SAYAD AFROZ S/O SAYAD MURTAZAversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:22936


                                                 {1}            CR APPEAL 510 OF 2019


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                CRIMINAL APPEAL NO. 510 OF 2019
                 .    Sayad Afroz S/o Sayad Murtaza
                      Age: 24 Years, Occu.: Labourer,
                      R/o. Near Irrigation Colony,
                      At. Post. - Gokunda, Taluka – Kinwat,
                      District – Nanded.
                      (At present in Jail)                       ..Appellant
                                                              (Orig. Accused)
                            Versus

                 1]   The State of Maharashtra
                      Through Police Station Officer,
                      Kinwat Police Station, Kinwat,
                      District – Nanded.
                 2]   XYZ                                        ..Respondents
                                                 …..
                 Advocate for Appellant : Mr. Swapnil S. Rathi
                 APP for Respondent no.1 : Mr.Pravin M.Kulkarni
                 Advocate for Respondents : Ms. Ashwini Deshmukh (Appointed)
                                                 …..
                                     CORAM : ABHAY S. WAGHWASE, J.

                                     RESERVED ON   : 11 JUNE, 2026
                                     PRONOUNCED ON : 12 JUNE, 2026
                 JUDGMENT :


                 1.   Convict for offence under Sections 376, 452, 323 of the Indian

                 Penal Code (IPC), hereby assails Judgment and order dated

                 02-04-2019 passed by learned Special Judge, Nanded, in Special

                 (POCSO) Case No.21 of 2016.
                                 {2}               CR APPEAL 510 OF 2019


                   FACTS OF CASE IN NUTSHELL

2.    Kinwat Police Station, District Nanded, chargesheeted accused

on the premise that on 05-06-2016, victim, aged 16 years of age, was

alone and studying in her house. At that time, accused, who happens

to be a relative of landlord, entered the house and had sexual

intercourse with victim.   Victim’s mother and brother fortunately

reached their house and they found victim unconscious and in naked

condition. After mother sprinkled water on her face and after she

gained consciousness, she narrated acts of accused and thereafter,

she accompanied her mother to the Police Station where Crime

bearing No.107 of 2016 was registered. The same was investigated

by PW8 Investigating Officer and after gathering sufficient evidence,

accused was duly chargesheted and ultimately tried vide Special

(POCSO) Case No.21 of 2016.

      At trial, prosecution adduced evidence of in all ten witnesses

and   also   adduced   documentary     evidence.       Both    oral    and

documentary evidence was duly appreciated by learned Special

Judge and had reached to a finding that prosecution has failed to

prove that victim was below 18 years of age and therefore, accused

came to be acquitted from charge under the POCSO Act. But learned

trial Judge accepted case of prosecution as regards offence under
                                   {3}           CR APPEAL 510 OF 2019


Sections 376, 452 and 323 of the IPC and sentenced him as stated in

the operative part of the order.

      It is the above Judgment and order of conviction, which is the

subject matter of the appeal.


                            SUBMISSIONS

On behalf of appellant :

3.    Learned counsel for the appellant submitted that, there is false

implication. According to him, prosecution has not only failed to

prove that victim was a minor, but also failed to prove that there was

forcible rape. According to him, there is no corroboration to the

testimony of the victim. That, medical evidence also did not suggest

any forcible sexual act. That, necessary ingredients for attracting

offence under Sections 452 and 323 of the IPC were not available.

However, learned trial Court failed to consider and correctly

appreciate the available evidence as well as defence of accused and

even did not take into account cross-examination faced by the

prosecution witnesses and straightaway accepted the case of

prosecution without testing its credibility and veracity. He further

submitted that accused has already undergone and suffered the

sentence awarded by the learned trial Court.
                                   {4}             CR APPEAL 510 OF 2019


On behalf of State and Victim :

4.      Learned APP as well as learned counsel for the victim have

both justified the order of conviction and pray to dismiss the appeal

for want of merits.

                        ANALYSIS OF EVIDENCE

5.      Initially at the commencement of trial, the learned trial Court

framed charge for commission of offence under Sections 376, 452

and 323 of the IPC and under Section 3 punishable under Section 4

of the Protection of Children from Sexual Offences Act, 2012 (POCSO

Act).

        However, on appreciation of evidence, learned trial Court

noted that there was no conclusive evidence or proof on the point of

age of prosecutrix and therefore, holding that prosecution failed to

prove that victim was below 18 years of age, case of prosecution for

commission of offence under the POCSO Act, was rejected.

        Resultantly, only conviction under penal sections like 376, 452,

323 remain for consideration in this appeal.


6.      Though State has not challenged acquittal from charge under

the POCSO Act, it become incumbent upon this Court also to verify

whether prosecution had at all discharged its burden of proving

victim to be a minor in the light of availability of charges under the
                                  {5}             CR APPEAL 510 OF 2019


provisions of POCSO Act.

      On this count, there is evidence of victim and her mother as

well as Head Master.

      PW1 Victim is examined at exh.10. She has given her age as

16 years, but she has not given her exact date of birth.

      PW7 mother of victim, in her evidence at exh.38, also gave age

of her daughter as 16 years and she did not give date of birth.

      PW5 Head Mistress of Sumatibai Hemsingh Naik Kanya

Vidyalaya, Kinwat, where the victim studied in 10 th Standard, gave

date of birth of victim as 15-06-2000 as per school record and she

placed on record admission register and further stated that victim

had taken admission in their school on 15-06-2015. This witness has

also placed on record exh.32, exh.33 and exh.34, which are extracts

of admission register and admission form. This witness PW5 has

admitted that, at the time of admission, date of birth certificate was

not tendered.

      Similarly, PW10 Head Master of Vithai Madhyamik Vidyalaya,

Nanded, also merely placed on record admission form, admission

register extract and school leaving certificate of prosecutrix at

exhibits 57 to 59.

      From the testimony of these prosecution witnesses, it is
                                   {6}            CR APPEAL 510 OF 2019


emerging that, prior to taking education in the school of witness

PW5, prosecutrix was studying in Vithai Madhyamik Vidyalaya,

Nanded i.e. in 9th Standard. Therefore, apparently, there is no school

record showing admission being taken in 1 st Standard, which is

relevant for considering date of birth. In absence of any cogent and

conclusive evidence on the point of age, victim’s age is not proved.

Hence, no fault can be found in the findings of the learned trial Court

to that extent.


7.    Now, it is to be further tested whether accused has indulged in

forcible sexual intercourse as alleged by victim.       On this count,

evidence of victim as well as her mother is crucial.

      Revisited the evidence of PW1 victim. She has deposed that on

05-06-2016, while she was alone in the house as her mother and

brother had been to Kinwat, at around 10:30 a.m., accused came,

caught her, gagged her by inserting stole in her mouth and thereafter,

disrobed her and committed sexual intercourse with her.

      Nothing adverse has been brought in the cross-examination of

victim to disbelieve her such version.

      Mother of victim, who is examined as PW7, has also stated that

after she returned home, she found doors closed from inside and

when she gave call to her daughter, this accused himself was seen
                                   {7}             CR APPEAL 510 OF 2019


coming out of house and when she went inside the house, she found

victim unconscious and in naked condition, and therefore, she

sprinkled water on victim’s face. Thereafter, victim become conscious

and narrated the incident to her and then, they both went to lodge

report.   After lodging of report, victim was referred for medical

examination.


8.    PW3 Dr.Sambhaji Madhavrao Kadam, Medical Officer is

examined at exh.17 and he has stated that victim gave history of

sexual assault at 11:00 a.m. on 05-06-2016 i.e. after accused forcibly

entering her house, gagged her mouth, disrobed her and committed

sexual intercourse with her. This witness has also narrated injuries

noted by him, out of which, two are abrasions and two are

contusions. On examination of genitals, Medical Officer noticed that

there was redness to Labia Majora with swelling and tenderness, and

redness to Labia Minora with swelling and tenderness, and vagina

having redness, swelling and tenderness. He has categorically opined

that injuries are due to forceful vaginal intercourse. This evidence

has also not seriously challenged nor it is disturbed.


9.    Taking into account above evidence of victim finding support

from the medical evidence, commission of offence under Section 376
                                  {8}             CR APPEAL 510 OF 2019


of the IPC indeed is made out by the prosecution. As there was

forcible entry in the house of victim, even offence under Section 452

of the IPC gets gravitated. Likewise, Medical Officer has narrated

nature of injuries on the person of victim during medical examination

and therefore, necessary ingredients for attracting offence under

Section 323 of the IPC are also available.       Consequently, charges

under Sections 376, 452 and 323 of the IPC stand squarely proved.


10.    Perused the judgment under challenge. This Court has noticed

that entire oral evidence has been correctly appreciated. Medical

evidence is also correctly appreciated and therefore, learned trial

Court committed no error in accepting prosecution case as proved

but only for offence under Sections 376, 452 and 323 of the IPC. As

such there is no infirmity or illegality in the impugned judgment so as

to interfere.   Consequently, the appeal deserves to be dismissed.

Accordingly, following order is passed :

                               ORDER

      (I)   Criminal Appeal stands dismissed.

      (II) Fees of the learned counsel appointed to represent
      respondent no.2 is to be paid through the High Court Legal
      Services Sub-Committee, Aurangabad, as per Rules.

                                           ( ABHAY S. WAGHWASE )
                                                    JUDGE
SPT