[Cites 20, Cited by 0]
Bombay High Court
Salman Sherkhan Pathan vs The State Of Maharashtra And Another on 16 April, 2026
2026:BHC-AUG:16100
{1} CR APPEAL 289 OF 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 289 OF 2024
. Salman Sherkhan Pathan
Age: 21 years, Occu.: Labour,
R/o. Jai Bhavani Nagar, Andhaner,
Tq.Kannad, District Aurangabad. ....Appellant
Versus
1. The State of Maharashtra
2. X.Y.Z. .....Respondents
.....
Advocate for Appellant : Mr. Satej S. Jadhav
APP for Respondent no.1 : Mr.N.S.Tekale
Advocate for Respondent no.2 : Ms.Shilpa Awachar (appointed)
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 07 APRIL, 2026
PRONOUNCED ON : 16 APRIL, 2026
JUDGMENT :
1. Convict for offence under Sections 363, 376(2)(n) of the
Indian Penal Code (IPC) and under Sections 4(1), 6, 8, and 12 of the
Protection of Children from Sexual Offences Act (POCSO Act),
challenges judgment and order of conviction dated 29-04-2023,
passed by learned Special Judge (POCSO), Aurangabad in Special
Case (POCSO) No.142 of 2017.
BRIEF FACTS OF THE CASE
2. In brief, case of prosecution in trial Court was that, in 2017,
{2} CR APPEAL 289 OF 2024
PW1 victim was studying in 11th standard. That, PW2 father of
victim reported Police on 17-04-2017 that his daughter, who had left
the house to attend coaching classes, had not returned home and on
due search, when she was not found, on his complaint, offence of
kidnapping was registered against unknown person. On his
supplementary statement dated 18-04-2017, accusations were made
against present appellant that victim was removed from her parent's
custody and guardianship and on enquiry, his daughter told that, on
the pretext of performing marriage, accused had sexual intercourse
with her twice/thrice. Making above accusation as a source, Kannad
Police Station, who had initially registered Crime bearing No.82 of
2017, for offence under Section 363 of the IPC, added further offence
under Sections 366A, 376 of the IPC and under Sections 4, 6, 8 and
12 of the POCSO Act.
Trial was conducted during which prosecution has adduced
evidence of in all five witnesses and also relied on documentary
evidence like panchanama, scientific report etc.
On appreciation of such evidence, vide judgment and order
dated 29-04-2023, charges are held to be proved and as such order of
conviction and sentence has passed as spelt out in the operative
order. Now, exception is taken to the same by filing present appeal.
{3} CR APPEAL 289 OF 2024
SUBMISSIONS
On behalf of appellant :
3. Mr.Satej Jadhav, learned counsel for appellant would open his
argument by submitting that, here, there is serious dispute about age
of the victim. According to him, there is no conclusive proof of the
age of the victim so as to hold her as "child" within definition of the
POCSO Act. He pointed out that, victim's evidence is silent on exact
date of birth or her age. That, there is solitary documentary piece of
evidence in the form of school admission extract/leaving certificate.
He pointed out that, date of admission is shown as 12-06-2006
whereas said document shows that victim left school on 14-06-2010.
Further according to him, going by the date of occurrence, girl is
shown to be of 16 years and 3 months old, but according to him,
medical evidence of prosecution suggests her to be of 17 years of age.
4. It is his further submission that, admittedly, from the very tenor
of the victim's evidence and more particularly, the nature of answers
given by her in cross-examination, it is apparent that there were love
relations. That, victim admitted that she liked accused. He pointed
out that, she had accompanied accused from the vicinity of Bus Stand
by wearing a Burqa and has travelled to Aurangabad without raising
any alarm. That, after being apprehended by Police, at the instance of
{4} CR APPEAL 289 OF 2024
parents, she has developed a story of being taken away on the pretext
of marriage. That, her version is improvised one.
5. He would further submit that, here, victim has merely deposed
about accused maintaining physical relations with her. That, she has
not stated that, it was against her wish or without her consent and as
such according to him, there are reasons to hold that there being love
relations, she was consenting party to whatever act she terms it. He
pointed out that, medical evidence has ruled out use of force or to be
any signs of use of force and on this count, he very emphatically
submitted that here, examining Doctor is not witness before this
Court and only medical examination papers are placed on record and
by inviting attention of this Court to remark over the same, he
pointed out that there are no signs of use of force and in absence of
any further scientific evidence or base, mere opinion has been
expressed that sexual intercourse cannot be ruled out.
6. He would further submit that, here, clothes of victim and
accused are said to be seized, but according to him, there is variance
in the exhibits of the clothes, which are seized and sent by
Investigating Officer to Chemical Analyzer (CA) and the reasons and
analysis issued by Laboratory. He pointed out that, Articles of
{5} CR APPEAL 289 OF 2024
undergarments of both accused and victim are numbered differently
and it does not tally with the description of Articles received by CA.
He pointed out that, though semen is detected on Article 7, as per
Investigating Officer's own communication, it is undergarment of
accused and therefore, there is nothing unusual in finding semen
stains over it. On above count also, he questions credibility and
veracity of the scientific evidence.
7. Lastly, he submitted that, here, victim has merely deposed
about physical relations without categorically stating that there was
sexual intercourse. That, for attracting offence of rape, penetration is
sine qua non. According to him, there was no evidence to show that
there was aggravated sexual attack so as attract rigors of Section 6 of
POCSO Act. Above ambiguous term used by victim creates doubt
about very charge of Sections 4 and 6 and the POCSO Act for which
conviction is recorded. Thus, according to him, there is no
penetrative sexual assault and medical expert merely expressed
possibility of sexual intercourse and as it is not proved beyond
reasonable doubt, he seeks indulgence of this Court.
On behalf of Respondent No.1/State and Respondent No.2/victim:
8. Learned APP and learned counsel for respondent no.2, who
{6} CR APPEAL 289 OF 2024
would support the judgment and order of conviction, submitted that
prosecution has indeed proved before trial Court that victim was
below 18 years of age. That, there is overwhelming evidence on age
of victim. That, victim has herself deposed that after taking the
victim from Bus Stand to a room, there was forceful intercourse with
her not once but twice. According to them, in view of proved age of
victim, her consent is immaterial. That, here, Section 5(l) of the
POCSO Act was clearly attracted. That, medical evidence finds
support from CA report.
Learned APP has specifically pointed out that, before the
learned trial Court, no issue about age or minority of the victim was
raised, rather extract of school admission register gathered by
Investigating Officer has been admitted by defence and as such, it is
his submission that now it is not open for accused to raise issue about
age of victim. Therefore, while justifying the order of conviction, he
prays to dismiss the appeal for want of merits.
BRIEF ACCOUNT OF EVIDENCE IN TRIAL COURT
9. PW1 Victim deposed at exh.17 that, she took education upto
12th Standard in educational institution named by her in testimony.
According to her, in 2017, while she was in 11 th Standard, she was
{7} CR APPEAL 289 OF 2024
attending coaching classes at Kannad and that she knew accused,
who was resident of Bhavani Nagar, Andhaner and she identified him
in the Court. According to her, one day, he met her and induced her
for marriage. On 16-04-2017, when she had come to attend
coaching classes at Kannad, accused met her at S.T.Stand and he took
her to Baba Petrol Pump at Aurangabad and from there, they went to
Ranjangaon where he took her in a room in the building and he had
forceful physical relations with her. He locked her in the room and
returned to Kannad. On next night, he again came there and had
forceful sexual intercourse. Police of Kannad Police Station came
there, her statement was recorded and then she was referred for
medical examination.
While under cross-examination she is unable to state whether
she reported date of birth in her statement to Police. She admitted
that she wore Burqa when she came to Aurangabad. She admitted
that she met accused previously and there were talks between them
during which accused said that he wanted to marry her. She is
unable to state whether there was marriage proposal or about he
giving any threats. She admitted wearing Burqa. She is unable to
state whether she was loving accused or not and whether he liked
her and whether he accordingly gave marriage proposal to her. She
{8} CR APPEAL 289 OF 2024
categorically denied that she was willing to marry him. She
answered that she did not inform her parents about proposal of
accused to marry her. In paragraph 4 of cross-examination, she
denied that accused caught her hand and pulled her at Bus Stand but
stated that he caught her hand and took her to Bus Stand. She was
unable to remember telling anybody about accused taking her
forcefully. She unable to give details of exact building in which
accused took her and that they did not meet other residents of that
building. She also denied meeting persons whose names were
suggested by defence counsel. She is unable to remember when
exactly there were physical relations with her. She admitted that
when accused went to Kannad, she was alone in the room. She is
unable to give distance between Baba Petrol Pump to said room. She
admitted about not reporting to residents of the building about
forceful sexual relations with her. In cross-examination again she
stated that accused had physical relations with her twice. Rest is all
denial.
10. PW2 Informant/father of victim deposed at exh.20 about his
daughter leaving house to attend coaching classes at 06:45 a.m. on
16-04-2017 but not returning, hence, enquiry and search being done
and then he lodging report exh.22. He stated that on 18-04-2017,
{9} CR APPEAL 289 OF 2024
his daughter was found at Datta Nagar in Ranjangaon and his
daughter was brought by Police. He deposed that, he made enquiry
with his daughter, who told that she was induced by accused to
perform marriage and also informed about sexual physical relations
twice/ thrice.
While under cross-examination, he admitted that he did not
give date of birth of his daughter to the police. He also answered
that his daughter never informed that boy was demanding for
marriage. He answered that, when his daughter and accused were
found that time he learnt that accused was from Mohammedan
community.
PW3 Walmik Shirsat is pancha to spot panchanama, but he did
not support prosecution.
PW4 Rajnikant Sonwane is another pancha to the panchanama
of house at exh.29
PW5 Sunil Jagannath Pawar is the Investigating Officer, who
deposed about steps being taken during entire investigation till
chargesheeting accused.
ANALYSIS
11. It is pertinent to note that, here, shockingly neither prosecution
nor learned trial Judge took care to not to disclose the name and
{10} CR APPEAL 289 OF 2024
identity of the victim. Both were expected to redact the identity of
the victim, which they apparently have failed. Surprisingly, inspite of
repeated guidelines, the same are not adhered to.
12. On going by nature of charges and the provisions of the
POCSO Act being invoked, as usual the fundamental duty of
prosecution is to prove the minority of the victim. It is the foremost
duty of Special Court conducing trial to get ascertained that
prosecution has proved victim to be below 18 years of the age.
Therefore, even in appeal, more particularly, in view of objection
raised on the point of minority of the victim, it is necessary to see
whether victim is proved to be a "child" as provided and defined
under the POCSO Act.
Here, it is pertinent to note that, during trial, accused has
admitted document of extract of school admission register and it is
marked as exh.39. In this school extract, which is gathered by
Investigating Officer regarding which he has deposed in his
examination-in-chief about collecting Pravesh Nirgam Registrar
extract, date of birth of victim is shown as 22-12-2000. Victim, who
deposed at exh.17 has also given her age in her examination-in-chie-
as 22-12-2000. Mere failure of father to give date of birth in the FIR
for offence under Section 363 of the IPC, will not wipe out or create
{11} CR APPEAL 289 OF 2024
doubt about above document. By admitting dcoument at exh.39, in
the considered opinion of this Court, accused has forfeited his right
to again question the age of victim, when he has on his own accord
admitted the said document.
The Hon'ble Apex Court in the case of Shyam Narayan Ram v.
State of U.P. and Anr. Etc., 2024 INSC 800, while deciding SLP (Cri.)
Nos.16282-16284 of 2023, after reproducing Section 294 of the
Cr.P.C., has observed in para 15 as under :
"A bare reading of aforesaid provision, in particular, sub-section (3)
provides that where genuineness of any document is not disputed,
such document may be read in the evidence in an enquiry, trial or
other proceedings under this Court without proof of signature of the
signature of the person to whom it purports to be signed. That is to
say that if authors of such document does not enter the witness box to
prove their signature, the said documents could still be read in
evidence. Further, under the proviso the Court has the jurisdiction in
its discretion to require such signature to be proved. In the present
case, the document filed by investigating agency were all public
documents duly signed by public servant in their respective capacities
either as Investigating Officer or doctor conducting autopsy or other
police officers preparing e memo of recoveries etc. As such the Trial
Court had rightly relied upon the same and exhibited them in view of
specific repeated stand taken by defence in admitting the genuineness
of the said documents. In so far as Police papers which have been
signed by the private persons like informant, the same have been duly
proved."
Further in paragraph nos.18, 19 and 20, the Hon'ble Apex
{12} CR APPEAL 289 OF 2024
Court, by taking recourse to its own previous judgments, has
observed as under:
"18. Coming back to the applicability of section 294 CrPC, reference
may be had to the following judgments of this Court in the case of
Sonu alias Amar vs. State of Haryana, (2017) 8 SCC 570 wherein this
Court had held in para 30 as follows:
"30. Section 294 of the Cr.P.C. 1973 provides a procedure for
filing documents in a Court by the prosecution or the accused.
The documents have to be included in a list and the other side
shall be given an opportunity to admit or deny the genuineness
of each document. In case the genuineness is not disputed, such
document shall be read in evidence without formal proof in
accordance with the Evidence Act."
19. Further, in the case of Shamsher Singh Verma vs. State of
Haryana, (2016) 15 SCC 485, this Court held in para 14 as under:
"14..... It is not necessary for the court to obtain admission or denial
on a document under sub-section (1) to Section 294 CrPC personally
from the accused or complainant or the witness. The endorsement of
admission or denial made by the counsel for defence, on the
document filed by the prosecution or on the application/ report with
which same is filed, is sufficient compliance of Section 294 CrPC.
Similarly on a document filed by the defence, endorsement of
admission or denial by the public prosecutor is sufficient and defence
will have to prove the document if not admitted by the prosecution. In
case it is admitted, it need not be formally proved, and can be read in
evidence. In a complaint case such an endorsement can be made by
the counsel for the complainant in respect of document filed by the
defence."
20. Also, this Court in the case of Akhtar vs. State of Uttaranchal,
(2009) 13 SCC 722, has held in para 21 as under:
{13} CR APPEAL 289 OF 2024
"21. It has been argued that non-examination of the concerned
medical officers is fatal for the prosecution. However, there is no
denial of the fact that the defence admitted the genuineness of
the injury reports and the post-mortem examination reports
before the trial court. So the genuineness and authenticity of
the documents stands proved and shall be treated as valid
evidence under Section 294 of the CrPC. It is settled position of
law that if the genuineness of any document filed by a party is
not disputed by the opposite party it can be read as substantive
evidence under sub-section (3) of Section 294 CrPC.
Accordingly, the post-mortem report, if its genuineness is not
disputed by the opposite party, the said post-mortem report can
be read as substantive evidence to prove the correctness of its
contents without the doctor concerned being examined."
Applying the same analogy, when defence has admitted
genuineness of Pravesh Nirgam Extract wherein date of birth of
victim is reflected, in the considered opinion of this Court, learned
trial court has committed no error whatsoever in taking the same
document into account while ascertaining the date of birth of victim.
13. As regards to offences under Sections 363 and 376(2) of the
IPC as well as offence under Sections 4(1), 6, 8, 12 of the POCSO
Act is concerned, when once it is proved that victim was a "minor",
her removal to any other place without the consent of guardian
would gravitate the offence of kidnapping.
{14} CR APPEAL 289 OF 2024
14. Again for ascertaining whether offence under 363 and 376(2)
of the IPC as well as offence under Sections 4(1), 6, 8, 12 the POCSO
Act, are committed, one has to fall back on evidence of victim and
medical evidence. Here, victim has stated that, after taking her to a
room in a building, accused had forceful sexual relations. She
deposed that, before accused went to Kannad, he had locked her in a
room and during his second visit in night on next day, he had forceful
sexual relations with her. The moment minor victim testifies about
forceful act, rigors of rape and the provisions of the POCSO Act get
attracted. Even if there is consent or no resistance, victim to be
proved as a "minor", the same is not of much significance.
15. Learned counsel for appellant was very critical in questioning
the prosecution case by submitting that, there is no evidence about
penetrative sex, which is sine qua non and on such count, he deploys
the phrase used by victim "physical relations". He tried to submit
that, such term is not suggestive of sexual intercourse. Above
submission has no substance. Such phrase is usually used to denote
that there was sexual intercourse and it has no other meaning.
Sometimes victim refrains from using direct words like having sex, or
committing rape by describing the nature of act. Hence, above
ground also has no force.
{15} CR APPEAL 289 OF 2024
16. As regards to submission that, there were love relations and
that victim had willingly accompanied accused, in the considered
opinion of this Court, merely accepting once love does not mean that
there is consent for any other act of physical relations. There being
admission of love does not automatically mean that victim has
consent even for sexual relationship. Here, it is pertinent to note that
victim has specifically deposed that there was forceful sexual
relations and therefore, it cannot be said to be a consensual act.
17. As regards to controversy tried to be raised about mix up of
undergarments of accused and victim, which is on the face of seizure
memo and the CA's report, cannot be given undue importance, more
particularly, when there is testimony of victim about forceful sexual
relations, which are worthy of credence.
18. It is fairly settled position that there is no rule of law that
testimony of victim cannot be acted upon without corroboration of
material particulars. Even in absence of medical evidence or evidence
about no injury or signs of force, still charges can be said to be
proved if the testimony of the victim inspires confidence. Law to this
extent has been expounded and settled in numerous judgments and
few could be named as under:
{16} CR APPEAL 289 OF 2024
(a) State of Maharashtra v. Chandrapraksh Kewalchand
Jain, AIR 1990 SC 658;
(b) State of U.P. v. Pappu alias Yunus and another, AIR
2005 SC 1248,
(c) State of Punjab v. Gurmit Singh and others, AIR
1996 SC 1393
(d) Vijay @ Chinee v. State of Madhya Pradesh, (2010) 8
SCC 191.
Here, as stated above, victim has deposed about forceful
sexual intercourse not once but twice.
19. For above reasons, on complete re-appreciation of evidence, it
cannot be said that there is error on the part of learned trial Court in
accepting the case of prosecution as proved. No case being made out
on merits, appeal deserves to be dismissed. Accordingly, following
order is passed :
ORDER
(I) Criminal Appeal stands dismissed.
(II) Fees of the learned counsel appointed for respondent
no.2 is to be paid through the High Court Legal Services
Sub-Committee, Aurangabad, as per Rules.
( ABHAY S. WAGHWASE )
JUDGE
SPT
