Bombay High Court: In an appeal challenging the life sentence imposed on a father for sexually assaulting his daughter, the Division Bench of Manish Pitale* and Shreeram V. Shirsat, JJ., observed that the victim was proved to be a minor and her sole testimony was sterling and sufficient to convict the accused, and that medical evidence did not demolish the ocular account. The Court, while dismissing the appeal, held that if the accused is found guilty of an offence under Section 376(2)(f), Penal Code, 1860 (IPC), deserving a life sentence, there is no discretion left in the Court, but to sentence him for imprisonment for the remainder of his life.
Background
On 27 July 2018, a daughter (victim) filed an FIR accusing her own father (accused) of rape, alleging that since the age of 10 years, she was touched inappropriately and that in the three months prior to her statement there were at least four incidents of sexual abuse, with the latest incident on 21 July 2018. After a “Police Didi” program in her school, she approached the police with the assistance of the Principal and counsellor. An investigation was conducted and the trial court convicted and sentenced the accused for offences under Section 376(2)(f) IPC and Sections 6 and 9(n) read with Section 10, Protection of Children from Sexual Offences Act, 2012 (POCSO Act), leading to the present appeal.
The accused’s counsel submitted that the prosecution failed to prove that the victim was a minor and urged that the case was false as the victim was upset with her father regarding his decision to discontinue her studies. It was argued that the evidence of the prosecution witnesses was not enough to prove the case against the accused. It was submitted that the medical evidence did not corroborate the daughter’s claims and that in the accommodation i.e. small room in which the entire family of about 7 persons were living, the incidents alleged could never have taken place. The victim contended that the incidents occurred at a wooden plank attached to the wall, but it was argued that the plank was of such a small size that the incidents could not have occurred. The evidence was not sufficient to prove that the victim was a minor at the time of alleged incidents. The ossification test showed the victim’s age could be between 17 and 18 years, and as per the settled law the upper limit is adopted, therefore, her age must be taken as 18, giving the accused the benefit.
On the other hand, the State submitted that detailed oral and documentary evidence proved that the victim was below 18 years, particularly the original admission register of the municipal school showing the date of birth as 15 February 2002. It was further submitted that in the statement under Section 313, Criminal Procedure Code, 1973 (CrPC), the accused admitted the victim’s date of birth and that she was less than 18 years. It was urged that victim’s testimony was sterling in quality and sufficient by itself. The State contended that the victim’s alleged anger over discontinuing her studies could not justify her making such grave, serious, and scandalous allegations against her own father. Further, the medical evidence confirmed the presence of hymenal tears, and since the last alleged incident occurred on 21 July 2018 while the FIR was lodged on 27 July 2018, the delay adequately explained why the tears were old rather than fresh.
Analysis and Decision
The Court relied on Vishnu v. State of Maharashtra, (2006) 1 SCC 283, wherein the Supreme Court observed that documents ought to be given primacy over medical reports and that the best evidence for date of birth is that of the parents. The Court referred to Jarnail Singh v. State of Haryana, (2013) 7 SCC 263, wherein the Rule 12, Juvenile Justice (Care and Protection of Children) Rules, 2007 (JJ Rules) for age determination was extended to child victims of crime along with juvenile in conflict with law.
The Court relied on Rishipal Singh Solanki v. State of U.P., (2022) 8 SCC 602, which clarified that public or official documents under Section 35, Evidence Act, 1872 (Evidence Act) have greater credibility than private documents and that ossification test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination, as it is only a guiding factor. The Court referred to Yuvaprakash v. State of T.N., (2024) 17 SCC 684, which held that Section 94, Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) would also apply to accused prosecuted under POCSO Act.
The Court observed that applying Section 94, JJ Act, documentary material must be given primacy over any medical or ossification test. The manner in which the said provision lays down the requirement of determining date of birth, makes it abundantly clear that in the first place, school records are to be given primacy and only thereafter, can an ossification test or medical test be ordered for determination of an individual’s age.
The Court noted that the accused had himself admitted that his daughter was a minor at the time of the incidents and that her date of birth was indeed 15 February 2002. The Court observed that the Principal of victim’s first school produced the original admission register showing the date of birth as 15 February 2002, which was a public or official document maintained in discharge of official duty, thus satisfying Section 35, Evidence Act. The Court highlighted that, in the face of such credible documentary material and admissions, there was no necessity to rely on the medical or ossification test report and opined that the accused’s prosecution under POCSO Act was correct.
The Court emphasised that the settled law is that the sole testimony of the prosecutrix is enough to return a finding of conviction, so long as the evidence of the prosecutrix inspires confidence and that minor discrepancies cannot throw out the testimony. The Court observed that the victim’s testimony was steadfast, with graphic details of the assaults, and her cross-examination could not shake her version. Regarding the argument that the sexual assaults were impossible as the house had only one room, the Court noted that the prosecution placed on record circumstances to show that there were occasions when the accused and the daughter were together in the said room.
The Court further observed that the evidence of the Principal of victim’s school, the counsellor who conducted “Police Didi” and the social worker who assisted her in the case, naturally explained how the victim gathered courage and reported the matter and their evidence sufficiently corroborated the victim’s version, although her sole testimony was enough to prove the accused’s guilt. The Court noted the doctor’s deposition of old hymenal tears and that a week was generally required for healing of a hymenal injury. The Court found that the medical evidence corroborated the victim’s allegations and observed that it was settled law that ocular evidence always trumps medical evidence.
The Court found the plea of false implication due to proposed discontinuation of studies far-fetched and opined that anger about studies could not lead to such grave and scandalous allegations against one’s own father. The Court relied on Bhanei Prasad v. State of H.P., 2025 SCC OnLine SC 1636, wherein it was observed that:
“When a child is forced to suffer at the hands of her own father, the law must speak in a voice that is resolute and uncompromising. There can be no mitigation in sentencing for crimes that subvert the very notion of family as a space of security.”
The Court highlighted that the accused was convicted and sentenced under Section 376(2)(f) IPC and he was in a position of trust and authority over the victim, and hence the ingredients of the said offence were clearly made out. The Court relied on Jagannath Pandurang Waghare v. State of Maharashtra, 2025 SCC OnLine Bom 5256, and observed that once it is concluded that the accused is guilty of an offence under Section 376(2)(f) IPC and he deserves sentence of imprisonment for life, there is no discretion left in the Court, but to sentence him for imprisonment for the remainder of his life.
Accordingly, the Court, while dismissing the appeal, held that the trial court did not commit any error in convicting and sentencing the accused.
[Mohammad Shahjad Amir Hasan Shaikh v. State of Maharashtra, Interim Application No. 75 of 2021, decided on 9-3-2026]
*Judgment authored by: Justice Manish Pitale
Advocates who appeared in this case:
For the Accused: Fauzan Shaikh a/w Mohd. Munerul Shaikh, Shashank Shubham and M. B. Shaikh, Advocates.
For the Respondents: Sangita E. Phad, APP, Abhijit P. Kulkarni (appointed through legal aid) a/w Abhishek Roy, Sweta Shah, Shreyas Zarkar and Gourav Shahane, Advocates.
Buy Protection of Children from Sexual Offences Act, 2012 HERE
Buy Juvenile Justice (Care and Protection of Children) Act, 2015 HERE
