14 ALS-11-2026 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL ALS NO.11 OF 2026 IN CRIMINAL APPEAL (ST) NO.3217 OF 2026 [State of Maharashtra, through P.S.O., P.S. Maregaon, Yavatmal ..Vs.. Shahabaz Sheikh Shabbir Sheikh and another] ______________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions Court's or Judge's order and Registrar's orders. Ms. R. V. Sharma, Addl. P. P. for Applicant/Appellant. Shri. Rizwan Khan, Adv. h/f Shri. Yuvraj Dhande, Advocate for Respondent. CORAM : URMILA JOSHI-PHALKE AND RAJ D. WAKODE, JJ. DATE : 24 th AUGUST, 2026 . 1. By this application, the State is seeking to prefer an appeal against the judgment and order passed by the Special Judge-1, Kelapur, District Yavatmal, in Special Case No.22 of 2022, by which respondents are acquitted of the charges. 2. Heard the learned Additional Public Prosecutor, who submitted that the victim lodged a report at the Police Station stating that, being 17 years old, she was a child within the definition given under the provisions of the Protection of Children from Sexual Offences Act, 2012, and belonged to the “Kolam” caste. On 21.03.2022, at about 12:15 p.m., when she had been to answer the nature’s call, the accused - Shahabaz Sheikh Shabbir Sheikh, caught her, dragged her towards the bushes in the field, and subjected her to sexual assault, while the other co-accused was standing outside. On the basis of the said report, the police registered the crime against the present respondents. After completion of the investigation, the charge-sheet came to be filed. 3. The learned Addl. P. P. further submitted that, in support of the prosecution case, the prosecution has examined in all 13 witnesses. Out of them, PW-7, the victim, is a material witness who has narrated the incident. Her evidence is corroborated by the medical evidence, as the hymen was found to be torn. Thus, she submitted that, though the prosecution has proved that the 2026:BHC-NAG:11111-DB 14 ALS-11-2026 2 victim was a child within the definition given under Section 2(d) of the PoCSO Act, and the medical evidence also shows that she was subjected to forceful sexual assault, the Trial Court nevertheless disbelieved the evidence and acquitted the accused. She submitted that, thus, the prosecution has an arguable case. In view thereof, leave be granted. 4. Heard the learned counsel for the respondents, who appeared through video conferencing, supported the judgment and order of the Trial Court, and submitted that the evidence adduced by the prosecution was not probable and therefore, was not believed by the Trial Court and therefore, no interference is called for. 5. After hearing both sides and on perusal of the entire evidence, particularly the evidence of the victim, it is revealed that the victim was on the verge of attaining the age of majority. Her evidence further shows that there was communication between her and the accused. Though, she denied having any acquaintance with the accused, she admitted that there was an exchange of messages between her and the accused. Therefore, there is substance in the observation made by the Trial Court. 6. As far as the relationship between the victim and the accused is concerned, admittedly, as per her evidence, the victim was subjected to sexual assault when she had gone to answer the nature’s call. As per her report as well as her evidence, she was dragged; however, not a single scratch was found on her person. That was also a reason to disbelieve her evidence. It is settled that, to attract the presumption under Section 29 of the PoCSO Act, the prosecution has to establish the foundational facts, which have not been established by the prosecution. Therefore, no case is made out for granting leave to prefer an Appeal. In view of the above, the prayer of the State for grant of leave is hereby rejected. (RAJ D. WAKODE, J.) (URMILA JOSHI-PHALKE, J.) TAMBE. Signed by: Mr. Ashish Tambe Designation: PA To Honourable Judge Date: 25/08/2026 19:05:11