1 CRI. APEAL 433-2023.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH AT NAGPUR CRIMINAL APPEAL NO. 433 OF 20 23 Abdul Azim Abdul Kadir, aged about 30 years, Occu. - Labour, R/o. Marwadipura, Kurum, Tah. Murtizapur, District : Akola. (The applicant is in Central Prison, Akola) ... Appellant .. Versus .. 1) State of Maharashtra, Through its Police Station Officer, Police Station – Mana, Tahsil- Murtizapur, and District - Akola 2) XYZ, R/o Kurum, Tahsil- Murtizapur and District - Akola. Crime No. 85/2014 Police Station Officer, Police Station Mana, Tq. Murtizapur, Dist. Akola. ...Respondents ------------------------------------------------------------------------------- Shri R.M.Daga, Advocate with Shri Abdul Subhan, Advocate for appellant. Shri U.R.Phasate, APP for respondent no. 1/State. Mrs. Sonali Saware/Gadhave, Advocate (appointed) for respondent no. 2. ------------------------------------------------------------------------------- CORAM : NEERAJ P. DHOTE, J. DATE OF RESERVING THE JUDGMENT : 13/01/2026 DATE OF PRONOUNCING THE JUDGMENT: 23/01/2026 2026:BHC-NAG:1116 2 CRI. APEAL 433-2023.odt JUDGMENT This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the judgment and order dated 30/05/2023 passed by the learned Additional Sessions Judge, Akola in Sessions Case No.258/2014 convicting and sentencing the Appellant as follows. The operative order is reproduced below:- 1] Accused Abdul Azim Abdul Kadir is hereby convicted under S.235 (2) of the Code of Criminal Procedure for the offences punishable under S.377 & 506 of the Indian Penal Code, S.3 punishable under S.4 and S.11 punishable under S.12 of the Protection of Children from the Sexual Offences Act, 2012. 2] For the offence punishable under S.377 of the Indian Penal Code, accused shall suffer rigorous imprisonment for ten years and shall pay fine of Rs.5,000/- (Rupees five thousand only), in default, to suffer simple imprisonment for one month. 3] For the offence under S.3 punishable under S.4 of the Protection of Children from the Sexual Offences Act, 2012, accused shall suffer rigorous imprisonment for 7 (seven) years and shall pay fine of Rs.5,000/- (Rupees five thousand only), in default, to suffer simple imprisonment for one month. 4] For the offence punishable under S.506 of the Indian Penal Code, accused shall suffer rigorous imprisonment for 3 CRI. APEAL 433-2023.odt three years and shall pay fine of Rs.2,000/- (Rupees two thousand only), in default, to suffer simple imprisonment for 15 (fifteen) days. 5] For the offence punishable under S.11 punishable under S.12 of the Protection of Children from the Sexual Offences Act, 2012, accused shall suffer rigorous imprisonment for three years and shall pay fine of Rs.3,000/-(Rupees three thousand only), in default, to suffer simple imprisonment for 15 (fifteen) days. 6] All the sentences shall run concurrently. 2. The prosecution’s case as revealed from the police report is as under:- 2.1. The informant was residing with his two sons and nephew and their respective families at village Kurum, Tah. Murtizapur, District Akola. The child (victim) was the grandson of the informant, being son of his nephew. The victim was 14 to 15 years of age at the time of incident. The informant was having two shops. Some employees were working in the shops. The Appellant was one of such employees of the informant. On 05/10/2014 at about 01.00 p.m., the informant asked the Appellant to clean the rooms situated at his residence on the upper floor. The Appellant took the victim with him. After some time, the informant went to the courtyard and had a look towards 4 CRI. APEAL 433-2023.odt upstairs and noticed that, the door of room, which he asked the Appellant to clean, was closed. He went upstairs and peeped inside the room through the window and saw that, the victim was naked and the Appellant had inserted his penis in the anus of the victim. The informant raised an alarm and asked the Appellant to open the door. After 4 to 5 minutes, the Appellant opened the door and left. The victim was weeping. When the informant asked the victim, he disclosed that, the Appellant was doing such act with him for last one (1) year and used to give threat not to disclose the same to any one. 2.2. The informant lodged the report with Mana Police Station, Tah. Murtizapur, District Akola on 06/10/2014 and Crime bearing no. 85/2014 came to be registered against the Appellant for the offence punishable under Sections 377 and 506 of Indian Penal Code (for short, ‘I.P.C.’) and for the offence punishable under Sections 4 and 12 of the Protection of Children from the Sexual Offences Act (for short, ‘POCSO Act’). The statement of the victim was recorded. The victim was sent for medical examination. The Appellant came to be arrested and referred for medical examination. The statement of the witnesses were recorded. The samples of the victim and that of the 5 CRI. APEAL 433-2023.odt Appellant were sent for chemical analysis. On completion of investigation, the charge-sheet came to be filed. 2.3. On committal, the learned Trial Court framed the charge against the Appellant for the offence punishable under Sections 377 and 506 of I.P.C. and for the offence punishable under Sections 4 and 12 of POCSO Act below Exh. 23. The Appellant pleaded not guilty and claimed to be tried. To establish the charge, the prosecution examined Ms. Jyoti R. Nage, Headmistress of School, where the victim was studying, as P.W.-1, the informant was examined as P.W.-2, the victim came to be examined as P.W.-3, Mr. Rajendra A. Junghare, the panch for the spot panchnama, was examined as P.W. 4, Dilip P. Dhotkar who registered the crime, carried out the investigation and submitted the charge-sheet, was examined as P.W.5, Dr. Swati E. Durande, Medical Officer who examined the victim, was examined as P.W.-6 and Dr. Amruta N. Kharode who examined the Appellant, was examined as P.W.7. The relevant documents such as the record, panchnamas, medical examination papers, chemical analysis report etc. came to be brought on record in the evidence of the above referred witnesses. 6 CRI. APEAL 433-2023.odt 2.4. After the prosecution filed the evidence closure pursis, the learned Trial Court recorded the statement of the Appellant under Section 313(1)(b) of the Cr.P.C. The Appellant stated that, he was falsely implicated, as he was not paid the wages for 7 to 8 years and as his uncle demanded the wages from the informant, false report was lodged. He stated that, he was unable to perform sexual intercourse. On appreciation of the evidence available on record, the learned Trial Court passed the impugned judgment and order convicting and sentencing the Appellant as above. 3. Heard the learned Advocate for the Appellant, learned APP for the State and learned Advocate for the victim. Scrutinized the evidence available on record. (A) It is submitted by the learned Advocate for the Appellant that, though the victim deposed that, the act of carnal intercourse was being committed for 1 year, there was no complaint of assault by the victim to his family members. Even on 05/10/2014, there was no shout or cry by the victim and this show that, no such act was committed by the Appellant. None seizure of mobile and photos from the Appellant, falsifies the 7 CRI. APEAL 433-2023.odt victim’s evidence that, the Appellant showed the obscene photo to him and committed the carnal intercourse. No history of the alleged offence was given to the Medical Officer. The Medical Officer examined by the prosecution had given his opinion on the examination by another Doctor. The opinion of the Medical Officer was provisional and there is no final opinion after the C.A. report was received. There was no evidence of the Medical Officer who examined the victim for carnal intercourse. The version of the victim and that of the informant do not find the support from the medical evidence. There is no document to show that, the Medical Officer responded to the queries raised by the Investigating Officer in respect of the carnal intercourse. It is submitted that, the Appeal be allowed and conviction and sentence be set aside. (B) It is submitted by the learned APP that, the prosecution proved that, the victim was a child at the relevant time, by examining the Headmistress of the school. The victim deposed about the act committed by the Appellant on him. The victim’s testimony was consistent and remained unshaken in the cross-examination. As he was given threats by the Appellant, he 8 CRI. APEAL 433-2023.odt did not report the incident which had taken place on the earlier occasions. There is no suggestion for tutoring. The victim’s testimony inspires confidence. There is no question of consent by the child. The child was not knowing as to what was happening with him. The Appellant was major by age and knew the consequence of his act. Even if the medical evidence is kept aside, the testimony of the child was sufficient to maintain the conviction. The prosecution proved the charge and the learned Trial Court rightly convicted and sentenced the Appellant and the Appeal be dismissed. (C) It is submitted by the learned Advocate for the victim that, he adopts the submissions made by the learned APP. She submitted that, the Appellant failed to rebut the presumption and the Appeal be dismissed. 4. When the charge and conviction is for the offence punishable under the penal provisions of POCSO, it becomes necessary for the prosecution to establish that, the victim was a child defined under Section 2(d) of the POCSO i.e. below the age of 18 years. The prosecution examined the Headmistress of the Primary School where the victim was studying. In the school 9 CRI. APEAL 433-2023.odt record, the victim’s date of birth was 19/04/2000. The relevant documents from the school were brought on record to prove the said date of birth of the victim. Though cross-examined, nothing came on record so as to discard the evidence in respect of the evidence to prove the date of birth and the age of the victim. It is clear that, there is no serious challenge to the date of birth and the age of victim. Considering the evidence on record, it is clear that, the prosecution proved that, the victim was child at the time of lodging the report for the incidences prior to it. 5. The evidence of the informant shows that, the Appellant was working in his grocery and hardware shop. On 05/10/2014, in the afternoon, the informant asked the Appellant to clean the rooms on the upper floor of his residence and the Appellant took the victim with him. After 5 to 10 minutes, when he came in courtyard of his resident, he noticed that, the door of the upper floor room was closed and so he went up. There was gallery attached to the room and there was a window. The window was open, so he peeped inside and saw that, the victim was nude and the Appellant had inserted his penis in the anus of the victim. He asked the Appellant to open the door. After 4 to 5 10 CRI. APEAL 433-2023.odt minutes, the Appellant opened the door and left. The victim wore his clothes and was crying. He consoled him. When the victim got settled, he asked him about the act of the Appellant. The victim narrated that, since last one (1) year, the same was being done and due to the threats, he did not disclose the same to anyone. The informant deposed that, he narrated the incident to the victim’s parents and on the next day i.e. 06/10/2014, he lodged the report below Exh. 40 against the Appellant. 6. The victim’s evidence shows that, at the time of recording his evidence, he was 19 years old. He deposed that, there were total five (5) servants in the shop of his grandfather. The Appellant was one of the servants and he knew him. He was having friendly relations with the Appellant. The Appellant used to put his hand on his shoulder, press his hand, and crack jokes. One day, the Appellant called him in the storeroom situated on the back side and he went there. The Appellant showed him the obscene photographs and opened his pant’s zip and gave his private part into the hand of the victim. He further deposed that, whenever there were no one in the shop, he used to call him in the storeroom and used to try to insert his penis in his anus by 11 CRI. APEAL 433-2023.odt removing his own clothes and clothes of victim. The Appellant used to threaten him to kill, therefore, he remained silent. Whenever the Appellant had time, he used to commit the said act with him. The victim further deposed that, on 05/10/2014, when his grandfather asked the Appellant to clean the room situated on the upper floor, the Appellant took him by holding his hand. The Appellant cleaned some part of the room and then closed the door of the room, removed his pant and that of himself and inserted his penis in his anus. After some time, when his grandfather came up and saw the act from the window, called them from the window. He and the Appellant wore the clothes and the Appellant left. He deposed that, he was frightened and crying. His grandfather consoled him and he narrated the past incident to him and his grandfather lodged the report with the Police Station on the next day. The victim further deposed that, he was referred for the medical examination and his statement was recorded by the Police. 7. Though the charge is framed for the acts of carnal intercourse by the Appellant with the victim prior to 05/10/2014, the victim’s evidence do not show that, the carnal intercourse was 12 CRI. APEAL 433-2023.odt committed by the Appellant with him prior to 05/10/2014. What he deposed is that, the Appellant used to try to commit such act. There is no iota of evidence that, prior to the day of incident, carnal intercourse was done by the Appellant with the victim. 8. As regards the incident dated 05/10/2014 is concerned, it is clear from the evidence of the victim and that of the informant that, no hue and cry was made by the victim after the Appellant took the victim in the room on the first floor. It is only when the informant went upstairs, he noticed the victim in naked position and the Appellant in the act of carnal intercourse, the hue and cry was made. The prosecution’s evidence shows that, the victim was referred for medical examination. The prosecution examined P.W.-6 Dr. Swati Darande, Medical Officer attached to Government Medical College and Hospital, Akola in respect of the medical examination of the victim. Her evidence shows that, the victim was examined on 07/10/2014 and the On-duty surgeon has done the examination of anal region of the victim and gave his findings. Her evidence further shows that, she did remaining examination of the victim and on the basis of examination and the findings of surgeon from the surgical 13 CRI. APEAL 433-2023.odt department, she gave her opinion that, possibility of anal sex cannot be ruled out. Undisputedly, the said on-duty surgeon who examined the victim in respect of anal region is not examined by the prosecution. As the evidence of this witness clearly shows that, her opinion was based on the findings given by the said On-duty surgeon, her opinion will have scant value. The cross- examination of this witness shows that, the PR (Per Rectal) of the victim was done by the surgeon and she copied the PR report given by the said surgeon. She admitted that, while doing PR examination, the index finger is strolled with the cover and by applying the xylotain gely is put in the anus. NAD means “no abnormility detected”. This witness accepted that, in her report, it was mentioned that, final opinion will be given after Forensic Science Laboratory (FSL) report. She further accepted that, she had not given her final opinion after perusing the FSL report and her opinion was probable. In view of the evidence of this witness, it is clear that, the medical evidence brought on record by the prosecution, do not corroborate the prosecution’s case or victim’s version regarding carnal intercourse by the Appellant on him. 9. There is the evidence of P.W.-7 Dr. Amruta N. 14 CRI. APEAL 433-2023.odt Kharode, Medical Officer who examined the Appellant on 07/10/2014. Her evidence shows that, no injury was found on the person of the Appellant. In cross-examination of this witness, it has come in clear terms that, she did not notice any injury on the private part of the Appellant. This evidence further do not corroborate the testimony of informant and victim that, the Appellant committed carnal intercourse. 10. In view of the above discussed evidence of the informant, the victim as well as the medical evidence, the prosecution’s evidence falls short of establishing carnal intercourse by the Appellant on the victim. The appreciation of the said evidence on record goes to show that, there was attempt by the Appellant to commit the anal sex with the victim. There are reasons for coming to said conclusion. Firstly, the evidence of the victim clearly shows that, on the early occasion, the Appellant attempted (tried) to commit the carnal intercourse. Secondly, no hue and cry was raised by the victim on 05/10/2014, when the informant noticed him with the Appellant. Thirdly, no evidence of the On-duty surgeon how examined the victim in respect of anal region. Fourthly, no final opinion of 15 CRI. APEAL 433-2023.odt P.W.-6, Medical Officer in respect of the carnal intercourse. Fifthly, no injury on the private part of the Appellant. The prosecution has brought on record the reports of Chemical Analyzer below Exh. 61, 62 and 63. They are found not incriminating in nature. 11. The other evidence is that of the Panch and Investigating Officer. They deposed in respect of the role played by them during the course of investigation. 12. On evaluation of the evidence available on record, it is clear that, the prosecution’s evidence do not establish the offence punishable under Section 377 of I.P.C. against the Appellant. What the evidence on record establishes is that, there was an attempt on the part of the Appellant to commit the unnatural offence. The evidence on record do not prove the penetrative sexual assault, but the attempt to commit the offence of penetrative sexual assault. Therefore, the Appellant shall be liable for the one-half punishment. Thus, the punishment imposed for the offence punishable under Section 377 of I.P.C. and for the offence punishable under Section 4 of the POCSO by 16 CRI. APEAL 433-2023.odt the learned Trial Court needs to be modified. Hence, the following order:- ORDER I) The Criminal Appeal is partly allowed. II) The conviction of the Appellant for the offence punishable under Section 377 of I.P.C. and for the offence punishable under Section 4 of the POCSO Act is converted to the offence punishable under Section 511 r/w. Section 377 of I.P.C. and for the offence punishable under Section 18 r/w. Section 4 of POCSO Act. III) The Appellant shall suffer rigorous imprisonment for five (5) years for the offence punishable under Section 511 r/w. Section 377 of I.P.C. and shall pay fine of Rs. 5,000/- (Rs. Five Thousand Only), in default, to suffer simple imprisonment for one (1) month, and for the offence punishable under Section 18 r/w. Section 4 of POCSO Act, Appellant shall suffer rigorous imprisonment for three (3) years and five (5) months and shall pay fine of Rs. 5,000/- (Rs. Five Thousand Only), in default, to suffer simple imprisonment for one (1) month. 17 CRI. APEAL 433-2023.odt IV) The conviction and sentence for the offence punishable under Section 506 of I.P.C. and for the offence punishable under Section 12 of POCSO Act is maintained. V) The rest of the operative order of the learned Trial Court shall remain intact. VI) Record and Proceedings be sent back to the learned Trial Court. VII) The Criminal Appeal stands disposed of accordingly. [NEERAJ P. DHOTE, J.] B.T.K. Signed by: Mr. B.T. Khapekar Designation: PA To Honourable Judge Date: 23/01/2026 13:28:44