GOUSODDIN KHAJASAB SHAIKHversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:35543


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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                                   CRIMINAL APPEAL NO.278 OF 2025

                         Gousoddin Khajasab Shaikh
                         Age: 29 years, Occu.: Nil,
                         R/o. Chhatrapati Nagar, Shirur,
                         Tq. Ahmedpur, Dist. Latur,
                         At present – Central Jail,
                         Chh. Sambhajinagar.                        .. Appellant

                               Versus

                 1.      The State of Maharashtra

                 2.      ABC                                        .. Respondents

                                                   …
                 Mr. Sunil P. Koli, Advocate for appellant (Appointed through Legal
                 Aid).
                 Mrs. A. S. Mantri, APP for respondent No.1/State.
                 Mr. Sandeep C. Swami, Advocate for respondent No.2.
                                                   ...

                                                 CORAM :     ABHAY S. WAGHWASE, J.
                                           RESERVED ON :     13.08.2026
                                        PRONOUNCED ON :      14.08.2026

                 JUDGMENT :-

                 1.      Convict for offence under Section 6 read with Section 18 of the

                 Protection of Children from Sexual Offences Act [POCSO Act]

                 challenges the judgment and order dated 13.09.2024 passed by

                 learned Special Judge, Ahmedpur in Special Case (POCSO) No.7 of

                 2023.
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                            BRIEF FACTS

2.    Accused was charge-sheeted and tried on indictment for offence

under Sections 376(2)(f), 376(AB) of Indian Penal Code [IPC] and

under Section 4, 6 of the POCSO Act. That, accused committed

penetrative sexual assault on his own daughter aged 08 years on

08.04.2023. After investigation, charge was framed and explained to

accused, after which trial was undertaken vide above special case. At

trial, prosecution adduced evidence of as many as six witnesses

including informant mother, victim herself P.W.2 and two medical

experts. On appreciation of oral and documentary evidence adduced

by prosecution, learned Trial Court accepted the case of prosecution,

but only for charge under Section 6 read with Section 18 of the

POCSO Act and convicted the accused.

      Feeling aggrieved by the judgment and order of conviction,

appellant/convict has preferred instant appeal.


                            SUBMISSIONS

On behalf of Appellant :-


3.    Learned Counsel appointed for appellant would submit that

there is false implication. According to him, taking disadvantage of

bitter relations between father and mother, mother i.e. wife of

appellant has levelled false allegations by filing false report.
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According to him, there is no legally acceptable evidence about

occurrence. He pointed out that it was not possible to commit such

an act under a blanket and, moreover, no one had an occasion to see

the act, including the informant, as she was admittedly out of the

house. He further submitted that there is no corroboration from the

medical evidence, as there are no signs of violence. He further

submitted that the Trial Court has directly accepted the testimonies of

the informant and the victim and, moreover, the grandmother, who

was also stated to be present in the house, as well as the younger

sister of the victim, have not been examined by the prosecution for

the reasons best known to it. According to him, there is incorrect

appreciation of evidence. There is non consideration of settled law by

the Trial Court. For such counts and on such grounds, there is

challenge to the judgment and order of conviction.


On behalf of State as well as Informant :-


4.    Learned APP as well as learned Counsel for informant both

strongly opposed the appeal by supporting the judgment and order of

Trial Court on the ground that false plea of bitter relations between

husband and wife is put forth. They both submitted that no mother

would falsely implicate her own husband for ravishing their child for

no reason. It is pointed out that the informant’s evidence finds
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support from the evidence of P.W.4. The victim’s testimony is

consistent both before the Court as well as before the learned Judicial

Magistrate First Class while recording her statement. Therefore, both

of them, while canvassing in favour of the impugned judgment and

order, urged that the appeal be dismissed for want of merits.


               EVIDENCE BEFORE THE TRIAL COURT


5.    P.W.1 is the informant, who is mother of victim and she

deposed at Exhibit-17 that her victim daughter is 8 years of age.

Around 10.30 a.m. on 08.04.2023 she went out of the house for

washing clothes and she returned back after drying the clothes. That

time, she noticed her husband as well as daughter sleeping on a cot

by using pull over. She deposed that she tried to pull her daughter

outside and at that time, when she removed the pull over, she noticed

her husband to be in naked condition and her daughter's frock also

being pulled over. Seeing her mother, victim daughter started crying.

Informant mother claims that her daughter narrated the act of

accused kissing her, pressing her breast and trying to insert his male

organ in her private part and, therefore, she called her brother and

thereafter, they both approached police and she lodged report

Exhibit-18.
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         Relevant cross-examination is in paragraph No.4 wherein she

has stated that in her statement to police there was no reference of

the word cot. She answers that her victim daughter did not attend

school and that, such incident had not taken place previously. She

admitted that her husband was suffering from Asthma. Rest is all

denial.


6.       P.W.2 is the victim. Her preliminary assessment has been done

by trial Court by putting questions to assess her capacity to depose.

She has narrated the occurrence about her father calling her, pulling

her towards it, making her sleep with him beneath a pull over, kissing

her, removing her clothes as well as his own clothes and trying to

attempt force on her and at such time her mother arriving.


         In the cross-examination of the victim witness, there are

questions regarding the alleged ailment of the accused. She admitted

that there used to be quarrels between her father and mother and that

her father used to consume liquor, but she stated that, hence, she did

not like him. She admitted that her grandmother was also present in

the house. She further admitted that there was no bleeding from her

private part. She flatly denied that no such occurrence had taken

place.
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7.    P.W.3 is the medical expert, who examined accused.


8.     P.W.4 is the medical expert, who examined victim and at

Exhibit-26 he deposed about victim being referred to the hospital for

examination and on 09.04.2025 victim and her mother narrated

history alleging commission of rape by the father of victim. Doctor

examined her and did not find signs of violence. However, on

examination of genital parts, he found hymen perineum ruptured,

redness tenderness present and there was slight bleeding. He

identified report Exhibit-27.


      During cross-examination, he admitted that there was no

separate MLC register and that the signature of the person who

brought the victim had not been obtained. He further stated that

victim narrated that the incident had happened two to three times to

a question, when there was sexual assault done multiple times at

interval, there would be no signs of bleeding or tenderness ? To

which, expert has answered that sexual assault was made by force

and if age of the victim is young, so there would be slight bleeding

and tenderness. He denied that there was no bleeding to the vagina.

In paragraph No.7, he has denied that hymen may be ruptured by

cycling or playing other sports, but admitted that there would be
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redness to the Libia Minora due to allergic conditions. Rest is all

denial.


9.    P.W.5 is the panch and P.W.6 is the investigating officer.


                               ANALYSIS


10.   There being provisions of the POCSO Act, at the outset, it is

required to be seen whether the prosecution has established that the

victim was below 18 years of age on the date of the occurrence.

Before the Trial Court, the birth certificate issued by the Gram

Panchayat is at Exhibit-41, which reflects the date of birth of the

victim as 25.06.2015. A birth certificate issued by the local body

qualifies for consideration for determining the age, and this position

is well settled in law. Therefore, there is conclusive evidence on the

point of victim to be minor i.e. going by the date of birth of the victim

as 25.06.2015 and occurrence to be taken place on 08.04.2023.

Resultantly, victim being minor, provisions under POCSO Act do

gravitated.


11.   Papers show that Trial Court framed charge for commission of

offence under Section 376(2)(f) read with Section 376(AB) of IPC

and under Sections 4, 6 of the POCSO Act. The Trial Court convicted

the appellant for offences punishable under Section 6 read with
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Section 18 of the POCSO Act. It would be appropriate to reproduce

the said provisions hereinbelow:


        6. Punishment for aggravated penetrative sexual assault.—
        (1) Whoever commits aggravated penetrative sexual
        assault shall be punished with rigorous imprisonment for a
        term which shall not be less than twenty years, but which
        may extend to imprisonment for life, which shall mean
        imprisonment for the remainder of natural life of that
        person and shall also be liable to fine, or with death.

        (2) The fine imposed under sub-section (1) shall be just
        and reasonable and paid to the victim to meet the medical
        expenses and rehabilitation of such victim.

        18. Punishment for attempt to commit an offence.—
        Whoever attempts to commit any offence punishable under
        this Act or to cause such an offence to be committed, and
        in such attempt, does any act towards the commission of
        the offence, shall be punished with imprisonment of any
        description provided for the offence, for a term which may
        extend to one half of the imprisonment for life or, as the
        case may be, one-half of the longest term of imprisonment
        provided for that offence or with fine or with both.


12.   In the light of nature of charge and accusations, evidence of

informant, very victim and medical experts, assume importance and,

therefore, same is required to be visited for reappreciation and

reanalysis. Substance of the evidence of informant mother is already

dealt with in aforesaid paragraph No.5. Informant Mother has
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claimed that her daughter was 8 years of age and on 08.04.2023

when she went out of the house for washing and drying clothes and

returned at around 10.30 a.m. she noticed her minor daughter

sleeping with her husband beneath a pull over. She claims to have

removed the pull over and had seen her own husband in naked

condition and even garments of her daughter to be removed and

thereafter, her daughter narrated the incident with her about she

telling her that accused kissed her, pressed her breast and attempted

to force himself on his own daughter. Immediately, thereafter,

informant has called her brother and, thereafter, approached police.

From the cross-examination of informant mother nothing damaging

to the prosecution has been brought, except omission which is not

material. Therefore, testimony of informant has stood with cross

examination without flinching.


13.   P.W.2-victim, who is examined at Exhibit-20, has also narrated

the occurrence in her examination-in-chief. The details of the acts

committed by her own father upon her till the arrival of her mother

have been stated by the victim in the witness box. Even nothing

damaging to the prosecution has been brought on record in her cross-

examination. The statement of the victim was also recorded under

Section 164 of the Code of Criminal Procedure, which is apparently
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consistent with her testimony.


      Thus, evidence of victim has remained unshaken and find

support from evidence of her mother P.W.1.


14.   Prosecution has adduced the evidence of doctor at Exhibit-26,

who has examined the victim. This expert has stated that he did not

found any signs of violence on the person of victim, but on

examination of genital parts, he found hymen perineum ruptured and

redness with tenderness present and, therefore, he opined that the act

suggested sexual assault on the victim. Though there is sufficient

cross-examination of medical expert and attempt is made to test the

knowledge of the medical expert, nothing adverse has been brought

so as to disbelieve his testimony. Chemical Analyzer’s (CA) report

would show that cloth of victim Exhibit-5 is detected with human

blood and more particularly, blood group “B”, which is of the victim.

Therefore, there is also support from scientific evidence.


15.   Here is an unfortunate case, where a father has attempted to

commit penetrative sexual assault on his minor daughter. The defence

of false implication on account of bitter relations between husband

and wife has no force and no foundation. In spite of being biological

father, he has indulged in above acts. Therefore, evidence of P.W.1
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informant and P.W.2 victim being consistent, learned Trial Court

committed no error whatsoever in recording the guilt for offence

under Section 6 read with Section 18 of the POCSO Act. No case is

made out to interfere. Hence, I proceed to pass the following order :-


                               ORDER


.     Criminal Appeal stands rejected.



                                         [ABHAY S. WAGHWASE, J.]



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