1 CrAppln2128.2025+ IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2128 OF 2025 WITH CRIMINAL APPEAL NO.341 OF 2025 . SAMESHER S/O SATTAR PATHAN, Age: 35 years, Occu.: Nil, R/o. Chandroday Colony, Prakash Nagar, Taluka and District Latur .. Applicant Versus . The State of Maharashtra, Through the Police Station Officer, M.I.D.C. Police Station, Latur, Taluka and District Latur .. Respondent … Advocate for Applicant: Mr. P. P. Giri APP for Respondent / State: Mrs. V. N. Patil Jadhav … CORAM : ARUN R. PEDNEKER, J. DATE : 23.07.2025 ORDER : 1] Heard. 2] The applicant / appellant has filed criminal application for suspension of substantive sentence and grant of bail, and, also, criminal appeal against conviction. 3] The present application has been filed by the 2025:BHC-AUG:19193 2 CrAppln2128.2025+ applicant for suspension of substantive sentence imposed on him in Sessions Case no.13/2016, dated 18.09.2024, by learned Sessions Judge, Latur. The applicant has been convicted thus: “1) The accused Samsher Sattar Pathan, R/o. Chandroday Colony, Prakash Nagar, Latur is convicted under section 235(2) of Criminal Procedure Code for the offence punishable under section 376 (2)(k)(n) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten (10) years and to pay fine of Rs. 50,000/- (Rs. Fifty Thousands) in default to suffer simple imprisonment for 03 years. 2) He is further convicted for the offence punishable under section 354 (C) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one (01) year and to pay fine of Rs. 25,000/- (Rs. Twenty Five Thousands) in default to suffer simple imprisonment for 01 year. 3) He is further convicted for the offence punishable under Section 66-E of the Information Technology Act and sentenced to suffer rigorous imprisonment for one (01) year and to pay fine of Rs. 25,000/- (Rs. Twenty Five Thousands) in default to suffer simple imprisonment for 01 year. 4) All the sentences imposed on accused shall run concurrently.” 4] Primary submission of the learned counsel for the applicant / appellant is that the applicant / appellant was on bail during the pendency of the trial . The maximum sentence is of 10 years and he has already undergone 11 months and that the appeal would take substantial time and that he has good ground of succeeding in appeal, which are 3 CrAppln2128.2025+ noted in the appeal memo and prayed that sentence be suspended. 5] The case of the prosecution is noted in the trial court Judgment, at paragraphs no.2 and 3, is as under: “02. In brief the prosecution case is as follows ; The victim girl lodged report on dated 07/08/2015 in MIDC, Police Station, Latur contending that, before six months of 07/08/2015 she was going to her computer class, at that time the accused stalked her, and introduced himself to her. He told her that he loves her, and if she refused, he threatened to see her. She further contended that, before one and half month of 07/08/2015, the accused called her in room of Mr. Deshmukh situated in the Government Colony, Barshi Road, Latur. At there he told her that, he loves her and wants to marry her, by saying so he committed rape on her. At that time he snapped her nude photographs and also made it’s shooting. She alleged that, thereafter by threatening her to show her nude photographs to others started to blackmail her and torture her. She alleged that, the accused by blackmailing her used to take her in the room of Mr. Deshmukh and commit rape on her. She alleged that, the accused had given her one mobile wherein there was sim having No.8856041629. The accused used to call her on that mobile and used to threaten her. She alleged that, on 11/07/2015 when she was going to computer class the accused came near a Water Tank and met her and asked her to come with him. She replied him that, she has to go to class, upon which he reminded her that her nude photographs are with him, as such she went with him. The time was 12.30 to 1.00 pm. She alleged that, the accused by threatening committed sexual intercourse with her. When they were in the room, she heard noise of people from outside, they asked to open the door. They asked them as to how they are in the said room upon which the accused told them that he wants to marry her. She contended 4 CrAppln2128.2025+ that, the accused told her to explain the people that she voluntary came there with him. After some time police came there. Her father was also called there. Thereafter, she went to her house with her father at 3.00 pm. 03. She alleged that, on 03/08/2015 when she was going towards a shop situated near her house, the accused came there and asked her to speak with him otherwise he will show her photographs to others by saying so he gave one mobile of Samsung company to her. She alleged that, as her photographs are with the accused, she is in mental trauma, she disclosed this incident to her parents. Her parents gave courage to her and thereafter, she lodged report in MIDC, Police Station, Latur. On the basis of the report lodged by the MIDC Police Station, the MIDC police registered crime No.192/2015 for the offence punishable under sections 376 (2) (k) (n), 354 (C) of the Indian Penal Code and 66(C) of the Information Technology Act. The investigation of the said crime was handed over to the Sub-Divisional Police Officer, Mr. Mangesh Chavan. The investigating officer during the course of investigation visited the spot of incident and prepared spot panchnama. He recorded statements of witnesses, referred the victim for her medical examination. During the course of investigation the accused was arrested by PW16 Deepratn Gaikwad. PW16 Deepratna Gaikwad seized one samsung company mobile from the accused at the time of his arrest. Some photographs and messages were in the said mobile, the same were sent to the informant. She identified the same. The photographs in the mobile of the accused were nude photographs of the informant. The mobile seized from the accused was sent to FSL, Kalina, Mumbai for its examination. During investigation the IO seized mobile of the victim. He got recorded her statement under section 164 of the Code of Criminal Procedure by the magistrate. During investigation the IO received the C.A. reports in respect of the muddemal articles. After completion of investigation the IO submitted charge-sheet in the Judicial Magistrate First Class, Court, Latur.” 5 CrAppln2128.2025+ 6] The learned counsel for the applicant submits that trial court has failed to appreciate that the victim is a grown up lady of 22 years and the entire tenor of her evidence goes to suggest that she had love affair with the applicant / appellant and the sexual relations were not established forcefully. He submits that the trial court has failed to appreciate the evidence of PW-2 father of the victim, where he admitted that his daughter has told him that she is having love affair with the applicant / appellant and, thus, it is clear that because the parties belongs to different religions, to protect the name and reputation of the family the allegations are made in the FIR. The FIR is registered 22 days after the alleged first incident and that 4 days after the second incident. 7] Per contra, the learned APP submits that the case as put up by the prosecution is that the prosecutrix may have been in relation with the applicant, however, the earlier friendly relations were exploited by the applicant in view of the compromised photographs available with him of the victim and, thereafter, the applicant has exploited the victim. 8] The learned APP pointed out paragraphs no.29, 30 and 31 of the trial court Judgment, more particularly, Whatsapp messages at Serial No.88, 89 and 90 and submits that subsequent consent of the victim was under fear and 6 CrAppln2128.2025+ threat and, as such, urged that the application be rejected. 9] Having perused the trial court Judgment, more particularly, paragraphs No.29, 30 and 31, where the trial court has relied upon the Whatsapp messages at serial nos.88, 89 and 90, as under: “88.A faltu uchal na cl… bhenchod ka doka garam karat ahes… tu nit bolaychya lykichi nahis… 89.ani tu ahi tar mhan mag bag 90.Mom chi shappat aaj me kharach gavala janar ahe:- “ani aaj jar tu mala kahi pan karun nai jar bhetli tar mag tu kharach bag me kay karto…etke divas me tula bhetayla yet hoto tr fakt bhetNya sathi pan aaj me sex karnar ahe… te pan sangun.” 10] The trial court held that the victim had kept physical relations with the accused with her consent, however, later on when she changed her mind and refused for such relationship, the accused should have stopped from pursuing the victim to keep physical relationship with him. The accused having nude photographs of the victim, started to use the same to pressurize the victim. 11] Record shows that the Investigating Officer after seizure of the mobile phone of the accused had sent the same to the FSL Mumbai. The mobile of the accused Article-1 was examined by PW-15 and submitted his report, which is at Exhibit-155. To prove the report Exhibit-155 the prosecution has examined PW-15 and he deposed about 7 CrAppln2128.2025+ messages at Serial No.88, 89 and 90, which were found in the mobile of the accused, and the photographs. The witness was cross-examined, during cross examination he admitted that the CD before the court is the copy of the CD, which is kept in his office. But the court observed that the court is not relying upon the CD, which is before the court but relying upon the direct evidence of PW-15 and the report at Exhibit-155 to arrive at conclusion that the accused had sent messages at Serial No.88, 89 and 90 from his mobile to the victim. 12] From the above it is obvious that the mobile phone was not shown to the court and opinion of the expert i.e. report of the expert was produced by the expert. Prima facie, this is a secondary evidence unless the mobile as shown to the court or that the secondary evidence was proved in terms of the provisions of Section 65 of the Indian Evidence Act, the same cannot be relied. The report of expert could not have been relied upon. The expert has seen the mobile and has opined only of the three messages on the mobile. However, the mobile was not opened up and all the messages were not displayed. The mobile was not shown in the court with the messages and what is produced is only Exhibit-155, an opinion of the expert. This court in Criminal Appeal No.103 of 2017 by order dated 05.08.2022 has observed that if the transcripts of the dialogues exchanged is stated to have been prepared on the basis of 8 CrAppln2128.2025+ what was heard from the voice recorder is not sufficient merely to be proved by the testimony. The voice recorded will have to played in the court and the court has to form an opinion. It is for the court to come to the conclusion that the voice is of the accused. 13] Prima facie, since, the conviction is based upon 3 of the messages on Whatsapp, the proof of the messages, so also, other connecting messages being not displayed to the court to understand the entire conversation and to understand the nature of relations between the parties, the prosecution statement about initial consensual relations, which later on continued on the basis of threat is seriously doubtful. The applicant / appellant has good case on merits. 14] In view of the above, Criminal Appeal No.341 of 2025 is admitted. 15] In Criminal Application No.2128 of 2025, considering the above, I pass the following order : ORDER i] Criminal Application is allowed. ii] The substantive sentence imposed on the applicant in Sessions Case no.13/2016, dated 18.09.2024, by learned Sessions Judge, Latur stands suspended till the final hearing and disposal of Criminal Appeal. 9 CrAppln2128.2025+ iii] The applicant be released on bail on furnishing P.R.bond of Rs.20,000/- with one or two sureties in the like amount to the satisfaction of the trial court. iv] Bail before the trial Court. [ARUN R. PEDNEKER] JUDGE marathe