SHAIKH MOHAMMAD TARIQ IDRISH Vs. U.T. OF DADRA AND NAGAR HAVELI

JUDGEMENT

(1.) This application is for suspension of sentence and enlargement of the appellant / accused on bail in connection with Judgment and Order dtd. 17/2/2023 , passed in POCSO Spl. Case No. 04 of 2022, whereby the appellant is convicted for the offence punishable under Sec. 376 of the Indian Penal Code and under Ss. 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.

(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 Sec. 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.

(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.