[Cites 2, Cited by 0]
Bombay High Court
Abdulmabood Ghoorali Shaikh vs The State Of Maharashtra And Anr on 28 November, 2025
2025:BHC-AS:51942
901-IA-3211-2025 IN APEAL-790-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.3211 OF 2025
IN
CRIMINAL APPEAL NO.790 OF 2025
Abdulmabood Ghoorali Shaikh .... Applicant
Digitally signed
NILAM by NILAM
SANTOSH
SANTOSH
KAMBLE
V/s.
KAMBLE Date: 2025.11.28
18:09:00 +0530
State Of Maharashtra And Anr .... Respondents
----
Ms.Misbaah Solkar i/b Mr.Amin Solkrar, for the Applicant.
Mr.H.J. Dedhia, APP, for the Respondent-State.
Ms.Kirti Godbole, Appointed Advocate, for Respondent No.2.
----
CORAM : R.M. JOSHI, J.
DATE : 28th NOVEMBER 2025
P.C:-
. Heard both sides.
2. This Application is for suspension of substantive
sentences and enlargement of the Appellant on bail by
judgment and order dated 30th June 2025 passed by Additional
Sessions Judge, Dindoshi in Special POSCO Case No.444 of
2022, whereby the Appellant is sentenced to suffer RI for 20
years with fine for the offences punishable under Section 6 the
N.S. Kamble page 1 of 7
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Protection of Children from Sexual Offences Act, 2012
('POCSO' for short).
3. The learned counsel for the Applicant submits that,
the victim as well as the informant have not supported the case
of the prosecution. He argued that, though there is allegation
against the Appellant of he putting finger in the private part of
the victim girl then aged about 3 years, neither victim nor
informant supported the said allegation before Trial Court.
4. It is his further submission that as admitted by the
witnesses, the victim girl was suffering from gential warts and
treated at Wadia Hospital. It is submitted that, the Medical
Officer has accepted the fact that, the cream applied for the said
deceased has side effects of burning and redness. It is argued
that, the victim in clear terms has accepted the fact that her
grand-mother used to apply the said cream to her private part
and that for except for her no other person/male did it. It is his
statement that in spite of there being no evidence, the learned
Trial Court has convicted the Appellant solely on the basis of
evidence of Dr.Kolhe which according to him indicates that,
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there is possibility/chance of transmission on this disease from
by skin to skin touch. He argued that, there is no material on
record to indicate any skin to skin touch from the Appellant to
his daughter. According to him the Appellant has fair chance
of success in the Appeal, in view of the fact that none of the
prosecution witnesses have supported the case of prosecution
and medical evidence is not conclusive in order to convict him.
5. The learned counsel for the Informant who was
representing the victim had recorded no objection for
suspension of sentence. However, this Court was not satisfied
with the said no objection and hence appointed counsel to
represent the victim. The learned counsel for Respondent
No.2 submits that the evidence on record more particularly
cross-examination of the victim indicates that she was being
tutor not to say anything adverse against her father i.e. accused.
It is submitted that, she was given to understand into that if she
does so her father would be released from jail. It is further
argued that, the statement of the victim and informant under
Section 164 of Cr.P.C. shows that there is substance in the
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allegation against the Appellant of doing the alleged Act. It is
submitted that, this further gets support from the medical
evidence on record.
6. The learned APP also opposed the Application on
amongest other contention on t he ground that the offence is
serious and having regard to provisions of the POCSO, the
Appellant is not entitle for bail.
7. The case of the prosecution before the Trial Court is
that, the Appellant who is the father of the victim used to insert
his finger in her private part. There is further no dispute about
the fact that, the victim was suffering from disease of genital
warts and was being treated in Wadia Hospital for the period of
one and half years. PW-5 Dr.Prabhu has accepted the fact that,
she was being treated for the said disease and that the cream
which was given for Application has side effect of redness and
burning of skin. It thus appear that the victim was treated and
as per her statement in the substantive evidence, the said
medicine was applied only by her grand-mother and not by any
other male. The hymen being torn would not lead to
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conclusion that it has happened due to the act of putting finger
in private part of victim by Accused.
8. The learned Trial Court seems to have recorded
conviction of the victim on the basis of her statement made
under Section 164 of the Cr.P.C. Such statement of the victim
could not have been treated as substantive evidence. Thus, the
only evidence remains for consideration is in the form of
testimonies of Medical Officers.
9. In all five Medical Officers were examined. Though
PW-8 Dr.Dalmia states about history being seen in the record
of Wadia Hospital in respect of the fingering being done by the
father, the person who recorded the said history has not been
examined. Dr.Kolhe, PW-9 admits that, the disease is
sexually transmittable disease and it can be transmitted to
mother of the victim through her husband i.e. father of the
victim. He also claims to be not hereditary disease. Dr.Kolhe
however, claims that, there are chances of transmission of
disease by skin to skin contact with victim by accused. Even
the statement does not conclusively shows that the disease is
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transmitted by skin to skin contact made by the Accused to
victim. Needless to say that, even under the provisions of
POCSO Act the burden on the prosecution to prove guilt of
the Accused beyond reasonable doubt is not dispensed with.
10. In this case the victim as well as the Informant have
not supported the case of the prosecution and only evidence
remains medical evidence which does not indicate that, there
was a conclusive proof of the transmission of the said disease to
the victim by skin to skin contact made by the Accused with
the alleged Act committed by him. Having regard to these facts
the Appellant would have reasonable case for succeeding
during the hearing of the Appeal. The Appeal is not likely to
be taken up for short period of time. Consequently, the
following order.
ORDER
(i) The substantive sentence imposed against
the Appellant-Accused by judgment and order 30th
June 2025 passed by Additional Sessions Judge,
Dindoshi in Special POSCO Case No.444 of
N.S. Kamble page 6 of 7
901-IA-3211-2025 IN APEAL-790-2025.doc
2022, stands suspended till the decision of the
Appeal.
(ii) The Appellant-Abdulmabood Ghoorali
Shaikh be enlarged on bail on furnishing PR Bond
of Rs.15,000/- with one surety in the like amount.
(iii) Bail before the Trial Court.
11. Observations made are prima facie in nature and
would not bind parties during final hearing.
(R.M. JOSHI, J.)
N.S. Kamble page 7 of 7
