Bombay High Court
Jamil Amir Shaikh vs The State Of Maharashtra And ... on 25 July, 2023
Bench: S. G. Mehare
2023:BHC-AUG:15804
1 955-CrAn-1284-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1284 OF 2023
IN APEAL/260/2023 WITH APEAL/260/2023
JAMIL AMIR SHAIKH
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Applicant : Mr. Satej S. Jadhav
APP for Respondent No.1/State : Mr. S. B. Narwade
Advocate for Respondent No.2/victim : Mr. U. L. Telgaonkar
...
CORAM : S. G. MEHARE, J.
DATE : 25-07-2023
PER COURT :-
1. Heard the learned counsel for the applicant, the learned
A.P.P. for respondent No.1/State and the learned counsel for
respondent No.2.
2. The applicant is seeking suspension of sentence imposed
upon him, in Special (POCSO) Case No.46 of 2021, by the learned
Special Judge, Vaijapur, District Aurangabad, on 15.03.2023, to
suffer rigorous imprisonment of twenty years for the offence
punishable under Section 376 of the Indian Penal Code and Section
4(2) of the Protection of Children from Sexual Offences Act, 2012
and one year for the offence punishable under Section 506(2) of
the Indian Penal Code.
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3. The learned counsel for the applicant submits that the fine
amount has been deposited. The receipt has been taken on record
and marked as Annexure- 'A'.
4. The learned counsel for the applicant would submit that the
prosecution did not produce the CCTV footage though recovered
from the house of the accused. It was withheld for no reason.
Hence, the learned trial Court should have drawn adverse
inference against the prosecution. The learned Special Court did
not assign the reason for withholding such material evidence. He
barely observed that the CCTV footage was seized and proven.
Barely proving recovery of the material is not sufficient. Such
evidence should be on record that may assist the Court in arriving
at the proper conclusion, and the accused may also put his better
defence.
5. The learned counsel for the applicant would also submit that
there is no evidence that any witness saw the victim coming out of
the house. On the contrary, she was found standing on the road.
The victim was just 13 years old; hence, there is great possibility
of tutoring her. He also pointed out that the medical evidence also
does not support the prosecution. The medical officer has candidly
admitted that the victim had an old hymen tear injury. He would
point out that the accused was a fully grown-up male. If really
there has been sexual assault for two hours, as the victim narrated
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to the Medical Officer, there must be a serious injury to the private
part of the victim. The Medical Officer also did not opine that she
had sexual intercourse before the alleged incident. He would also
point out that the allegations have been levelled against the
applicant that the victim was introduced through her sister-in-law,
but there is no evidence to believe such allegations. Merely
making a phone call would not mean that she was called for sexual
assault. Considering the material brought on record, the trial Court
has incorrectly inferred that the evidence of the victim inspires
confidence. There must be strong circumstantial evidence to
believe that the statement of the victim inspires confidence. Only
deposing, as narrated to the Police before entering into the
witness box, is not sufficient to believe that the statement of the
witness inspires confidence. He would also argue that the learned
Sessions Judge did not consider the delay in lodging the first
information report and, more particularly, the admission of the
victim that she had not immediately disclosed the incident. Her
evidence reveals that she was forced to say against the accused. It
is self-sufficient to raise doubt over the prosecution witnesses. The
Investigating Officer has not done the investigation seriously. It
was a case of serious offence. Due care ought to have been taken
to produce complete evidence before the Court to arrive at the
correct conclusion. The CCTV footage was the best evidence. The
man may lie, but machines do not. If the applicant has some
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relationship with the victim and is admitted for the sake of
argument, that may be another offence and certainly not the
penetrative assault. The applicant is a young married person
running 34 years. Due to incorrect appreciation of the evidence,
the applicant has been sentenced to suffer a long conviction of 20
years. On the basis of the above argument, he prayed to suspend
the sentence.
6. The learned A.P.P. for the State and the learned counsel for
respondent No.2/victim have vehemently opposed the application.
They have argued that the victim was the daughter's age of the
applicant. It has been proved that the applicant called the victim
at odd hours on the telephone, and the accused also did not deny
it. The applicant has no specific evidence as to how he has been
falsely implicated in the crime, and not a single suggestion has
been put to the witnesses on his false implication. On the contrary,
his defence reveals that it was a consensual relationship. The
victim was around 13 years old and unable to take appropriate
decisions. She was just in her menstruation. The applicant took the
victim, who could not decide, and did forceful sex. The applicant
cannot take advantage of the mistakes committed by the
Investigating Officer. Considering the age of the victim, a
resistance mark may not be possible. The offence is serious. The
evidence has been correctly appreciated. Therefore, the applicant
does not deserve suspension of sentence.
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7. Perused the impugned judgment and order and the
depositions referred to by the learned counsel for the applicant as
well as learned A.P.P. and the learned counsel for the victim.
8. It is admitted that the Investigating Officer had collected the
CCTV footage from the house of the accused. Its seizure
panchnama has been proved. Neither the CCTV footage nor its
transcription was produced on record. I think it was the best
evidence to prove that the applicant took the victim to his house
and did sex. Section 114 illustration (g) of the Indian Evidence Act
provides that the Court may presume that the evidence which
could be and is not produced would, if produced, be unfavourable
to the persons who withheld it. It is the settled law of evidence
that the best available evidence shall be produced before the
Court to prove the facts or points in issue. However, where such
evidence is withheld, adverse inference shall be drawn against
such person. Besides this, there was no circumstantial evidence to
prove the factum of sexual assault. The offence is serious, so there
must be strict proof and evidence. The law is well settled that the
slightest doubt gives the benefit of the doubt to the accused.
Appreciating the evidence cumulatively, the Court is of the view
that there are strong points to consider, from the sexual
penetrative assault to the presence of the victim in the house of
the accused.
6 955-CrAn-1284-23.odt
9. At the cost of repetition, it would be stated that the CCTV
footage recovered from the house of the accused was not
produced, which may be a ground to suspend the sentence. The
Court is not oblivious to the law that the sole testimony of a raped
woman is sufficient to convict the accused, provided it must
inspire confidence. However, wherever the circumstances raise
doubt, the Court has to search for corroborative evidence. After
the hearing, the Court is of the view that there are various legal
aspects to be considered. The evidence on record supports the
Court to exercise discretion under Section 389 of Cr.P.C. That
apart, the appeal may take its time. There is no possibility of
hearing the appeal in the near future as numerous appeals of the
convicts undergoing sentences are pending. Hence, the order:-
i) Application is allowed.
ii) The execution, implementation, effect and operation of the
sentence imposed upon the applicant, in Special (POCSO)
Case No.46 of 2021, by the learned Special Judge, Vaijapur,
District Aurangabad, on 15.03.2023, to suffer rigorous
imprisonment of twenty years for the offence punishable
under Section 376 of the Indian Penal Code and Section 4(2)
of the Protection of Children from Sexual Offences Act, 2012
and one year for the offence punishable under Section
506(2) of the Indian Penal Code, is suspended till conclusion
of the trial.
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iii) Applicant Jamil Amir Shaikh be released on bail on furnishing
P.B. and S.B. of Rs.50,000/-, with one solvent surety of like
amount.
iv) Bail before the learned Special Judge/Additional Sessions
Judge at Vaijapur, District Aurangabad.
v) List the appeal on 21.08.2023.
( S. G. MEHARE )
JUDGE
rrd
