[Cites 22, Cited by 0]
Bombay High Court
Sheikh Rahman Yakub Sheikh (Convict - ... vs The State Of Mah. Thr. Pso, Durgapur ... on 9 February, 2026
2026:BHC-NAG:2092
1 apeal641.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.641/2023
Sheikh Rahman Yakub Sheikh,
Convict No.C-10814, Aged about 69 Yrs.,
R/o Usegaon (Neri), Tah. Chimur,
District Chandrapur, at Present District
Prison, Nagpur. ... Appellant
- Versus -
1. The State of Maharashtra,
through P.S.O. Durgapur,
District Chandrapur.
2. XYZ through her Mother
in Crime No.182/17 registered
in P.S.O. Durgapur, Tah. & Distt.
Chandrapur. ... Respondents
-----------------
Ms. Shilpa P. Giratkar (Giripunje), Advocate (appointed) for the
Appellant.
Ms. Sneha Dhote, A.P.P. for the Respondent No.1/State.
Ms. Seema P. Dhotre, Advocate (appointed) for the Respondent No.2.
----------------
CORAM: NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT: 21.01.2026.
DATE OF PRONOUNCING THE JUDGMENT: 09.02.2026.
JUDGMENT
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 27.11.2021 passed by the learned Special Judge,
2 apeal641.2023.odt
Chandrapur in Special (POCSO) Case No.56/2017 convicting and
sentencing the Appellant as follows:-
"1] The accused Sheikh Rahman Yakub Sheikh, aged
about 63 years, R/o Usegaon (Neri), Tah. Chimur, Distt-
Chandrapur, At present Major Gate, Vaidyanagar,
Chandrapur, Tah. and Distt. Chandrapur, stands convicted
for the offences punishable under section 363 and section
376(2)(i) of the Indian Penal Code. He is also convicted
under section 5(1)(m) read with section 6 of the
Protection of Children from Sexual Offences Act, 2012
vide section 235(2) of the Code of Criminal Procedure.
The accused however, stands acquitted for the
offence punishable under section 376(2)(m) of the Indian
Penal Code and under sections 3(w)(i) and 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, vide Section 235(1) of the Code of
Criminal Procedure.
2] For the offence punishable under section 363 of
the Indian Penal Code he is sentenced to suffer rigorous
imprisonment for a period of 04 years and to pay a fine of
Rs.1,000/- (Rs. One Thousand only), in default of which
he shall undergo simple imprisonment for six months. For
the offences punishable under section 376(2)(i) of the
Indian Penal Code and under section 5(i)(m) read with
section 6 of the Protection of Children from Sexual
Offences Act, 2012 the accused is sentenced to suffer
rigorous imprisonment for a period of 14 years and to pay
a fine of Rs.2,000/- (Rs. Two Thousands only), in default
of which he shall undergo rigorous imprisonment for one
year.
3] Both the substantive sentences shall run
concurrently.
4] The seized property i.e. the clothes of the victim
and the accused being worthless be destroyed, after a
period of one year, if no notice is received from the
Hon'ble High Court regarding the pendency of any appeal.
3 apeal641.2023.odt
5] The accused has been in detention from
28.05.2017 till today. He shall be entitled to set-off for the
said period as stipulated under section 428 of Cr.P.C.
6) .....
7] .....
8) ....."
2. The prosecution's case, as reveled from the police report, is as
under:-
a) The First Informant was residing at Vaidya Nagar, Chandrapur
with her family comprising husband and two daughters. On
27.05.2017 in the evening around 8:00 p.m. when she had gone to
the place of labour strike, her elder daughter came to her. When
she asked the elder daughter about the younger daughter (Victim),
the elder daughter told her that, she asked the Victim to go home.
Ten to fifteen minutes thereafter, it started raining and the Informant
and her elder daughter returned home. The Victim was not at home.
The Informant searched for her. During the search, she noticed the
Victim with one neighbouring lady around 8:00 p.m. The said lady
handed over the Victim to the Informant. The Informant noticed
blood on the pant of the Victim and she enquired the reason for the
same. The Victim informed her that, one person took her to one
shop for giving something to eat and thereafter took her to one place
where he put his finger in her vagina and anus and thereafter said
person brought her near the shop and left. The Informant went to
the police station with the Victim. As the Victim was not feeling
well, the police asked the Informant to take her to the hospital.
Thereafter the Informant lodged the report with Durgapur Tahsil
Police Station, District Chandrapur and Crime bearing
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No.0182/2017 came to be registered against an unknown person for
the offence punishable under Sections 376(2)(i), 376(2)(j) and
376(2)(m) of the Indian Penal Code, 1860 (for short "I.P.C.") and for
the offence punishable under Section 6 of the Protection of Children
from Sexual Offences Act, 2012 (for short "POCSO Act") and for the
offence punishable under Section 3(2)(v) and 3(1) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for
short "SCST Act").
b) During the investigation, the spot-panchanama was drawn.
The clothes of the Victim came to be seized. The samples of the
Victim were drawn. The statement of the Victim was recorded. The
statement of the witnesses were recorded. The documents in respect
of the age of the Victim and the medical papers came to be seized.
The Appellant came to be arrested. The Appellant's clothes were
seized. The samples of the Appellant came to be drawn. The seized
articles were sent to the Chemical Laboratory for examination. On
completion of the investigation, the Appellant came to be
chargesheeted.
c) The learned trial Court framed the Charge against the
Appellant for the offence punishable under Sections 363, 376(2)(i),
376(2)(m) of the I.P.C., for the offence punishable under Section 6 of
the POCSO Act and for the offence punishable under Sections
3(w)(i) and 3(2)(v) of the SCST Act, below Exh.122. The Appellant
pleaded not guilty and claimed to be tried. To prove the Charge, the
prosecution examined in all 16 witnesses and brought on record the
relevant documents. After the prosecution filed the evidence closure
pursis, the learned trial Court recorded the statement of the
Appellant under Section 313(1)(b) of the Cr.P.C. The Appellant
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pleaded not guilty and claimed to be tried. The Appellant
examined 2 defence witnesses. After hearing both the sides and
appreciating the evidence available on record, the learned trial Court
passed the impugned judgment and order convicting and sentencing
the Appellant as above.
3. Heard the learned Advocate for the Appellant, the learned
A.P.P. for the State and the learned Advocate for the Respondent
No.2. Scrutinized the evidence available on record.
4. It is submitted by the learned Advocate for the Appellant that,
the age of the Victim was not in dispute. The crime was registered
against an unknown person. The Appellant was falsely implicated.
Though the blood samples were drawn, there was no DNA report.
The Appellant examined 2 defence witnesses, in support of his
defence. As the identity of the Appellant was not established the
impugned judgment and order be quashed and set aside. In support
of her submissions, she cited the decisions in Sharad Birdhichand
Sarda V/s. State of Maharashtra (1984) 4 SCC 116, Krishan Kumar
Malik V/s. State of Haryana (2011) 7 SCC 130 and Sudam alias
Rahul Kaniram Jadhav V/s. State of Maharashtra (2011) 7 SCC 125.
5. It is submitted by the learned A.P.P. that, the prosecution
proved that, the Victim was the 'child' at the time of incident.
Nothing has come in the cross-examination of the Victim and that of
the mother of the Victim and other material witnesses so as to shake
the prosecution's case. The suggestions put up by the defence were
denied. The Panchas for the clothes seizure were examined. The
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clothe of the Appellant was found stained with blood. The evidence
on record sufficiently proved the Charge. The defence evidence
could not create any dent in the prosecution's evidence. The
evidence brought on record by the prosecution established the
Charge and the presumption under Section 29 of the POCSO Act
comes into play. The Appellant failed to rebut the presumption. No
interference was called for in the impugned judgment and order and
the Appeal be dismissed.
6. It is submitted by the learned Advocate for the Respondent
No.2 that, she adopts the submissions made by the learned A.P.P.
The Victim was hospitalized for 5 days. The evidence on record
proved the Charge beyond doubt and the Appeal be dismissed.
7. When the Charge is for the penal section under the POCSO
Act, it is necessary for the prosecution to establish that, the Victim
was the 'child' as defined under Section 2(d) of the POCSO Act i.e.
below 18 years of age. To prove the date of birth and age of the
Victim, the prosecution examined P.W.12 Prakash N. Ivnake who was
working in the department of Births and Deaths Registration,
Chandrapur, Municipal Council as the Head Clerk since 1999. He
brought the Record of birth with him. His evidence shows that, the
entry of Victim's birth was at serial No.1163 and the date of birth
was recorded as 04.12.2011. The place of birth of the Victim was
Government Hospital, Chandrapur. The extract of the said register
was brought on record at Exh.86. He identified Exh.52 as the Birth
Certificate issued from his Department. Ignorance of this witness as
to on what basis the said entry was made and the said entry was not
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in his handwriting will not create any dent in his evidence as he
deposed on the basis of the record maintained by the public office
i.e. the Corporation. Nothing is brought on record so as to create any
doubt in respect of the said entry.
8. The mother of the Victim is examined as P.W.1. She deposed
that, the Victim's date of birth was 04.12.2011. There is no challenge
in the cross-examination of this witness to the date of birth. Nothing
is brought by the Appellant in the evidence to show that, the date of
birth of the Victim was different than the date of birth entered in the
record of the Municipal Corporation and deposed by the mother of
the Victim. Further there is no dispute in respect of the date of birth
of the Victim. Undisputedly, the crime was registered on 28.05.2017
for the incident prior to it. Thus, the prosecution successfully proved
that, the Victim was the 'child' at the time of incident.
9. Undisputedly, the crime was registered against an unknown
person. It is needless to state that, when the crime is registered
against the unknown person, it is for the prosecution to establish the
identity of the accused as the perpetrator of crime. The
prosecution's case largely rests on the testimony of P.W.2 Victim and
P.W. 3 the elder sister of the Victim. It is the case of prosecution that,
when Victim and her elder sister were playing, the Appellant took
the victim with him on the pretext of giving eatables and molested
her in the secluded area. The scrutiny of the testimony of the Victim
shows that, while she was playing with her elder sister and friends,
and she went near the shop of one Mohitkar, the Appellant who was
father of Tanvir, came to her and said that he will drop her to her
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mother and she accompanied him in the jungle near the school,
where the Appellant inserted his finger in her vagina and anus. The
said act resulted in the injury. Thereafter, the Appellant dropped
her near the shop of one Lalit. While she was proceeding towards
home, she met sister-in-law of Pinki. According to her, she disclosed
the incident to her mother and they went to the police station. Her
evidence shows that, her friend told that he was Tanvir's father.
She identified the Appellant as Tanvir's father. Her cross-examination
shows that, photo of Tanvir's father i.e. the Appellant was shown to
her. To the question that, police told her that it was Tanvir's father,
she responded in the affirmative and thereafter in the negative.
Though the evidence of the Victim shows that, she knew the
Appellant, the evidence of her mother who is examined as P.W.1 to
whom she met immediately after the incident shows that, the Victim
did not tell that the said person was the Appellant. She told her
mother that, one man committed the said act with her. If at all the
Appellant was known to the Victim, she would have disclosed his
identity to her mother.
10. The evidence of P.W.3 shows that, she was the elder sister of
the Victim. According to her, she was playing with the Victim and
other friends around 05:00 p.m. The Victim left their company by
saying that, she wanted to go to her mother and they both stopped
near the shop of one Manoj. From there the Victim proceeded by
saying that, she was going to her mother. The Appellant, who was
the Tanvir's father, came near the shop and by holding the Victim's
hand took her with him by saying that, he will drop the Victim to
their mother. Her evidence shows that, the Appellant took the
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Victim from near the shop of one Mohitkar. However, strangely, her
evidence shows that, when her mother asked where the Victim was,
she told that, the Victim was playing. Her evidence shows that,
Tanvir was her classmate and the Appellant used to come to the
school to drop him. Her evidence shows that, she knew the
Appellant. However, she did not disclose to her mother that, the
Appellant took the Victim with her. To the question in the cross-
examination that, when she went to the police station with her
father, the police took her aside and asked to tell where the Victim
had gone, she initially responded 'yes' and thereafter in the negative.
Though she replied to the question that, she did not see the
Appellant taking her sister by holding her hands in the affirmative,
she denied that, therefore, she did not tell the name of the Appellant
to her parents.
11. The evidence of P.W.3 elder sister of the Victim that, she
witnessed the Appellant taking the Victim with him gets falsified by
the testimony of P.W.1 who is the mother of Victim and that of P.W.3.
The mother's evidence shows that, on 27.05.2017 she had gone in
the strike in front of the Major Gate. Around 06.45 p.m. her elder
daughter (P.W.3) came to her and asked whether the Victim came to
her. To that she answered in the negative and asked P.W.3 where was
the Victim and P.W.3 told her that, she asked her to go home from
the road. P.W.3 sat near her. Due to rain, they both went home. This
evidence of the mother clearly shows that, though she enquired with
P.W.3 about the Victim, P.W.3 did not disclose that, the Appellant took
her with him.
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12. The evidence of P.W.5 father of the Victim shows that, on the
date of incident he returned home around 07.00 p.m. At that time,
P.W.3, who was his elder daughter, was playing outside the shop of
Mohitkar. P.W.1 and P.W.3 had come home. He enquired with his
wife i.e. P.W.1 about the Victim. To that P.W.1 responded that, the
Victim must be playing outside. His evidence shows that, they went
in the search of Victim in the different directions. After half an hour,
he returned home. On his way towards home, he noticed the crowd
outside his house and saw the Victim with P.W.1. Victim's clothes
were stained with blood. He asked the Victim as to what happened
and the Victim told him that, her stomach was paining and pointed
out towards her private part and told that, it was paining. His
neighbour Rama took the Victim and P.W.1 to the hospital. His
evidence shows that, he and P.W.3 went to the police station on
bicycle. The Victim and P.W.1 were not seen in the police station as
they had gone to the hospital. He asked P.W.3 to tell the truth as she
was also playing and to that, P.W.3 told him that, the Appellant took
the Victim with her. His evidence shows that, P.W.3 showed the
house of the Appellant to the police and the police called the
Appellant outside and P.W.3 pointed towards the Appellant and
police brought him to the police station. This evidence goes to show
that, neither the Victim nor P.W.3 disclosed about or against the
Appellant when he firstly met them. His evidence regarding asking
his elder daughter about the incident and she stated that, Tanvir's
father took the Victim was an omission.
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13. The evidence of P.W.4 Savita V. Bawne, who was the resident of
the same village and neighbourer of the Victim, shows that, on
27.05.2017 in between 07.30 to 07.45 p.m. she noticed that, the
Victim girl was playing with her elder sister and other friends. While
she was returning home after having Panipuri near Mohitkar's shop,
she noticed P.W.1 beating P.W.3. When she asked her the reason of
beating, P.W.1 told her that, P.W.3 came leaving the Victim. This goes
to show that, even at that point of time, it was not disclosed or
informed by P.W.3 that, the Appellant took the Victim with him. Her
further evidence shows that, after P.W.1 went home, she saw the
Victim running from near the shop of one Lalit and she came to her.
When she asked her where she had gone, the Victim was frightened
and crying and told her that, one uncle took her on the pretext of
giving chocolate.
14. The evidence of P.W.15 Sangita R. Kadam shows that, the
statement of the Victim's mother i.e. P.W.1 below Exh.15 was
recorded in the hospital. She recorded the statement of P.W.3 on
27.05.2017 and again recorded her supplementary statement on
28.05.2017. Her evidence shows that, the statement of Victim was
recorded on 31.05.2017. Though the evidence of P.W.14 Sushilkumar
K. Nayak, the Investigating Officer, also shows that, he recorded the
Victim's statement on 31.05.2017 after her discharge from the
hospital, the evidence of P.W.10 Dr. Anshuman V. Khobragade who
was the Medical Officer at the Government Medical College and
Hospital, Chandrapur and who examined the Victim on 27.05.2017
shows that, on examination of the Victim in the presence of P.W.1 the
Victim was found to be well oriented. However, there is no
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explanation for the delay in recording the statement of the Victim.
The evidence of P.W.14 Sushilkumar K. Nayak shows that, he
arrested the Appellant on 28.05.2017 at 07.33 a.m.
15. The evaluation of the above discussed evidence on record,
raises serious doubt about the involvement of the Appellant in the
crime. Though the crime was registered against an unknown person
and the Victim did not know the assailant, there was no prior
identification of the Appellant as the perpetrator of the crime by the
Victim except during the course of her substantive evidence. Though
her elder sister P.W.3 knew the Appellant, she remained altogether
silent when P.W.1 and P.W.5 (her parents) asked about the Victim.
Undisputedly, the incident was of the evening time. Even the
evidence of P.W.10 Dr. Anshuman V. Khobragade shows that, the
history given was that of sexual assault by unknown person. From
the evidence of the material witnesses, the presence of P.W.3 with the
Victim when the Victim was taken appears doubtful. Her silence and
asking P.W.1 mother about the Victim in the evening of the incident is
sufficient to demonstrate that, P.W.3 knew nothing as to with whom
the Victim went. On the facts and circumstances as discussed above
emanating from the evidence on record, the testimony of Victim and
P.W.3 cannot form the basis to establish that, the Appellant
committed the crime. The Appellant examined himself on oath and
his son as defence witness Nos.1 and 2, respectively. According to
them, they both went to work on the day of incident in the morning
and returned home by evening and the police came to their house in
the night and apprehended the Appellant. Though both of these
defence witnesses were cross-examined by the learned A.P.P. nothing
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has come on record to discard their testimony. The Appellant in the
cross-examination admitted that, the Victim's elder sister (P.W.3)
knew him as she used to study in the same school in which his son
Tanvir was studying. Their evidence appears natural. Their
testimony cannot be discarded or ignored because they are the
witnesses examined by the defence. Though reference of some
shops have come in the testimony of P.W.1, P.W.2 Victim, P.W.3 and
P.W.4, the shop owners or the persons present in the shop at the
relevant point of time are not examined by the prosecution. As the
evidence of the prosecution falls short of establishing the identity of
the Appellant as the perpetrator of the crime, there is no reason to
draw the presumption under Section 29 of the POCSO Act. Even if
the presumption is raised, the Appellant has been successful in
rebutting the same by examining the defence witnesses. From the
above discussion of the evidence of material witnesses the
involvement of the Appellant in the crime is highly doubtful.
16. The other piece of evidence brought on record by the
prosecution is the blood stains on the shirt of the Appellant. The
evidence of P.W.11 Shivkumar N. Gawandar shows that, the shirt of
the Appellant was seized under the Panchanama below Exh.82. The
evidence of this witness goes to show that, it was not pursuant to the
provisions of Section 27 of the Indian Evidence Act, 1872. His
evidence further shows that, he did not enter the house of the
Appellant and the police brought the shirt from the house. There is
evidence of P.W.16 Amol N. Baviskar, Assistant Chemical Analyzer,
who analyzed the blood samples of the Appellant and that of the
Victim. His evidence shows that, the blood group of both of them
14 apeal641.2023.odt
was 'B'. His evidence further shows that, he analyzed the blood on
the Victim's undergarment, top and shirt of the Appellant and found
that the blood stains on the clothes were of blood group 'B".
Therefore, the blood stain on the shirt seized during the course of
investigation cannot be an incriminating circumstance.
17. The other evidence is that of the Spot-Panch, Panch for seizure
of the clothes of the Victim, Doctor who examined the Appellant and
that of the Police Officers. The evidence of P.W.13 Dr. Ulhas D.
Borkar, who examined the Appellant, shows that, he did not find any
injury on the private part of the Appellant. That would be
inconsequential as it is nowhere the case of the prosecution that, the
private part was inserted by the assailant in the private part of the
Victim.
18. Re-appreciation of the evidence available on record as
discussed above leads to the only conclusion that, the prosecution
though established the sexual assault on the Victim through the
prosecution witnesses corroborated by the medical evidence of
P.W.10 Dr. Anshuman V. Khobragade showing clear signs of sexual
assault, the evidence on record do not establish that the Appellant
was the perpetrator of crime. To say in other words, the identity of
the Appellant as the person who sexually assaulted the Victim is not
established. At the cost of repetition, the evidence available on
record goes to show that, P.W.3 elder sister did not witness the Victim
going with a person, the Victim stating of assault by unknown
person, reference of unknown person in the history given to the
Medical Officer, lodging of the report against an unknown person
15 apeal641.2023.odt
and no identification of the Appellant by the Victim during the
course of investigation to corroborate the identification in the
substantive evidence leads to the only conclusion that the Appellant
is entitled for acquittal. There cannot be any dispute that, after
going through the medical evidence, the act of sexual assault was
serious. However, it is not possible to convict the Appellant on the
basis of such evidence on record which do not conclusively prove his
identity as the culprit. The prosecution's evidence falls short of
establishing the involvement of the Appellant in the crime. Thus, the
Appeal succeeds and following order is passed:-
ORDER
i) The Appeal is allowed.
ii) The conviction of the Appellant Sheikh Rahman Yakub Sheikh
for the offence punishable under Sections 363 and 376(2)(i) of the
I.P.C. and Section 6 of the POCSO Act is quashed and set aside.
iii) The Appellant Sheikh Rahman Yakub Sheikh is acquitted for
the offence punishable under Sections 363 and 376(2)(i) of the I.P.C.
and Section 6 of the POCSO Act.
iv) The Appellant is behind bars. He be released forthwith, if not
required in any other offence.
v) The record and proceedings be sent back to the learned trial
Court.
vi) The fees of the learned Advocate appointed for the Appellant
is quantified at Rs.10,000/-. Same be paid accordingly by the High
Court Legal Services Authority.
16 apeal641.2023.odt
vii) The fees of the learned Advocate appointed for the
Respondent No.2 is quantified at Rs.7,500/-. Same be paid
accordingly by the High Court Legal Services Authority.
(NEERAJ P. DHOTE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 09/02/2026 10:58:13
