Bombay High Court
Shaikh Jamil @ Rahil Khan S/O Shaikh ... vs The State Of Maharashtra And Another on 3 May, 2024
2024:BHC-AUG:9907
-1-
914-APPLN.844.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 844 OF 2022
IN APEAL/181/2022
Shaikh Jamil @ Rahil Khan
S/o Shaikh Abdul Shukkur
Age : 34 years, Occu. : Private Service,
R/o. In front of Ali Masjid, Ansar Colony,
Padegaon, Tq. & Dist. Aurangabad. ... Applicant
(Orig. Accused)
Versus
1. The State of Maharashtra
2. X.Y.Z. ... Respondents
...
Mr. P. N. Ghadge, Advocate for Applicant.
Mrs. Ashlesha Deshmukh, APP for Respondent - State.
Mr.R. M. Gaikwad h/f.Mr. M.M. Ambhore, Advocate for Respondent No.2.
...
CORAM : ABHAY S. WAGHWASE, J.
DATED : 3rd MAY, 2024
PER COURT :
1. By way of instant application, applicant is seeking
suspension of sentence and grant of bail on account of his
conviction recorded by learned Special Judge (POCSO),
Aurangabad in Special Case (POCSO) No. 64 of 2016, dated
13.11.2021.
2. Learned counsel for applicant pointed out that,
914-APPLN.844.2022
applicant was charge-sheeted for commission of offence under
sections 376(2)(i) of Indian Penal Code (IPC) and under section 3
read with section 4 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act). That, he faced trial before learned
Additional Sessions Judge, Aurangabad, vide Special Caes (POCSO)
No.64 of 2016 and he pointed out that finally on conclusions of
trial, applicant was held guilty for offence punishable under section
376(2)(i) of IPC and under sections 3 read with section 4 of POCSO
Act.
3. It is further pointed out that, exception has been taken
to the said judgment by filing Criminal Appeal bearing No.181 of
2022. The same is pending. According to him, there is false
implication. That, there was love relation between accused and
complainant. That, there was solitary incident of physical contact,
but it was consensual. He pointed out that, material witnesses are
not examined, and therefore, there is a good case on merits in
appeal. He pointed out that, already applicant is behind the bars
since almost 8 years and hence, he prayed for suspension of
sentence and grant of bail during pendency of appeal.
4. Strongly opposing the above application, learned APP
as well as learned counsel for victim, both pointed out that, victim
914-APPLN.844.2022
is proved to be below 16 years of age i.e. she had completed barely
15 years of the age, and therefore, according to them, it is not open
for accused to force plea of consent. It is pointed out that, accused
had taken her and had committed sexual intercourse with her.
Being minor provisions of POCSO Act were attracted and therefore
only on due satisfaction and availability of evidence, guilt has been
recorded. For offence being serious, they both prayed to refuse and
reject the relief so prayed.
5. After hearing submissions of both sides and on going
through the papers, it seems that, accused was charge-sheeted for
commission of offence under sections 376(2)(i) of IPC and under
section 3 read with section 4 of POCSO Act. Trial seems to have
concluded on 13.11.2021 holding applicant guilty for all above
charges.
6. Prosecution has established age of victim by adducing
evidence of official of school at Exhs. 36, 37 and 38. Date of birth of
victim is reported as 09.12.2000. Taking into consideration the
date of occurrence, which is reflected in the complaint apparently
victim below 16 years of age. Case of love affair and consent has
been primarily put-forth, but in view of above age and she being a
minor, such plea vanishes in thin air.
914-APPLN.844.2022
7. Taking the gravity of the offence into consideration and
seriousness of the crime, though applicant is behind the bars since
8 years, he has been already sentenced to suffer imprisonment for
20 years. In the light of such material, relief so prayed cannot be
granted.
8. Criminal Application stands rejected.
(ABHAY S. WAGHWASE, J.)
Tandale
