Bombay High Court

MAHAMMAD SHAFIQUE SHAIKH S/O. ABDUL HAMID (SHEIKH MOHD. SHAFIQUE S/O. ABDUL HAMID)versusTHE STATE OF MAHARASHTRA

Disposal: DISPOSED OFF
Bench: SANJAY A DESHMUKH

Holding

The appellate court held that material discrepancies in the testimonies created reasonable doubt, leading to the acquittal of the appellant on all charges.

Summary

The appellant, a 19‑year‑old student, was convicted by a Special Judge under IPC Section 452 and Sections 7 and 8 of the POCSO Act for allegedly assaulting a 17‑year‑old girl inside her house and giving her two dollars. The prosecution relied on the victim’s statements, her mother’s testimony, an independent eye‑witness and panch witnesses. The defence argued that the victim’s statements were inconsistent regarding whether the assault occurred inside or outside the house, that the birth certificate was not produced to prove the victim’s minority, and that the material discrepancies created reasonable doubt. The appellate court found that the victim and her mother gave conflicting accounts about the spot of the incident, and that the prosecution’s case was therefore doubtful. Consequently, the court allowed the appeal, set aside the conviction and acquitted the appellant of all charges.

Issues considered

Whether the evidence establishes the commission of an offence under IPC Section 452 and POCSO Sections 7/8.
Whether the victim was a minor at the time of the incident, making the POCSO provisions applicable.
Whether the inconsistencies in the testimonies regarding the location of the assault create reasonable doubt.
Whether the prosecution has proved the charge beyond reasonable doubt.

Legislation cited

Code of Criminal Procedure, 1973 — s. 164
Indian Penal Code, 1860 — s. 452
Protection of Children from Sexual Offences Act, 2012 — s. 7, 8

Subjects

criminal law
sexual assault
POCSO Act
reasonable doubt
evidence inconsistency
minority
IPC Section 452
acquittal

Judgment

2026:BHC-AUG:21667

Crim.Appeal No.437 of 2018.odt

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.437 OF 2018

Sheikh Muhammad Shafique S/o Abdul Hameed
Age: 19 years, Occu: Student,
R/o. Manjurpura Harshnabar, Aurangabad
Tq. & Dist. Aurangabad ..Appellant

VERSUS

The State of Maharashtra
For police Station Officer,
City Chowk Police Station,
Tq. & Dist. Aurangabad
through the Public Prosecutor,
High Court Bench at Aurangabad ..Respondent
….
Mr. P. P. Mandlik, Advocate for the appellant
Mr. S. G. Joshi, APP for the Respondent/State
Mr. Rajesh H. Mewara, Advocate for respondent No.2 in Criminal
Application No.186 of 2026
WITH
CRIMINAL APPLICATION No.186 OF 2026
….

CORAM : SANJAY A. DESHMUKH, J.
RESERVED DATE : 18.03.2026
PRONOUNCED DATE : 08.05.2026

JUDGMENT :-

1. This appeal is filed against the judgment of conviction

passed by the learned Special Judge, Aurangabad now

Chhatrapati Sambhajinagar in Special Case (POCSO) No.56 of

2016 dated 22.06.2018, by which the appellant-accused was held

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liable under Section 452 of the Indian Penal Code, 1860 (for short

IPC) and sentenced to suffer rigorous imprisonment for three years

and to pay a fine of Rs.500/-, in default of payment of fine rigorous

imprisonment for 15 days and under Section 7/8 of the Protection of

Children from Sexual Offences Act, 2012 (for short the POCSO Act)

to suffer rigorous imprisonment for three years and to pay a fine of

Rs.500/-, in default of payment of fine rigorous imprisonment for one

month.

PROSECUTION CASE

2. On 26.02.2016, at about 09:00 hours, the victim child,

aged 17 years, was proceeding to her house after attending tuition/

classes namely “Mapari Classes” on her Activa scooter. The appellant-

accused, who was a student of her college, was following her on his

motorcycle. She was frightened, but somehow she reached her house,

parked her scooter and entered into the house. At that time, the

appellant-accused followed her and inside of house caught hold her

hand and put two dollars in her hands. He thereafter committed

obscene acts with her, due to which she felt ashamed and raised hue

and cry. Upon hearing the same, her parents rushed there and caught

hold the accused. They then called the police, and the police took the

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accused with them. Thereafter, the informant along with her parents

went to the police station and lodged the report.

3. The Investigating Officer, A.P.I. Sheshrao Abaji Udar,

conducted the investigation, recorded the statements of the witnesses

and arrested the accused. The Activa scooter and the vehicle of the

accused were seized. The charge-sheet came to be filed before the

Special Court. The accused was charged under Section 452 and 354

of the IPC, and under Section 7/8 of the POCSO Act. The accused

denied the charge. The prosecution examined the following

witnesses:

Sr. Prosecution witnesses Exh. No. Details
No.
1. P.W.-1 victim girl/prosecutrix Exh.18 Proved FIR Exh.19
2. P.W.-2 mother of the victim Exh.22 Proved statement
girl under Section 164 of
Cr.P.C. vide Exh.23
3 P.W.-3 Rupesh Dube Exh.26 Panch witness on
panchanama Exh.27
4 P.W.-4 Santosh Agrawal Exh.28 Independent witness
5 P.W.-5- Gajendra Siddh Exh.30 Panch witness on
panchnama Exh.31
6 P.W.-6 A.P.I. Sheshrao Abaji Exh.39 Investigating Officer
Udar

4. The mother of the victim girl (P.W.-2) and Santosh Agrawal,

the Independent eye-witness (P.W.-4), supported the prosecution’s

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case. Rupesh Dube (P.W.-3), the Panch Witness, proved the spot

panchanama at Exh.27. Gajendra Siddh (P.W.-5), the panch witness,

proved the seizure panchanama of two dollars recovered from the

victim child at Exhi.31. A.P.I. Sheshrao Abaji Udar (P.W.-6) deposed

regarding the manner in which he carried out the investigation.

5. Mr. P. P. Mandlik, learned advocate for the appellant-

accused pointed out the report at Exh.19, in which the victim girl

stated that when she entered into the house, the accused forcibly

caught hold her hand and put two dollars in her hands and

committed a shameful act with her, due to which she raise hue and

cry and her mother came there and rescued her.

6. The learned advocate further pointed out the statement of

the victim child at Article-A, which was recorded before the learned

Judicial Magistrate First Class, Aurangabad, in which she stated that

when she reached at her house, the accused caught hold her hand. He

further pointed out the statement of the mother of victim child (P.W.-

2) recorded before the learned Judicial Magistrate First Class,

Aurangabad at Exh.23, in which she has stated that upon hearing the

hue and cry of her daughter, she came out of the house and saw that

the accused was holding her daughter’s hand. She rescued her

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daughter and shouted. In the oral evidence of the victim child

recorded before the Court, she admitted in the cross-examination that

the incident took place after she had entered into the house. She also

admitted that the contents of her statement at Article-A, recorded

before the Magistrate, were correct.

7. Learned Advocate for the appellant further submitted that

the evidence of Santosh Agrawal (P.W.-4), the independent witness, is

also not certain regarding the place where the incident took place. He

has deposed that the incident occurred outside of the house. He

submitted that the spot of the incident has been materially changed,

which creates a reasonable doubt, and therefore the appellant-

accused is entitled to acquittal. He further submitted that the birth

certificate of the victim child has not been duly proved to establish

that she was a minor at the time of the incident. Therefore, the

prosecution under the POCSO Act is not maintainable. He, therefore,

prayed to allow the appeal by acquitting the appellant-accused.

8. The learned APP for the respondent-State strongly opposed

the appeal and submitted that the incident took place in the presence

of eye-witnesses, particularly the mother of the victim child and the

independent witness, Santosh Agrawal (P.W.-4). The panch witness,

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Rupesh Dube, has proved the spot panchnama at Exh.27, and

Gajendra Siddh, the panch witness to the seizure of two dollars, has

proved the seizure panchnama at Exh.31. The evidence of these

witnesses has not been shaken in the cross-examination. On the

contrary, the evidence of Santosh Agrawal materially corroborates the

version of the victim child. The reasons and findings of the learned

Trial Court are legal and correct, and no interference is warranted

therein. He therefore prayed to dismiss the appeal, as there is no

substance in the grounds of objections raised therein.

9. On perusal of the impugned judgment along with the oral

and documentary evidence on record, particularly the evidence of the

victim child and her mother regarding the spot of the incident, there

are material discrepancies in their evidence. The victim child stated in

her report as well as in her deposition that the incident took place

inside the house when the accused followed her. However, while

recording her statement before the learned Magistrate, she stated that

when she reached near her house, the accused caught hold of her

hand. Her mother (P.W.-2) deposed in her examination-in-chief that

she heard the shouts of her daughter and at that time the accused was

holding her hand, whereupon she separated them. However, in her

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statement recorded before the learned Magistrate, she has stated that

when she heard the shouts of her daughter, she immediately rushed

outside of the house and saw that the accused was holding her

daughter’s hand, and she rescued her. Thus, these admissions, along

with the admissions of the victim child, create a reasonable doubt as

these three witnesses have stated that the incident took place outside

of the house, whereas the informant, in her report and deposition,

stated that the incident took place inside of her house.

10. The accused was arrested on the next day, though the

prosecution case is that he was caught hold by the prosecution

witnesses and handed over to the police immediately after the

incident. Thus, the prosecution case becomes reasonably doubtful.

Therefore, the accused is entitled to the benefit of reasonable doubt.

11. The learned Special Court erred in appreciating the

evidence in its proper perspective and erroneously held the accused

guilty. Therefore, interference in the impugned judgment is

warranted. The appeal, therefore, deserves to be allowed and the

impugned judgment deserves to be set aside with acquittal of the

accused. Hence, the following order:

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::ORDER::

a. The Criminal Appeal is allowed.

b. The impugned judgment and order of conviction dated

22.06.2018, passed by the learned Special Judge (POCSO),

Aurangabad in Special Case (POCSO) No.56 of 2016 is set

aside.

c. The appellant-accused is acquitted of the offences

punishable under Section 452 of the Indian Penal Code and

under Section 7/8 of the Protection of Children from

Sexual Offences Act, 2012.

d. The fine amount be repaid to the accused after the appeal

period is over.

e. Rest of the operative part of the order is maintained.

f. Pending civil applications are disposed of.

[ SANJAY A. DESHMUKH, J. ]
HRJadhav

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