Full Judgment Text
2026:BHC-AUG:11431
CriAppeal-181-2022
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 181 OF 2022
Shaikh Jamil @ Rahil Khan
s/o Shaikh Abdul Shukkur
Age : 34 years, Occu : Private Service,
R/o : In Front of Ali Masjid,
Ansar Colony, Padegaon,
Taluka and District Aurangabad. … Appellant
[Orig. Accused]
Versus
1. The State of Maharashtra
Through Police Station Officer,
Chhavani Police Station,
Dist. Aurangabad.
2. X Y Z … Respondents
…..
Mr. P. N. Ghadge, Advocate for the Appellant (appointed through
Legal Aid)
Mr. P. P. Dawalkar, APP for Respondent No.1-State
Mr. M. M. Ambhore, Advocate for Respondent No.2
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 16.03.2026
Pronounced on : 17.03.2026
JUDGMENT :
1. Appellant, a Convict in Special Case (POCSO) No. 64 of 2016,
hereby takes exception to the judgment and order dated 13.11.2021
passed by learned Special Judge (POCSO), Aurangabad, convicting
appellant for offence under Section 376(2)(i) of IPC and Section 4(2)
CriAppeal-181-2022
-2-
of the Protection of Children from Sexual Offences Act, 2012 (for
short, ‘ POCSO Act’).
2. Prosecution was launched against present appellant on report
Exhibit 22 lodged by victim PW2 who gave her age as 16 years at the
time of lodging complaint and further narrated that, her biological
father left her mother and thereafter her mother performed second
marriage. However, step father expired and her mother again re-
th
married. According to her, while she was studying in 10 Standard,
accused used to stalk her, expressed his liking for her and also
expressed his desire to marry her by telling her that he was working
in Army. She claims that they started meeting each other regularly
behind her house. On 30.01.2026, he took her on motorcycle in the
vicinity of Khultabad and while returning in the evening, he took her
to a remote place where construction was in progress and offered to
marry her and assured not to deceive her, and thereafter he
undressed her and twice had sexual intercourse with her. She
returned home next day and on being questioned by mother, she
narrated the above incident and therefore her mother gave call to
accused, to verify whether he really wanted to marry her daughter.
However he did not turn up. Therefore above report was lodged with
police, on the basis of which crime was registered and on
CriAppeal-181-2022
-3-
investigation, accused was chargesheeted and tried and consequently
held guilty for above charges.
3. Learned counsel for appellant would point out that there is
false implication. According to him, there were love relations between
accused and victim. That, girl used to meet appellant on her own
accord and she readily joined him to Khultabad and even there were
consensual relations and that there was no force. He pointed out that,
medical evidence does not support prosecution. According to him,
pancha to spot panchanama has not supported prosecution. That,
evidence of father and mother is hearsay and, according to him, as
case was not proved beyond reasonable doubt, its benefit ought to
have been extended to the accused. He placed reliance of judgment of
this Court in the case of Gorakshya Arjun Mahakal v. State of
Maharashtra, 2019 SCC OnLine Bombay 520.
4. Per contra, learned APP as well as learned counsel for the
complainant both justify the order of conviction as, according to them
victim being minor, consent, if any, becomes insignificant. According
to them, there is overwhelming evidence that victim was minor and
therefore charges were of POCSO were duly attracted and even
proved.
CriAppeal-181-2022
-4-
5. Re-appreciated the evidence. Prosecution has rested its case on
the evidence of five witnesses i.e. PW1 Pancha to spot panchanama,
PW2 victim, PW3 mother, PW4 Head Mistress, PW5 Investigating
Officer.
6. In the light of nature of charges, it is to be first seen whether
prosecution has discharged its burden, including proving victim to be
a minor, and as to whether, thus, provisions of POCSO Act were
attracted. For this, evidence of victim, her mother and headmaster is
crucial.
PW2 victim, in her evidence at Exhibit 21, gave her date of
birth as 09.12.2000 and according to her, at the time of lodgment of
complaint she was 16 years of age. It is pertinent to note that, while
under cross, there is no cross examination on the point of age of
victim. There is no suggestion also that she is not minor.
PW3 Mother of the victim at Exhibit 24 stated that at the time
th
of incident, her daughter was 15 to 16 years age and studying in 10
standard. Nothing adverse has been brought in her cross except giving
suggestion that in Muslim community, marriage of a girl is
CriAppeal-181-2022
-5-
solemnized at the age of 15 to 17 years. Such suggestion shows that
there is no serious challenge to the age of the victim.
PW4 Head Mistress, who is examined at Exhibit 35, placed on
record school extract. She also placed birth certificate tendered by
parents at the time of admission which is at Exhibit 38. According to
her, from the school record, date of birth of victim was 09.12.2000.
Therefore this witness corroborates testimony of victim on the point
of date of birth. Taking the same into consideration and evidence of
PW4 having remained intact, a finding can safely be recorded that
prosecution has proved that, at the time of FIR victim was minor and
therefore, provisions of POCSO Act do get gravitated.
7. There is charge for offence under Section 376(2)(i) of IPC.
Again, for the same, evidence of victim is crucial. After narrating that,
on 30.01.2016 she met accused behind her house and on the pretext
of talking something urgent, he took her on motorcycle to Khultabad,
they had lunch and according to her, at 06.00 p.m. while returning
towards Aurangabad, opposite to Sarosh High School, he took her to
a construction site and told her that he would marry her and would
not deceive her and requesting her to keep faith, she claims that, he
removed her garments and his own garments and twice he had sexual
CriAppeal-181-2022
-6-
intercourse with her. Next day morning when she came home, she
was questioned by her mother during which she narrated that she had
been with a boy who was willing to marry her and thereafter passed
mobile number of accused, over which mother had talks and accused
allegedly assured to come within 15 to 20 minutes but he never
turned up and therefore police was approached and report was
lodged vide Exhibit 22 in which she narrated as deposed.
Victim has faced cross, but it is noticed that she admitted
meeting accused regularly and about falling in love with accused. She
claims that she also thought that she should marry him and wanted to
tell her mother about their affair and to seek her consent. There is a
suggestion to which she answered that she is not willing to marry
even if accused is willing to marry her. She admitted that, had he
come to talk to her mother prior to lodging report, she probably
would have married him. She denied lodging false report.
The above tenor of cross categorically shows that there is no
denial about victim to be a minor on the date of incident. There is
overwhelming evidence about she to be minor. Therefore, even if
there is consent, it is of no avail to the accused. She being minor, her
consent is immaterial.
CriAppeal-181-2022
-7-
8. Second ground of challenge is that scientific/forensic evidence
does not support prosecution story. Indeed, from the chargesheet, it is
emerging that blood vials, cloths of accused and victim, mobile and
sim card of accused were collected on 01.02.2026. However,
examination report shows that the same were dispatched to FSL on
02.02.2026, 04.02.2016 and were received by FSL on 01.02.2016,
04.02.2016 and 21.04.2016 respectively. Admittedly, occurrence is of
30.01.2026. Though forensic/FSL reports are negative, it is fairly
settled position that DNA reports or FSL reports are merely
corroborative piece of evidence and not conclusive one.
Consequently, negative DNA report itself does not invalidate a rape
charge when sole testimony of the prosecutrix inspires confidence and
is found to be truthful, unblemished and worthy of credence. Here,
sole testimony of prosecutrix does inspire confidence and there is no
need to look for further corroboration.
9. With above quality of evidence, when law is fairly settled that if
sole testimony of victim of cases of such nature inspires confidence,
there is no need to seek corroboration from independent corner. In
the ruling relied by learned counsel, facts were distinct wherein it was
noticed that love relations were not approved by the family, and
moreover, testimony of prosecutrix itself was not inspiring
CriAppeal-181-2022
-8-
confidence. Here is is otherwise. Therefore, there being no merits in
the appeal, following order is passed :
ORDER
The Criminal Appeal is dismissed.
[ABHAY S. WAGHWASE, J.]
vre
CriAppeal-181-2022
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 181 OF 2022
Shaikh Jamil @ Rahil Khan
s/o Shaikh Abdul Shukkur
Age : 34 years, Occu : Private Service,
R/o : In Front of Ali Masjid,
Ansar Colony, Padegaon,
Taluka and District Aurangabad. … Appellant
[Orig. Accused]
Versus
1. The State of Maharashtra
Through Police Station Officer,
Chhavani Police Station,
Dist. Aurangabad.
2. X Y Z … Respondents
…..
Mr. P. N. Ghadge, Advocate for the Appellant (appointed through
Legal Aid)
Mr. P. P. Dawalkar, APP for Respondent No.1-State
Mr. M. M. Ambhore, Advocate for Respondent No.2
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 16.03.2026
Pronounced on : 17.03.2026
JUDGMENT :
1. Appellant, a Convict in Special Case (POCSO) No. 64 of 2016,
hereby takes exception to the judgment and order dated 13.11.2021
passed by learned Special Judge (POCSO), Aurangabad, convicting
appellant for offence under Section 376(2)(i) of IPC and Section 4(2)
CriAppeal-181-2022
-2-
of the Protection of Children from Sexual Offences Act, 2012 (for
short, ‘ POCSO Act’).
2. Prosecution was launched against present appellant on report
Exhibit 22 lodged by victim PW2 who gave her age as 16 years at the
time of lodging complaint and further narrated that, her biological
father left her mother and thereafter her mother performed second
marriage. However, step father expired and her mother again re-
th
married. According to her, while she was studying in 10 Standard,
accused used to stalk her, expressed his liking for her and also
expressed his desire to marry her by telling her that he was working
in Army. She claims that they started meeting each other regularly
behind her house. On 30.01.2026, he took her on motorcycle in the
vicinity of Khultabad and while returning in the evening, he took her
to a remote place where construction was in progress and offered to
marry her and assured not to deceive her, and thereafter he
undressed her and twice had sexual intercourse with her. She
returned home next day and on being questioned by mother, she
narrated the above incident and therefore her mother gave call to
accused, to verify whether he really wanted to marry her daughter.
However he did not turn up. Therefore above report was lodged with
police, on the basis of which crime was registered and on
CriAppeal-181-2022
-3-
investigation, accused was chargesheeted and tried and consequently
held guilty for above charges.
3. Learned counsel for appellant would point out that there is
false implication. According to him, there were love relations between
accused and victim. That, girl used to meet appellant on her own
accord and she readily joined him to Khultabad and even there were
consensual relations and that there was no force. He pointed out that,
medical evidence does not support prosecution. According to him,
pancha to spot panchanama has not supported prosecution. That,
evidence of father and mother is hearsay and, according to him, as
case was not proved beyond reasonable doubt, its benefit ought to
have been extended to the accused. He placed reliance of judgment of
this Court in the case of Gorakshya Arjun Mahakal v. State of
Maharashtra, 2019 SCC OnLine Bombay 520.
4. Per contra, learned APP as well as learned counsel for the
complainant both justify the order of conviction as, according to them
victim being minor, consent, if any, becomes insignificant. According
to them, there is overwhelming evidence that victim was minor and
therefore charges were of POCSO were duly attracted and even
proved.
CriAppeal-181-2022
-4-
5. Re-appreciated the evidence. Prosecution has rested its case on
the evidence of five witnesses i.e. PW1 Pancha to spot panchanama,
PW2 victim, PW3 mother, PW4 Head Mistress, PW5 Investigating
Officer.
6. In the light of nature of charges, it is to be first seen whether
prosecution has discharged its burden, including proving victim to be
a minor, and as to whether, thus, provisions of POCSO Act were
attracted. For this, evidence of victim, her mother and headmaster is
crucial.
PW2 victim, in her evidence at Exhibit 21, gave her date of
birth as 09.12.2000 and according to her, at the time of lodgment of
complaint she was 16 years of age. It is pertinent to note that, while
under cross, there is no cross examination on the point of age of
victim. There is no suggestion also that she is not minor.
PW3 Mother of the victim at Exhibit 24 stated that at the time
th
of incident, her daughter was 15 to 16 years age and studying in 10
standard. Nothing adverse has been brought in her cross except giving
suggestion that in Muslim community, marriage of a girl is
CriAppeal-181-2022
-5-
solemnized at the age of 15 to 17 years. Such suggestion shows that
there is no serious challenge to the age of the victim.
PW4 Head Mistress, who is examined at Exhibit 35, placed on
record school extract. She also placed birth certificate tendered by
parents at the time of admission which is at Exhibit 38. According to
her, from the school record, date of birth of victim was 09.12.2000.
Therefore this witness corroborates testimony of victim on the point
of date of birth. Taking the same into consideration and evidence of
PW4 having remained intact, a finding can safely be recorded that
prosecution has proved that, at the time of FIR victim was minor and
therefore, provisions of POCSO Act do get gravitated.
7. There is charge for offence under Section 376(2)(i) of IPC.
Again, for the same, evidence of victim is crucial. After narrating that,
on 30.01.2016 she met accused behind her house and on the pretext
of talking something urgent, he took her on motorcycle to Khultabad,
they had lunch and according to her, at 06.00 p.m. while returning
towards Aurangabad, opposite to Sarosh High School, he took her to
a construction site and told her that he would marry her and would
not deceive her and requesting her to keep faith, she claims that, he
removed her garments and his own garments and twice he had sexual
CriAppeal-181-2022
-6-
intercourse with her. Next day morning when she came home, she
was questioned by her mother during which she narrated that she had
been with a boy who was willing to marry her and thereafter passed
mobile number of accused, over which mother had talks and accused
allegedly assured to come within 15 to 20 minutes but he never
turned up and therefore police was approached and report was
lodged vide Exhibit 22 in which she narrated as deposed.
Victim has faced cross, but it is noticed that she admitted
meeting accused regularly and about falling in love with accused. She
claims that she also thought that she should marry him and wanted to
tell her mother about their affair and to seek her consent. There is a
suggestion to which she answered that she is not willing to marry
even if accused is willing to marry her. She admitted that, had he
come to talk to her mother prior to lodging report, she probably
would have married him. She denied lodging false report.
The above tenor of cross categorically shows that there is no
denial about victim to be a minor on the date of incident. There is
overwhelming evidence about she to be minor. Therefore, even if
there is consent, it is of no avail to the accused. She being minor, her
consent is immaterial.
CriAppeal-181-2022
-7-
8. Second ground of challenge is that scientific/forensic evidence
does not support prosecution story. Indeed, from the chargesheet, it is
emerging that blood vials, cloths of accused and victim, mobile and
sim card of accused were collected on 01.02.2026. However,
examination report shows that the same were dispatched to FSL on
02.02.2026, 04.02.2016 and were received by FSL on 01.02.2016,
04.02.2016 and 21.04.2016 respectively. Admittedly, occurrence is of
30.01.2026. Though forensic/FSL reports are negative, it is fairly
settled position that DNA reports or FSL reports are merely
corroborative piece of evidence and not conclusive one.
Consequently, negative DNA report itself does not invalidate a rape
charge when sole testimony of the prosecutrix inspires confidence and
is found to be truthful, unblemished and worthy of credence. Here,
sole testimony of prosecutrix does inspire confidence and there is no
need to look for further corroboration.
9. With above quality of evidence, when law is fairly settled that if
sole testimony of victim of cases of such nature inspires confidence,
there is no need to seek corroboration from independent corner. In
the ruling relied by learned counsel, facts were distinct wherein it was
noticed that love relations were not approved by the family, and
moreover, testimony of prosecutrix itself was not inspiring
CriAppeal-181-2022
-8-
confidence. Here is is otherwise. Therefore, there being no merits in
the appeal, following order is passed :
ORDER
The Criminal Appeal is dismissed.
[ABHAY S. WAGHWASE, J.]
vre