Shabbir S/O Babbu Shaha vs The State Of Maharashtra, Through ...
2026 Latest Caselaw 1222 Bom

Bombay High Court

Shabbir S/O Babbu Shaha vs The State Of Maharashtra, Through ... on 4 February, 2026

2026:BHC-NAG:1778


                                                      1                                cr.appeal.165.24-J.odt


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


                                    CRIMINAL APPEAL NO. 165 OF 2024



                    Shabbir Babbu Shaha,
                    Aged about 30 years, Occupation : Labour,
                    R/o. Ward No.13, Indira Nagar,
                    Tah. Narkhed, District - Nagpur.                             ... APPELLANT

                              ...VERSUS...
                    State of Maharashtra,
                    Through Police Station Officer,
                    Police Station, Narkhed,
                    Tah. Narkhed, District - Nagpur.                             ... RESPONDENT
              ------------------------------------------------------------------------------------------------
              Mr. S. D. Chande, Advocate for Appellant.
              Ms. S. S. Dhote, A.P.P. for Respondent/State.
              -----------------------------------------------------------------------------------------------

              CORAM : NEERAJ P. DHOTE, J.
              JUDGMENT RESERVED ON : 22.01.2026
              JUDGMENT PRONOUNCED ON : 04.02.2026


              JUDGMENT :

1. This is an Appeal under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, 'Cr.P.C.') against the Judgment

and Order dated 11.04.2023 passed by the learned Extra Joint

Additional Sessions Judge, Special Court No.2 (POCSO), Nagpur in

Special POCSO Case No.304/2020 convicting and sentencing the

Appellant as follows :

2 cr.appeal.165.24-J.odt

"i) The accused Shabbir Babbu Shaha, aged 27 years, Occ. Labour, R/o. Ward No. 13, Indira Nagar, Narkhed, District Nagpur, is hereby convicted under Section 235(2) of Cr.P.C. for the offence punishable Section 376 of IPC in Crime No. 124/2020 registered by Narkhed Police Station and sentenced to suffer RI for a period of Seven years and to pay fine of Rs. 3000/- (Rs. Three thousand only), I/d. SI for one month.

ii) The accused Shabbir Babbu Shaha, is hereby convicted for the offence punishable u/s. 354 of IPC and sentenced to suffer RI for a period of one year and to pay fine of Rs. 1,000/- (Rs. One thousand only) I/d. SI for one month.

iii) The accused Shabbir Babbu Shaha, is hereby convicted for the offence punishable u/s. 452 of IPC and sentenced to suffer RI for a period of one year and to pay fine of Rs. 500/- (Rs. Five hundred only) I/d. SI for 15 days.

iv) The accused Shabbir Babbu Shaha, is hereby convicted for the offence punishable u/s. 323 of IPC and sentenced to suffer RI for a period of six months and to pay fine of Rs. 500/- (Rs. Five hundred only) I/d. SI for 15 days.

v) The accused Shabbir Babbu Shaha is acquitted for the offence punishable u/s. 376(2) (j) (i), 376(3) of IPC and sec. 4 and 12 of the POCSO Act, 2012, for want of proof of minority (age) of the victim u/s. 2(d) of the Act.

vi) ...............

vii) ...............

viii) ...............

ix) ..............."

3 cr.appeal.165.24-J.odt

2. The prosecution's case as revealed from the police report is

as under :

a] The Prosecutrix was residing with her mother and sister at

the address given in the police report. The Prosecutrix was taking

education in 8th standard in the year 2020. On 19.03.2020, in the

afternoon, while the Prosecutrix was returning home, she met her

friend P.W.4 - Hitesh Kishore Shrirame. While they were talking, the

Appellant came there and asked the Prosecutrix as to what she was

doing there and threatened that, he will show the video of both of

them i.e. the Prosecutrix and P.W.4 - Hitesh, to her mother and told

her that, he will come to her house and left. On the same day,

between 3.00 p.m. and 3.30 p.m., when the Prosecutrix was at her

home with her younger sister, the Appellant came to her house and

enquired whether the Prosecutrix's mother was present. When the

Prosecutrix told him that, her mother was not present, the Appellant

told her that, he was having the video of hers with P.W.4 - Hitesh

and asked the Prosecutrix to accompany him or else he will circulate

the said video in the locality. The Appellant caught hold the hand of

the Prosecutrix and forcibly took her on his motorcycle towards the

Pimpalgaon Dam. When the Prosecutrix asked the Appellant to show

the video, the Appellant slapped her on her cheek. Thereafter, the

Appellant committed forcible rape on her by removing her clothes.

4 cr.appeal.165.24-J.odt

The Appellant threatened her not to disclose the said incident to

anyone or he will circulate the said video. Thereafter, the Appellant

brought the Prosecutrix to her house and he left. After the mother of

Prosecutrix came home, the Prosecutrix informed her the incident.

The Prosecutrix and her mother went to the Police Station and lodged

report against the Appellant and crime bearing No.0124/2020 came

to be registered with Narkhed Police Station for the offences

punishable under Sections 363, 323, 376(2)(j) and 376(3) of the

Indian Penal Code, 1860 (for short, 'IPC') and for the offence

punishable under Section 4 of the Protection of Children from Sexual

Offences Act, 2012 (for short, 'POCSO Act').

b] The Prosecutrix was referred for medical examination.

Her samples were collected. The Spot Panchanama was drawn. The

Appellant came to be arrested. The statement of witnesses were

recorded. The clothes of the Prosecutrix and that of the Appellant

came to be seized. The said articles were referred for chemical

analysis. On completion of the investigation, the Appellant came

to be chargesheeted. The learned Trial Court framed the Charge

against the Appellant for the offences punishable under Sections

452, 323, 376, 376(2)(i)(j) and 354 of the Indian Penal Code

and for the offences punishable under Section 4 and 12 of the

POCSO Act below Exhibit-15. The Appellant pleaded not guilty and 5 cr.appeal.165.24-J.odt

claimed to be tried. To prove the Charge, the prosecution examined

in all ten 10 witnesses and brought on record the relevant documents.

After the prosecution closed their evidence, the statement of the

Appellant came to be recorded under Section 313 of the Cr.P.C. On

appreciation of the evidence available on record, the learned Trial

Court passed the impugned Judgment and Order.

3. Heard the learned Advocate for the Appellant and the

learned A.P.P. for the prosecution. Scrutinized the evidence available

on record.

a] According to the learned Advocate for the Appellant, as

the Appellant saw the Prosecutrix talking with her boy friend P.W.-4,

the Prosecutrix lodged the false report against the Appellant. The

P.W.-4 denied that, he was the boy friend of the Prosecutrix. In the

history to the Medical Officer by the Prosecutrix some different name

of the accused is told. The mother was not the eye witness to any of

the incident. The Prosecutrix's sister though was examined by the

prosecution before the Trial Court, her statement was never recorded

by the police during the course of the investigation. The Prosecutrix's

testimony do not inspire confidence. The medical evidence do not

support the version of Prosecutrix. The Appellant is entitled for

acquittal and the Appeal be allowed.

6 cr.appeal.165.24-J.odt

b] It is submitted by the learned A.P.P. that, the identity of

the Appellant was not in dispute. The Prosecutrix was under threat

from the Appellant and, therefore, she accompanied the Appellant on

his motorcycle. The Panchanama shows that, the colour of the

motorcycle matched the colour deposed by the Prosecutrix. The

medical evidence shows the injury on the cheek of the Prosecutrix,

which corroborates her testimony that, the Appellant slapped her.

P.W.4 - Hitesh identified the Appellant and so the Appellant's

presence on the day of incident was proved. The medical evidence

shows that, there was possibility of sexual assault. The evidence of

the Prosecutrix's sister corroborates the Prosecutrix's testimony. No

interference was called for in the impugned Judgment and Order and

the Appeal be dismissed.

4. Undisputedly, the Appellant has been acquitted from the

offence punishable under Section 376(2)(i)(j), 376(3) of the IPC and

for the offence punishable under Section 4 and 12 of the POCSO Act.

The Prosecutrix is examined as P.W.2. According to the Prosecutrix,

on 19.03.2020, while she was returning home from her friend's house

and talking with P.W.4 - Hitesh, the Appellant came there and asked

her as to what she was doing and told her that, he will show her

video to her mother and informed her that he will come to her house

and left away. In between 3.00 p.m. and 3.30 p.m., when she was at 7 cr.appeal.165.24-J.odt

her home with her sister, the Appellant came to her house and

enquired whether her mother was present at home. When the

Prosecutrix told him that, her mother was not present, the Appellant

threatened her by saying that, he was having her video with P.W.4 -

Hitesh and asked her to accompany him or else he will circulate the

said video in the locality. The Appellant caught hold the hand of the

Prosecutrix and forcibly took her on her motorcycle towards

Pimpalgaon Dam.

5. The evidence of the Prosecutrix further shows that, the

Appellant took her near the shrubs and steps of the Dam. When the

Prosecutrix asked him to show the said video, the Appellant slapped

the Prosecutrix on her cheek/face. The Appellant forcibly committed

rape on the Prosecutrix by removing her clothes. The Appellant

threatened her that, she should come whenever he will call or else he

will circulate the video in the public. Thereafter, the Appellant

dropped the Prosecutrix in front of her house. She informed her

mother about the incident and the First Information Report below

Exhibit - 32 came to be lodged with the concerned Police Station. She

was referred for medical examination. Her statement under Section

164 of the Cr.P.C. was recorded. Her clothes were seized by the

police.

8 cr.appeal.165.24-J.odt

6. P.W.4 - Hitesh Shrirame is the friend of the Prosecutrix.

His evidence shows that, on the day of incident, he and Prosecutrix

met near Narayan Hall. After some times, the Prosecutrix left. The

Appellant came there and asked him as to why he was talking with

the Prosecutrix and threatened him not to talk with the Prosecutrix.

The Appellant threatened him that, he will inform his father about

the same and left and this witness proceeded to his work.

7. The testimony of the Prosecutrix that, the Appellant

stopped when she was talking with P.W.4 - Hitesh is not corroborated

by the testimony of P.W.4- Hitesh. The testimony of the Prosecutrix

and P.W.4 are not consistent with each other on that aspect. The

evidence of P.W.4 - Hitesh shows that, after the Prosecutrix left, the

Appellant came to him. Moreover, the testimony of the Prosecutrix

that, the Appellant came when she was talking with P.W.4 - Hitesh,

was an improvement as can be seen from the cross-examination of the

Investigating Officer P.W.7 - Sonali P. Jagtap. Therefore, it is clear

that, the testimony of the Prosecutrix that the Appellant threatened

her while she was talking with P.W.4 - Hitesh, is required to be seen

with doubt.

8. By examining P.W.1 - Uttam T. Madankar, the Panch

witness, the prosecution has brought on record the Spot Panchanama

below Exhibit-25. The evidence of this Panch witness shows that, the 9 cr.appeal.165.24-J.odt

spot was shown by the Prosecutrix. It is clear from the Spot

Panchanama, which is proved through the evidence of this Panch

witness that, the spot of incident was the stony place at of the Dam

surrounded by shrubs. It has come in the cross-examination of the

Prosecutrix that, on the spot of incident, there were shrubs and

thorns. It is, therefore, clear that, the spot of incident was the place

having stones and shrubs. However, strangely, the medical evidence

do not show any injury on the person of the Prosecutrix. P.W.5 -

Dr. Trupti M. Wankhede was the Medical Officer at Meyo Hospital,

Nagpur. Her evidence shows that, on 20.03.2020, the Prosecutrix was

brought by the Women Police Constable for medical examination and

on recording the history, she medically examined the Prosecutrix.

Her evidence shows that, if penetrative sexual assault take place on

rough place, then possibility of scratches and injury on the backside

cannot be ruled out. She noticed bruises on the cheek of the

Prosecutrix and found no injury on the genital part of the Prosecutrix.

Her evidence shows that, no violence marks were found on the

private part of the Prosecutrix except the mark on her cheek. The

Medical Examination Report of the Prosecutrix is brought on record in

the testimony of this Medical Officer at Exhibit -27. The paragraph

Nos.17 and 18 from the said medical report is reproduced below :

10 cr.appeal.165.24-J.odt

"17. Examination for Injuries on the body if any

Scalp examination for areas of tenderness (if hair pulled out/dragged by hair) Facial bone injury : orbital blackening, tenderness Petechial haemorrage in eyes and other places Lips and Buccal Mucosa/Gums No evidence of any external Injury.

Behind the ears Ear drum Neck, Shoulders and Breast Upper limb Inner aspect of upper arms Inner aspect of thighs Lower limb Buttocks Other, please specify

18. Local examination of genital parts/other orifices :

A. External Genitalia : Record findings and state NA where not applicable.

Body parts to be examined
Urethral meatus                             Normal
Labia majora                                Normal
Labia minora                                Normal
Fourchette & Introits                       Normal
Hymen Perineum                              Intact, No evidence of any tear, injury
External Urethral Meatus                    Normal
Penis
Scrotum
Tests                                           N.A.
Clitoropenis
Labioscrotum
Any Other

9. The above medical evidence shows no injury so as to

corroborate the testimony of the Prosecutrix that, the Appellant 11 cr.appeal.165.24-J.odt

forcibly raped her. The above referred columns show no injury on the

Prosecutrix. The above Chart at Serial No.18 from the medical report

shows that, the hymen of Prosecutrix was intact, neither there was

any injury nor any tear. Except the bruises on the cheek, no injury or

marks of violence were noticed by the Medical Officer when she

examined the Prosecutrix on the very next day of the incident.

10. The evaluation of the above referred evidence shows that,

the possibility of exaggeration by the Prosecutrix cannot be ruled out.

Firstly, there is no corroboration to her evidence by P.W.4 in respect

of coming of the Appellant while she was talking with P.W.4- Hitesh.

Secondly, though she deposed of forcible rape by the Appellant on

her on the stony and thorny place, not a single injury was found on

her person though she deposed that, the said act of forcible rape was

done after removing her clothes. It is strange and makes the

Prosecutrix version of rape doubtful. The Prosecutrix is the witness,

who cannot be wholly relied. However, her testimony that, the

Appellant entered her house, caught hold her hand and slapped her

finds corroboration from the bruises on her cheek. From the above

evidence, it is clear that, the Prosecutrix version in respect of rape is

liable to be discarded.

11. The other evidence is that of the Prosecutrix's sister -

P.W.10. The evidence of the Prosecutrix's sister shows that, her 12 cr.appeal.165.24-J.odt

previous statement was not recorded. The mother of the Prosecutrix

was not the eye witness to any of the incident. The other witnesses

are the police man, photographer, who deposed about the part played

by them during the course of investigation. The report of Chemical

Analyzer below Exhibit - 19 in respect of the clothes of the

Prosecutrix and the Appellant do not show any blood or semen on the

same. To put in other words, the C.A. reports are not incriminating in

nature.

12. The result of evaluation of the above discussed evidence

on record is that, the Appellant, is entitled for benefits of doubt in

respect of offence of rape. As regards the offence punishable under

Section 354 of the IPC (assault or criminal force to women with intent

to outrage her modesty) it is made out. As regards the conviction

under Section 452 of IPC (house- trespass committed after making

preparation to cause hurt, assault, or wrongfully restrain), the

essential ingredients of the same are not made out. However, the

Prosecutrix's testimony shows that, the offence punishable under

Section 451 of IPC (house-trespass in order to commit an offence

punishable with imprisonment) is made out. Further, the evidence of

the Prosecutrix proves the offence punishable under Section 323 of

the IPC (voluntarily causing hurt). The Appellant is entitled for

acquittal for the offence punishable under Section 376 and 452 of 13 cr.appeal.165.24-J.odt

the IPC. Hence, the following order :

ORDER

i] The Appeal is partly allowed.

ii] The conviction of the Appellant recorded by the

learned Trial Court for the offences punishable under

Sections 376 and 452 of the Indian Penal Code is

quashed and set aside.

iii] The conviction of the Appellant for the offence

punishable under Section 452 of the IPC is converted

to offence punishable under Section 451 and for the

same he is sentenced to suffer simple imprisonment for

one (1) year and to pay a fine of Rs.500/- in default to

suffer simple imprisonment for 15 days.

iv] The conviction and sentence recorded by the learned

Trial Court for the offences punishable under Sections

354 and 323 of the IPC is maintained.

v] The Appellant shall be entitled for the set off under

Section 428 of the Cr.P.C. for the period when he has

already undergone in jail.

vi] The Muddemal articles be dealt with as per the

directions of the learned Trial Court.

14 cr.appeal.165.24-J.odt

vii] Record and proceedings be sent back to the learned

Trial Court.

(NEERAJ P. DHOTE, J.)

RGurnule

Signed by: Mrs. R.M. MANDADE Designation: PA To Honourable Judge Date: 04/02/2026 10:50:09