[Cites 4, Cited by 0]
Bombay High Court
Shaikh Mohammad Tariq Idrish vs U. T. Of Dadra And Nagar Haveli And Ors. on 12 January, 2026
2026:BHC-AS:1112 24-IA-4640-2024.DOC
Rekha Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 4640 OF 2024
IN
CRIMINAL APPEAL NO. 608 OF 2023
Shaikh Mohammad Tariq Idrish ...Applicant
Versus
U. T. Of Dadra And Nagar Haveli And Ors. ...Respondents
Mr. Balkrishna Joshi with Virendra Pethe, for the Applicant/
Appelant.
Mr. Ashwin Thool, standing Counsel with Archishmati
Chandramore, for the Respondent No.1.
Ms. Swarta Suryawanshi, for the Respondent No.2 (Appointed
Advocate)
CORAM: R. M. JOSHI, J.
DATED: 12th JANUARY, 2026.
PC:-
1. This application is for suspension of sentence and
enlargement of the appellant / accused on bail in connection with
Judgment and Order dated 17th February, 2023 , passed in POCSO
Spl. Case No. 04 of 2022, whereby the appellant is convicted for
the offence punishable under Section 376 of the Indian Penal Code
and under Sections 6 of Protection of Children from Sexual
Offences Act, 2012 ( for short "POCSO Act") and sentenced to
suffer maximum sentence of 15 years with fine.
REKHA
PRAKASH
PATIL
Digitally signed by
REKHA PRAKASH
PATIL Page 1 of 6
Date: 2026.01.12
19:15:41 +0530 th
12 January, 2026
::: Uploaded on - 12/01/2026 ::: Downloaded on - 12/01/2026 20:38:50 :::
24-IA-4640-2024.DOC
2. Learned Counsel for the Appellant submits that the evidence
of the victim is not reliable and trustworthy and the same is not
supported by the medical evidence. It is his submission that as per
the case of the victim herself, she was never administered any
substance by the accused so that she can be sexually assaulted. In
this regard, attention of the Court is drawn to the examination-in-
chief of the victim wherein she claimed that she was thirsty and
hence after seeking permission of the accused, she went to the
kitchen and drank water. It is his submission that if it is a case of
the victim that her hands were tied and she resisted to the alleged
act done by the accused, there ought to have been some evidence
indicating injuries on her person, which are absent. It is submitted
that the Investigation Officer has accepted the fact that the
Madarsa wherein the incident has taken place was covered by the
CCTV. Attention of the Court is drawn to the cross-examination of
the Investigating Officer, which shows that the IO went through
the CCTV footage but failed to produce the same before the Court.
It is his submission that the Appellant/Accused had placed on
record said CCTV footage in a pen-drive, however, the Court
refused to accept the said evidence for want of certificate under
Section 65B of the Evidence Act. It is his submission that the
Appellant/Accused is behind the bar since for a period of four
years now and considering the possibility of his success in the
Appeal, he deserves bail. Learned Counsel for the Appellant/
Applicant further submits that there is no criminal history behind
him.
Page 2 of 6
th
12 January, 2026
::: Uploaded on - 12/01/2026 ::: Downloaded on - 12/01/2026 20:38:50 :::
24-IA-4640-2024.DOC
3. Learned standing Counsel for Union of India and learned
Counsel for the Respondent No.2 oppose the Application. It is
their contention that the testimony of victim is sufficient to convict
the Appellant/Accused and the same is duly corroborated by the
medical evidence. In this regard reference is made to the evidence
of PW-3 Medical Officer. It is argued that since the victim became
dizzy after consuming the water, she could not possibly resisted
accised in full force so also taking into consider her age as
compared with the age of the accused, in any case her asisstence
would fall short. It is, therefore, submitted that non-presence of
any injury mark on her person is not a ground to grant bail to the
Appellant/Applicant.
4. In order to seeks suspension of substantive sentence and
enlargement on bail, the Appellant/Applicant has to make out a
prima facie case of fair chances of success in the Appeal. Herein
the case, the victim claims about she being sexually assaulted by
the accused, however, it is her contention that after drinking water
she became dizzy and accused started overpowering her. Since she
probably became unconscious, she is not narrating the exact
incident of sexual intercourse in her evidence. She, however,
specifically states that the Appellant/Applicant had tied her hands
and she resisted. Even if it is accepted that the victim could not
have registered full fledged resistance to the accused, however, she
claims that they had fight and her hands were tied. The victim was
examined. The incident is occurred on 21 st November, 2021 and
the victim is examined by the Medical Officer on 23 rd November,
Page 3 of 6
th
12 January, 2026
::: Uploaded on - 12/01/2026 ::: Downloaded on - 12/01/2026 20:38:50 :::
24-IA-4640-2024.DOC
2021. In such circumstances, there could have been some injuries
on her person. Apart from this, the victim admits that on the next
of the incident she went to another hospital, however, she has not
disclosed the occurrence of the incident to the Medical Officer
therein.
5. No doubt, the testimony of a victim if inspires confidence, it
sufficient to convict the accused person even without
corroboration. However, at the same time, merely because there is
no enmity between the parties, the case of accused cannot be
discarded by ignoring evidence on record. Herein this case, most
importantly the Investigating Officer admits about existence of
CCTV in the Madarsa. The admissions of the panch witnesses so
also the Investigating Officer clearly indicate that it was possible
for the Investigating Agency to bring it on record through CCTV
footage that at the instance of the accused, the victim went to the
gate of the hall locked it and thereafter, the incident of question
had occurred. It could have also be seen therefrom as to whether
the accused was present in Madarsa at the time of occurrence of
incident or had left the place as claimed by him. The Investigating
Officer candidly admits on going through the CCTV footage in
question. Now, question arises what has prevented the
Investigating Agency to bring the said CCTV footage on record.
There is no justification/reason provided for it's non production.
This Court finds substance in the contention of Counsel for the
Appellant/Applicant that for non production of the CCTV footage,
adverse inference may be drawn that since it was showing the
Page 4 of 6
th
12 January, 2026
::: Uploaded on - 12/01/2026 ::: Downloaded on - 12/01/2026 20:38:50 :::
24-IA-4640-2024.DOC
innocence of the accused, it was withheld from the Court.
Similarly, merely because of factum of torn hymen without any
injuries attributed to the incident, there can be no conviction of
accused.
6. The above discussion clearly indicates that the
Appellant/Applicant has a reasonable chance of success in the
Appeal. He is behind the bar for a period of 4 ½ years . The
Appeal is not likely to be heard in short period of time. The
Appellant/Applicant has no criminal history and he is not likely to
flee from justice. Hench, the following order.
ORDER
(a) The Interim Application is allowed.
(b) The substantive sentence imposed against the
Applicant/ Appellant by Judgment and Order dated
17th February, 2023 passed in POCSO Spl. Case No. 4
of 2023 stands suspended till decision of the Appeal.
(c) The Applicant/Appellant be enlarged on bail on
furnishing P.R. bond of Rs.15,000/- with one surety in
the like amount.
(d) The Applicant/Appellant not to contact the victim or
other girls witnesses in any manner whatsoever.
th
12 January, 2026
24-IA-4640-2024.DOC
(f) Any breach of aforestated condition shall result into
forthwith cancellation of bail.
7. In view of the above, Interim Application stands disposed of.
8. It is clarified that the above observations are made on prima
facie consideration of the material on record and the same shall
not bind the parties during the final hearing of the Appeal.
(R. M. JOSHI, J.)
{
th
12 January, 2026
