Bombay High Court
Amin Alias Aftab Mehboob Hashmi vs The State Of Maharashtra And Anr. on 17 December, 2025
2025:BHC-AS:55961
14-APEAL-563-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CR. APPEAL NO. 563 OF 2021
Amin Alias Aftab Mehaboob Hashmi }
Age-27 years, Occ: service, }
}
R/at Teen Bangala Rali, Washi Sangh
}
Nirmal Nagar, Khar (E), Mumbai }
And }
Permanent Resident of Babusarai }
Sant Ravidas Nagar Thana-Aurahi, }
District-Bhadohi, State-Uttar Pradesh and } (Org.Accused)
NILAM Digitally signed by
NILAM SANTOSH Presently undergoing sentence at } ... Appellant
SANTOSH KAMBLE
Date: 2025.12.18 }
KAMBLE 14:23:08 +0530 Amravati Central Prison, Amravati
Versus
1. State of Maharashtra }
(At the instance of Nirmal Nagar Police }
}
Station in CR No.121 of 2018)
}
}
2. Name : XYZ }
Age-17 years }
Add: 501, 'A' Wing, Safa Marwa }
Apartment, Patonnadi, Malad (E), } ... Respondents
Mumbai.
----
Ms.Sayed Shabana Mashkoor Ali a/w Ms.Lakshmi Raman, for the
Appellant.
Mr.S.S. Ghag, APP, for Respondent No.1-State.
Ms.Trupti Khamkar, for Respondent No.2.
----
N.S. Kamble page 1 of 11
::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 :::
14-APEAL-563-2021.doc
CORAM : R.M. JOSHI, J.
DATE : 17th DECEMBER 2025
ORAL JUDGMENT :
. This Appeal against the judgment and order dated 10th February 2021 Passed in special POSCO Case No.317 of 2018, whereby the Appellant is convicted for the offences punishable under Section 376 of Indian Penal Code ('IPC' for short) and Section 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO' for short) and sentences to suffer RI for 15 years of imprisonment with fine. He is also convicted for the offence punishable under Section 420 of the IPC and Section 8 of the POCSO Act and sentenced to suffer 3 years imprisonment with fine of Rs.5,000/- in default R.I. for two months.
2. It is the case of the prosecution that at the time of the occurrence of the incident i.e. around June 2017, the victim who was minor developed friendly relationship with the Accused. It is claimed that in June 2017 Accused called her at his residence and on promise of marriage committed sexual N.S. Kamble page 2 of 11 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 ::: 14-APEAL-563-2021.doc intercourse with her. It is further case of the prosecution that thereafter on various pretexts the Accused has asked for money and on different occasions either in form of gold or cash of Rs.4 lakhs was given by the victim to him. It is claimed that due to promise of marriage given by Accused the physical relations were agreed and the gold and cash was paid to him. Since, the Accused failed to marry her and blocked her phone, she filed complaint with Police. On the basis of the said report crime bearing No.121 of 2018 came to be registered with Nirmal Nagar Police Station. Investigation into the crime was done. The victim was referred for medical examination. Her statement was recorded under Section 161 of Cr.P.C. The Investigating Agencies carried out panchnamas and incriminating articles were recovered. On conclusion of investigation charge-sheet is filed.
3. Since, the Accused denied the charges, prosecution examined in all six witnesses.
PW No. Name Designation / Role
PW-1 Name Withheld Prosecutrix
N.S. Kamble page 3 of 11
::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 :::
14-APEAL-563-2021.doc
PW-2 Mother of Prosecutrix Witness
PW-3 Dr. Snehal Murde Medical Officer
PW-4 Sunita Bhosale Investigating Officer
PW-5 Pandurang Kamble Investigating Officer
PW-6 Pramod Kamble Investigating Officer
4. Over and above oral evidence the prosecution placed reliance on FIR, spot panchnama, medical report of victim, birth certificate, house search panchnama, statement under Section 161 of the Cr.P.C. and arrest form. The incriminating evidence was put to the accused in his statement under Section 313. He not only denied the incriminating circumstances but also examined himself on oath. The learned Trial Court found the evidence led by the prosecution sufficient to convict the Accused and accordingly impugned judgment came to be passed.
5. The learned counsel for the Appellant submits that evidence of the victim is not wholly reliable in order to convict the Accused without seeking any corroboration thereto. It is submitted that, the cross-examination of the victim indicates that her statement before the Court in substantive evidence is N.S. Kamble page 4 of 11 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 ::: 14-APEAL-563-2021.doc no believable. It is thus submitted that, having regard to the nature of evidence on record it cannot be held that the offence under Section 376 of the IPC and Section 4 of the POCSO Act is proved.
6. Insofar as the offence punishable under Section 420 is concerned, it is argued that the testimony of the victim as well as her mother is not sufficient to conclude that the prosecution has proved any amount or gold having been given to the Accused on the promise of marriage. It is her submission that there are no receipts placed before the Trial Court in order to show that any such gold was there with the victim which was given to the Accused so also the witness who had given the cash was not examined before the Trial Court. Moreover, there is no recovery of incriminating articles from the Accused. On these amongst submission she seeks acquittal of the Accused.
7. The learned APP and learned counsel for Respondent No.2 opposed the Appeal by pointing out the fact that admittedly the victim was minor at the time of occurrence of the offence. They drew attention of the Court to the cross-
N.S. Kamble page 5 of 11
::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 :::
14-APEAL-563-2021.doc
examination conducted of victim suggesting physical
relationship between them and a case being sought to made out of consensual physical relations. It is argued that there is further medical evidence to corroborate the version of the victim about sexual intercourse being done by the Accused with her. It is their submission that consent of the victim becomes immaterial, in view of the fact that, she was minor at the relevant time. Thus they argued for maintaining conviction for the offence punishable under Section 376 of IPC and Section 4 of POCSO Act. Insofar as the offence punishable under Section 420 is concerned, it is their contention that the evidence of victim if accepted on the point of sexual harassment, there is no reason not to believable her in respect of the offence of cheating committed by the Accused.
8. Perusal of the evidence on record indicates that the prosecution has proved by placing reliance on birth certificate of the victim (Exhibit-9) that her date of birth is 1 st February 2001 and she was minor i.e. child within meaning of Section 2(d) of POCSO Act. This fact has not been disputed by the N.S. Kamble page 6 of 11 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 ::: 14-APEAL-563-2021.doc defence. It is therefore held that at the relevant time the victim was child and provisions of POCSO Act apply to the present case.
9. Though now it is sought to be argued on behalf of the Appellant/Accused that the prosecution has failed to prove the sexual relationship between Accused and Victim, the tenor of the evidence of the victim more particularly cross- examination conducted on behalf of the defence clearly indicates that the physical relationship between the Accused and the victim is not denied. Apart from the said cross- examination, there is medical evidence to support the same.
10. The entire attempt of the defence in cross- examining the victim was to bring on record her consent for the said sexual relationship. Once it is admitted that the victim was minor, her consent becomes immaterial. Having regard to the testimony of victim, her version insofar as the sexual intercourse being committed by the Accused with her found to be reliable. Moreover, it gets support from the medical evidence. This Court therefore finds no hesitation to hold that N.S. Kamble page 7 of 11 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 ::: 14-APEAL-563-2021.doc the offence punishable under Section 376 of the IPC and Section 4 of the POCSO Act has proved against the Appellant/Accused.
11. Merely because the Court accepts the evidence of the victim, insofar as this sexual assault caused on her, it is not necessary that part of the evidence which is not convincing also could become basis for conviction of the Accused for the offence punishable under Section 420 of the IPC. The maxim of faluses in uno and faluses in omnibus has no Application to the India laws. Needless to say that, in order to prove the offence of cheating and more particularly the transfer of money as well as gold ornaments to the Accused by the victim, there has to be cogent evidence to support the same. Here in this case as rightly pointed out by the counsel for the Appellant that except for the oral statement of victim, there is no other evidence to corroborate the said version on her. It cannot ignored that the report came to be lodged only for reason that Accused refused to marry victim.
12. Apart from this, victim claims that she had taken N.S. Kamble page 8 of 11 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 ::: 14-APEAL-563-2021.doc money from Sadam for payment of the amount to the Accused. It was thus possible for the prosecution to examine Sadam which has not been done here in this case. Moreover, even it is accepted by the Investigating Officer in his cross-examination that no receipts of any ornaments were produced during the course of investigation and consequently they were not produced before the Trial Court.
13. Having regard to the such nature of the evidence, it cannot be held that the prosecution has proved the offence punishable under Section 420 of IPC beyond reasonable doubt. The Appellant/Accused therefore deserves to be acquitted from the said charge.
14. On the point of the sentence, the learned counsel for the Appellant/Accused submits that whether the consent of the victim is valid or otherwise, this is a case of love affair and the victim was of sufficient age of maturity, and therefore having regard to the fact that at the relevant time the offences were punishable with minimum sentence of 7 years, the said minimum sentence be imposed against the Accused. The N.S. Kamble page 9 of 11 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 ::: 14-APEAL-563-2021.doc learned counsel for Respondent No.2 and learned APP opposed the said contention and sought confirmation of sentence imposed by Trial Court.
15. The evidence of victim clearly indicates that there was love relationship between the victim and the Accused and the sexual relationship was also consensus in nature. Only because it amounts to statutory rape as the victim was unable to legally consent for consensual relationship the offence is held to be proved. The Appellant has no antecedents. Having regard to the fact of the case, this is a fit case wherein the Appellant/Accused deserves to be sentenced to suffer imprisonment for minimum period prescribed by the law, since it is not open for this Court to reduce the sentence below to the prescribed minimum sentence. In the result following order.
ORDER
(i) The order of conviction of
Accused/Appellant for offence punishable under Section 376 of IPC and 4 of POCSO Act stands confirmed. Hence, he is sentenced to suffer N.S. Kamble page 10 of 11 ::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 ::: 14-APEAL-563-2021.doc rigorous imprisonment for a period of 15 years with fine of Rs.10,000/-(Rs.Ten Thousand), in default, to suffer further RI for 4 (Four) months.
(ii) The Appellant/Accused stands, acquitted for offence punishable under Section 420 of IPC.
(iii) Rest of the order of Trial Court to
remain unchanged.
15. All pending Applications are disposed of.
(R.M. JOSHI, J.)
N.S. Kamble page 11 of 11
::: Uploaded on - 18/12/2025 ::: Downloaded on - 18/12/2025 20:49:42 :::