Shabir Shaha Mehaboob Shaha vs State Of Maharashtra
2026 Latest Caselaw 2771 Bom

Bombay High Court

Shabir Shaha Mehaboob Shaha vs State Of Maharashtra on 17 March, 2026

2026:BHC-NAG:4390


                                                   1                               Cr.Appeal No.98.25-J.odt


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


                                     CRIMINAL APPEAL NO. 98 OF 2025



                    Shabbir Shaha Mehaboob Shaha,
                    aged about 70 Years, Occ.-Labour,
                    R/o. Imlipura, Ashti, Tq. Ashti,
                    Dist. Wardha.                                                  ... APPELLANT

                              ...VERSUS...
               1. State of Maharashtra,
                  Through Ashti Police Station,
                  Dist. - Wardha.
               2. Victim in Crime No.182/2020
                  of Ashti P. S., Dist. Wardha,
                  Though her Complainant Father.
                  [Added Respondent No.2 as per Court's Order ...RESPONDENT
                  dated 13.01.2026.]
              ------------------------------------------------------------------------------------------------
              Mr. K. G. Rathi, Advocate for Appellant.
              Mr. U. R. Phasate, A.P.P. for Respondent/State.
              Mr. S. S. Ali, Advocate (Appointed) for Respondent No.2.
              -----------------------------------------------------------------------------------------------
              CORAM : NEERAJ P. DHOTE, J.
              JUDGMENT RESERVED ON : 06.02.2026.
              JUDGMENT PRONOUNCED ON : 17.03.2026


              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 03.08.2024 passed by the learned Special (POCSO),

Wardha in Special (Child) Case No.16/2021 convicting and

sentencing the Appellant as follows :

"1] Accused Shabbir Shaha Mehboob Shaha is convicted for offences punishable under section 376(AB), 506 of Indian Penal Code and sec.5(m) punishable under section 6 of Protection of Children from Sexual Offences Act vide section 235(2) of Code of Criminal Procedure Code.

2] Accused is sentenced to suffer rigorous imprisonment for twenty years and to pay fine of Rs. 25,000/- (Rs Twenty Five Thousand only) for offence u/sec.5(m) p/u/s 6 of POCSO Act. In default of payment of fine, he shall suffer simple imprisonment for one year. In view of sec.42 of POCSO Act, no separate punishment is imposed for offence p/u/s 376(AB) of IPC.

3] Accused is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.5,000/- (Rs. Five Thousand only) for offence p/u/s 506 of IPC. In default of payment of fine, he shall suffer simple imprisonment for two months.

4] All substantive sentences to run concurrently.

5] Out of fine amount, amount of Rs.10,000/- (Rs. Ten Thousand only) be paid to victim as a compensation under section 357(1) of Code of Criminal Procedure. In addition to that District Legal Service Authority may decide the quantum of compensation be awarded to the victim, under the victim compensation scheme, set out in section 357(A) of the Code of Criminal Procedure, 1973 and Rule-9 of Protection of Children Sexual Offences Rules. From 6] .........

7] .......

8] ........

           9]    .......
           10] .......

11] Copy of this Judgment be given to accused free of costs."

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

report is as under :

a] The Informant was residing with his family comprising

wife and children. The Victim was his second child aged 10 years and

was studying in the school. The Appellant aged 70 years was residing

nearby. On 09.12.2020, the Informant's wife informed him that, the

Appellant sexually molested the Victim. His wife informed him that,

10 to 12 days before, the Appellant sexually molested the Victim. The

said incident was narrated by the Victim to her (mother). The

incident took place when the Victim was playing with her friends.

The Informant along with the Victim went to the Ashti Police Station,

District Wardha and lodged the report against the Appellant. A

crime bearing No.0182/2020 for the offence punishable under

Section 376A,B, 323, 506 of the Indian Penal Code, 1860 (for short,

IPC) and for the offence punishable under Sections 4 and 6 of the

Protection of Children from Sexual Offences Act (for short, "POCSO

Act") came to be registered against the Appellant.

b] The Victim was sent for medical examination. The

statement of the Victim was recorded. The statement of the witnesses

were recorded. The Appellant came to be arrested. The Appellant

was referred for the medical examination. The Spot Panchanama was

prepared. The clothes of the Victim and that of the Appellant came to

be seized. The necessary documents were collected. The seized

articles were sent to the chemical laboratory. 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 376 A, B, 323,

506 of the IPC and for the offence punishable under Sections 4 and 6

of the POCSO Act below Exhibit-6. The Appellant pleaded not guilty

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

examined the following witnesses :

i] Panch for the Spot Panchanama Dnyaneshwar Abhimanji Sarode as PW-1,

ii] Kisna Bapuraoji Dudhkavare, the panch for seizure of 2 bottles of blood sample as PW-2,

iii] The father of the Victim, as PW-3,

iv] The Medical Officer who examined the Victim, as PW-4,

v] Nilesh Mahadeorao Johri, the Panch for Spot Panchanama, Seizure Memo, Memory Card of video recording, the clothes of the Victim and the clothes of the Appellant, as PW-5,

vi] Dr.Arshiya Maksud Sheikh, Medical Officer who examined the Appellant, as PW-6,

vii] The Victim, as PW-7,

viii] The friend of the Victim, as PW-8,

ix] Vandana Ashok Sonule, Investigating Officer, as PW-9.

d] The relevant documents such as the First Information

Report, Panchanamas, Medical Reports, Birth Certificate of the Victim

etc. are brought on record in the evidence of the above referred

witnesses. On closure of the evidence by the prosecution, the

statement of the Appellant came to be recorded under Section 313(1)

(b) of the Cr.P.C. The Appellant stated that, the Informant was

residing with his family in his house and he did not pay the electricity

bill of his share which was around Rs.1700/- and Rs.1800/- and due

to dispute on that count, the Informant left his house and the

marriage of the Informant's younger brother and daughter of his

younger brother was fixed, which was broken and their relations

becomes sour and for these reasons, the false case was lodged against

him. After hearing both the sides and scrutinizing the evidence on

record, the learned Trial Court passed the impugned Judgment and

Order.

3. Heard the learned Advocate for the Appellant, the learned

A.P.P. for the State and the learned Advocate for the Victim.

Scrutinized the evidence on record.

a] It is submitted by the learned Advocate for the Appellant

that, the Victim did not disclose the incident to anybody and only

when her friend told the Victim's mother, the report was lodged. The

Informant did not know as to with whom the Appellant was residing

and therefore, he was not truthful witness. For no reason, the Victim

was admitted to hospital after registration of the crime. Though the

Appellant was examined for his potency, the report of the same was

not brought on record and, therefore, adverse inference needs to be

drawn that, the Appellant was not competent to have sex. The age of

hymen torn has not come in the medical evidence. The Appellant has

taken the defence that, due to the enmity, the false case was

registered. He submitted that, the prosecution's case did not find

corroboration by the evidence available on record, and, therefore, the

charge is not proved. The age of Victim was not established. He

submitted that, the Appeal be allowed.

b] It is submitted by the learned A.P.P. that, the Victim was

12 years old at the time of deposition. Her testimony in respect of

penetration was consistent. As she was threatened by the Appellant,

she remained silent. At the time of the incident, the Victim was 10

years old and, therefore, the delay in reporting the incident to the

police is not fatal. The Victim and her minor friend withstood the

cross-examination. As the Victim was medically examined after 8 to

10 days from the incident, there was no fresh injury on her person.

The medical evidence that, the hymen was torn supports the

prosecution's case. The sole testimony of the Victim was sufficient to

maintain the conviction. However, there is corroboration to the

Victim's testimony. The vague suggestions about tutoring was given

in the cross-examination. The medical evidence shows that, there

was nothing to suggest that, the Appellant was impotent. In the

totality of the evidence on record, the presumption under Section 29

of the POCSO Act comes into play which is not rebutted. The charge

was proved and the learned Trial Court has rightly passed the

impugned Judgment and Order and the Appeal be dismissed.

d] It is submitted by the learned Advocate for the Victim that,

she adopts the submissions made by the learned A.P.P.

4. When the charge is framed for the offence punishable

under the penal section of POCSO, the prosecution is required to

establish that, the Victim was the child as defined under Section 2(d)

of the POCSO Act i.e. below the age of 18 years. As is seen from the

tenor of cross-examination of the witnesses, the age of the Victim is

not in dispute. The endorsement on the communication by the

Investigation Officer to the Riddhipur Gram Panchayat for Birth

Certificate of the Victim (Exhibit-86) and the copy of the Birth

Certificate (Exhibit-87) show that, both the said documents were

admitted by the defence. The said documents show that, the date of

birth of the Informant was 22.09.2011. Therefore, the submissions by

the learned Advocate for the Appellant that, the said Birth Certificate

was issued after the registration of the crime and so be discarded has

no merits. From the date of the birth of the Victim mentioned in the

said Birth Certificate and the date of lodging the First Information

Report, it is clearly established that, the Victim was the child at the

relevant time.

5. The star witness of the prosecution is the Victim, who is

examined as PW-7. Her evidence shows that, the learned Trial Court

found that, the Victim was giving rational answers. Her evidence

shows that, she knew the Appellant as "Bade Abbu". She was residing

with her parents. She was studying in 4 th standard. At the time of

incident, she along with her parents was residing in the house of the

brother of the Appellant. On the day of incident, she was playing

with her friend (PW-8) in the afternoon in front of the house of the

Appellant. The Appellant drove her friend from that place. The

Appellant caught hold her hand and brought her inside his house and

closed the door. The Appellant made her to lie on the bed and

remove her leggings. The Appellant removed his Payjama. The

Appellant inserted his private part into her private part and made

inside and outside movements. Due to the said act, she suffered and

shouted. The Appellant pressed her mouth by his hand. Thereafter,

the Appellant left her and threatened to beat if she disclosed the

incident to anyone. Due to the threat, she did not disclose the

incident to anyone at her house. 10 days after the incident, her friend

(PW-8) came to her house and narrated the incident to her parent.

When her mother enquired with her, she disclosed the incident to her

parent. Her father lodged the report with the Police Station. She was

hospitalized for 4 days. The spot of incident was shown by her to the

police along with her father. She identified the article B(1) and B(2)

as the same clothes she was wearing at the time of incident.

6. The Victim was subjected to the cross-examination. It has

come in her cross-examination that, the Appellant was having 4 sons,

out of which, 2 sons were married. The 2 sons of the Appellant were

residing nearby. The suggestions are given that, due to the dispute on

account of electricity bill, false report was registered. As per the

Victim, she did not disclose the incident to anyone due to threat by

the Appellant. It appears strange that, despite rape in the manner

deposed by the Victim, she was physically and psychologically normal

and strangely the parents did not notice anything. If the incident as

narrated by the Victim had taken place, and considering the Victim's

age, it is highly improbable that, Victim's condition will not be noticed

by the family members. Though the evidence of PW-4 Medical Officer

found the Victim's hymen torn, there is absolutely no evidence that,

the Victim bled after the rape on her. In absence of that, whether the

hymen got torn prior to the date of incident or after the incident is

not known. The cross-examination of PW-4 Medical Officer shows

that, age of hymen injury was not mentioned in the report. The cross-

examination of PW-4 Medical Officer further shows that, there are

other causes of hymen rupture and after sexual intercourse, the

symptoms of bleeding, injury, tearing of private part cannot be ruled

out. The cross-examination of this Medical Officer further shows that,

no such symptoms were found in Victim at the time of examination.

The Medical Officer volunteered that, as the Victim was examined

after 12 days of incident, she did not get such type of signs on her.

These are the serious infirmities in the prosecution's case, which

makes the Victim's testimony doubtful. The note at the bottom of the

Victim's evidence shows that, her father was present at the time of

recording her evidence.

7. PW-8 was the Victim's friend, who was playing with the

Victim on the day of incident. She deposed that, she used to play

with the Victim. The incident took place prior to 3 years. She and

the Victim were playing in front of the Appellant's house between

1.00 p.m. and 2.00 p.m.. The Appellant showed Rs.10/- to the Victim

and held the hand of the Victim and took the Victim inside his house

and closed the door from inside. The Appellant told her to go away

and so she went to her house. She further deposed that, she learnt

that, the Victim was taken to hospital. Police came to the house of

the Victim. Police enquired with her and recorded her statement.

Her statement was also recorded before the learned Magistrate. At the

relevant time, her father was with her. In the cross-examination of

this witness it has come that, on the day of alleged incident, police

met her, police enquired with her and later-on also police enquired

with her, when later-on police enquired with her, police read over the

statement of the Victim to her and police explained her how to state.

It has further come in the cross-examination that, at the time of

recording the statement under Section 164 of the Cr.P.C., her father

was with her, one police was with them and prior to that, she was

read over the statement of the Victim. Even if the said cross-

examination of this witness is ignored, her evidence nowhere shows

that, 10 to 12 days after the incident, she informed the Victim's

mother about the incident. The Victim's mother is not examined. As

per PW-3 father of the Victim, his wife told him that, the Victim's

friend told her about the incident. This is vital inconsistency.

Moreover, the evidence of PW-8 nowhere shows that, she was

threatened by the Appellant. It is only after the Victim was admitted

to the hospital, her statement was recorded. The evidence on record

nowhere shows as to why the Victim was hospitalized and that too

after 10 to 12 days from the incident. The evidence of PW-4 Medical

Officer do not show the cause or reason for admitting the Victim in

the hospital. In the light of the cross-examination, the evidence of

PW-8 is required to be seen with doubt. The note at the end of the

evidence of PW-8 shows that, her father was present at the time of

recording her evidence.

8. There is evidence of PW-6 Medical Officer, who examined

the Appellant after his arrest. On 11.12.2020, she was on duty at

Rural Hospital, Ashti. The Appellant was brought by the Police

Constable. She conducted general and local medical examination of

the Appellant. On local examination, no deformity was detected.

Under observation circumcision was done. Cremastric Reflex -

absent. Smegma - loose skin no secretion. Scrotum - right scrotal

swelling seen. After medical examination, the Appellant was referred

to the department of physiology for precise opinion regarding the

ability to do sexual intercourse. She collected the blood and urine

samples of the Appellant. The said condition was possible due to

mental disturbance, stress and sexual intercourse. During

examination, it was not found that, Appellant was impotent and not

capable of performing sexual intercourse. The cross-examination of

this Medical Officer creates severe dent to her above evidence. It has

come that, due to the said observations, the Appellant was referred

for physiological department for further examination and opinion

about his ability to do sexual intercourse. To the question, the

patient was not fit to do sexual interconnect, this Medical Officer

responded that, for that reason she referred patient to department of

physiology, right scrotum swelling may appear due to other reasons

also. Undisputedly, the report from the physiology department is not

brought by the prosecution on record. In view of the evidence of this

Medical Officer, the medical examination report of the Appellant by

the physiology department where he was referred was relevant and

material. By not bringing on record the said report, adverse inference

needs to be drawn against the prosecution. Undisputedly, the

documents on record shows that, at the relevant time, the Appellant

was 70 years old. The evidence on record is not sufficient to establish

that, the Appellant was capable of having sexual intercourse.

9. As seen from the evidence on record, the Appellant was

having 4 sons. As seen from the Victim's evidence, 2 sons of the

Appellant were residing separately. This indicates that, the Appellant

was not residing alone at his house. The evidence of PW-3 father of

the Victim shows that, at the time of the incident, he was residing in

the same area where the Appellant was residing and the Appellant

was residing adjacent to the house of the Appellant's brother where

the Informant and his family members were residing. He resided

near the house of the Appellant for about 2 years. However,

strangely, the Victim's father did not know whether the wife of the

Appellant was residing with the Appellant or not. He did not know

that, at the relevant time, the wife, the sons of the Appellant and their

families were residing with him. Though he volunteered that, sons of

the Accused/Appellant were residing separately with their family

adjacent to the house of the Appellant, the said cross-examination of

the informant shows that, he was not the reliable witness.

10. In absence of establishing the foundational facts of the

case in support of the charge, there is no question of drawing

presumption under Section 29 of the POCSO Act. From the cross-

examination and the statement under Section 313(1)(b) of the

Cr.P.C. of the Appellant, it is the defence that, the informant was

residing in the house of the Appellant's brother and they had taken

the electric connection from the Appellant's house and Rs.1700/- to

Rs.1800/- towards electricity bill was due. The Appellant demanded

the same to the informant which resulted in dispute. Having seen the

totality of the evidence on record, the prosecution utterly failed to

establish the charge against the Appellant. The suggestion of tutoring

is given to the Victim, the Victim's father and the Investigating

Officer. It has come in the cross-examination of PW-9 Investigating

Officer that, in Corona period, people were not coming on main road.

As the prosecution failed to establish the charge, the Appellant is

entitled for acquittal. Hence, the following order :

ORDER

i] The Appeal is allowed.

ii] The conviction and sentence recorded by the learned Trial Court against the Appellant by the impugned Judgment and Order dated 03.08.2024 in Special (Child) Case No.16/2021, is quashed and set aside.

iii] The Appellant is acquitted for the offence punishable under Sections 376(A)(B), 506 of the Indian Penal Code, 1860 and for the offence punishable under Section 6 of the POCSO Act.

iv] The Appellant is behind bars. He be released, if not required in any other offence.

v] As fine amount is not paid, there is no question of directing refund.

vi] Muddemal articles be dealt with as per the Operative Order of the impugned Judgment.

vii] Record and proceedings be sent back to the learned Trial Court.

viii] Fees of the appointed Advocate for the Respondent No.2 is quantified to Rs.7,500/- to be paid by the High Court Legal Services Sub-Committee, Nagpur.

(NEERAJ P. DHOTE, J.)

RGurnule

Signed by: Mrs. R.M. MANDADE Designation: PA To Honourable Judge Date: 17/03/2026 14:49:57