4. Over and above oral evidence the prosecution
placed reliance on FIR, spot panchnama, medical report of
victim, birth certificate, house search panchnama, statement
under Section 161 of the Cr.P.C. and arrest form. The
incriminating evidence was put to the accused in his statement
under Section 313. He not only denied the incriminating
circumstances but also examined himself on oath. The learned
Trial Court found the evidence led by the prosecution
sufficient to convict the Accused and accordingly impugned
judgment came to be passed.
5. The learned counsel for the Appellant submits that
evidence of the victim is not wholly reliable in order to convict
the Accused without seeking any corroboration thereto. It is
submitted that, the cross-examination of the victim indicates
that her statement before the Court in substantive evidence is
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no believable. It is thus submitted that, having regard to the
nature of evidence on record it cannot be held that the offence
under Section 376 of the IPC and Section 4 of the POCSO Act
is proved.
6. Insofar as the offence punishable under Section 420
is concerned, it is argued that the testimony of the victim as
well as her mother is not sufficient to conclude that the
prosecution has proved any amount or gold having been given
to the Accused on the promise of marriage. It is her submission
that there are no receipts placed before the Trial Court in order
to show that any such gold was there with the victim which was
given to the Accused so also the witness who had given the cash
was not examined before the Trial Court. Moreover, there is no
recovery of incriminating articles from the Accused. On these
amongst submission she seeks acquittal of the Accused.
7. The learned APP and learned counsel for
Respondent No.2 opposed the Appeal by pointing out the fact
that admittedly the victim was minor at the time of occurrence
of the offence. They drew attention of the Court to the cross-
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examination conducted of victim suggesting physical
relationship between them and a case being sought to made out
of consensual physical relations. It is argued that there is
further medical evidence to corroborate the version of the
victim about sexual intercourse being done by the Accused
with her. It is their submission that consent of the victim
becomes immaterial, in view of the fact that, she was minor at
the relevant time. Thus they argued for maintaining conviction
for the offence punishable under Section 376 of IPC and
Section 4 of POCSO Act. Insofar as the offence punishable
under Section 420 is concerned, it is their contention that the
evidence of victim if accepted on the point of sexual
harassment, there is no reason not to believable her in respect
of the offence of cheating committed by the Accused.
8. Perusal of the evidence on record indicates that the
prosecution has proved by placing reliance on birth certificate
of the victim (Exhibit-9) that her date of birth is 1 st February
2001 and she was minor i.e. child within meaning of Section
2(d) of POCSO Act. This fact has not been disputed by the
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defence. It is therefore held that at the relevant time the victim
was child and provisions of POCSO Act apply to the present
case.
9. Though now it is sought to be argued on behalf of
the Appellant/Accused that the prosecution has failed to prove
the sexual relationship between Accused and Victim, the tenor
of the evidence of the victim more particularly cross-
examination conducted on behalf of the defence clearly
indicates that the physical relationship between the Accused
and the victim is not denied. Apart from the said cross-
examination, there is medical evidence to support the same.
10. The entire attempt of the defence in cross-
examining the victim was to bring on record her consent for
the said sexual relationship. Once it is admitted that the victim
was minor, her consent becomes immaterial. Having regard to
the testimony of victim, her version insofar as the sexual
intercourse being committed by the Accused with her found to
be reliable. Moreover, it gets support from the medical
evidence. This Court therefore finds no hesitation to hold that
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the offence punishable under Section 376 of the IPC and
Section 4 of the POCSO Act has proved against the
Appellant/Accused.
11. Merely because the Court accepts the evidence of
the victim, insofar as this sexual assault caused on her, it is not
necessary that part of the evidence which is not convincing also
could become basis for conviction of the Accused for the
offence punishable under Section 420 of the IPC. The maxim
of faluses in uno and faluses in omnibus has no Application to
the India laws. Needless to say that, in order to prove the
offence of cheating and more particularly the transfer of money
as well as gold ornaments to the Accused by the victim, there
has to be cogent evidence to support the same. Here in this
case as rightly pointed out by the counsel for the Appellant that
except for the oral statement of victim, there is no other
evidence to corroborate the said version on her. It cannot
ignored that the report came to be lodged only for reason that
Accused refused to marry victim.
12. Apart from this, victim claims that she had taken
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money from Sadam for payment of the amount to the Accused.
It was thus possible for the prosecution to examine Sadam
which has not been done here in this case. Moreover, even it is
accepted by the Investigating Officer in his cross-examination
that no receipts of any ornaments were produced during the
course of investigation and consequently they were not
produced before the Trial Court.
13. Having regard to the such nature of the evidence, it
cannot be held that the prosecution has proved the offence
punishable under Section 420 of IPC beyond reasonable doubt.
The Appellant/Accused therefore deserves to be acquitted from
the said charge.
14. On the point of the sentence, the learned counsel
for the Appellant/Accused submits that whether the consent of
the victim is valid or otherwise, this is a case of love affair and
the victim was of sufficient age of maturity, and therefore
having regard to the fact that at the relevant time the offences
were punishable with minimum sentence of 7 years, the said
minimum sentence be imposed against the Accused. The
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learned counsel for Respondent No.2 and learned APP
opposed the said contention and sought confirmation of
sentence imposed by Trial Court.
15. The evidence of victim clearly indicates that there
was love relationship between the victim and the Accused and
the sexual relationship was also consensus in nature. Only
because it amounts to statutory rape as the victim was unable to
legally consent for consensual relationship the offence is held to
be proved. The Appellant has no antecedents. Having regard
to the fact of the case, this is a fit case wherein the
Appellant/Accused deserves to be sentenced to suffer
imprisonment for minimum period prescribed by the law, since
it is not open for this Court to reduce the sentence below to the
prescribed minimum sentence. In the result following order.
ORDER
(i) The order of conviction of
Accused/Appellant for offence punishable under
Section 376 of IPC and 4 of POCSO Act stands
confirmed. Hence, he is sentenced to suffer
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rigorous imprisonment for a period of 15 years
with fine of Rs.10,000/-(Rs.Ten Thousand), in
default, to suffer further RI for 4 (Four) months.
(ii) The Appellant/Accused stands,
acquitted for offence punishable under Section
420 of IPC.
(iii) Rest of the order of Trial Court to
remain unchanged.
15. All pending Applications are disposed of.
(R.M. JOSHI, J.)
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