Bombay High Court
Ashwin Mohanlal Parikh And Anr vs The State Of Maharashtra And Anr on 8 April, 2021
Bench: R.P. Mohite-Dere
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL INTERIM APPLICATION NO.974 OF 2021
IN
CRIMINAL APPEAL NO.251 OF 2021
1. Ashwin Mohanlal Parikh
2. Vimlaben Ashwin Parikh ...Applicants
Versus
State of Maharashtra and Anr. ...Respondents
Mr. Dinesh Tiwari a/w Mr. Mikhail Dey, Mr. Ansh Karnawat and Mr.
Santosh Pawar i/b Dinesh D. Tiwari and Associates, for the Applicants.
Ms. S. V. Sonawane, A.P.P for the Respondent No.1 - State.
Ms. Ameeta Kuttikrishnan, Appointed Advocate for the Respondent No.2.
CORAM : REVATI MOHITE DERE, J.
DATE : 8th APRIL, 2021
P.C. :
1. Heard learned counsel for the parties.
2. By this application, the applicants seek suspension of their
sentence and enlargement on bail, pending the hearing and final disposal
of their appeal.
3. The Applicants vide Judgment and Order dated 11 th March
2021 passed by learned Special Judge under P.O.C.S.O. Act, 2012, Greater
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Bombay, in POCSO Special Case No.900 of 2013, have been convicted
and sentenced as under:-
- for the offences punishable under Section 6 of the Protection of
Children from Sexual Offences Act, to suffer rigorous imprisonment for 10
years and to pay fine of Rs.1,000/- each, in default of payment of fine, to
undergo simple imprisonment for 1 month;
- for the offence punishable under Section 354 r/w Section 34 of the
Indian Penal Code and Section 4 of the Protection of Children from Sexual
Offences Act. However, no separate sentence has been imposed.
- the appellants were however acquitted of the offences punishable
under Section 354 r/w Section 34 of the Indian Penal Code and Section 4
of the Protection of Children from Sexual Offences Act;
- No separate sentence was imposed for the offence punishable under
Section 376 of the Indian Penal Code in view of Section 42 of the
Protection of Children from Sexual Offences Act.
4. Learned Counsel for the applicants submits that the allegations
against the applicants, aged 87 and 81 years respectively (husband and
wife) are false and baseless. He submits that the evidence on record will
show the falsity of the case. He submits that there are several
inconsistencies in the evidence of witnesses, in particular, PW 1 and PW 2,
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so also material omissions. He submits that PW 1 - mother of the
prosecutrix had initially stated that applicant No.1 had inserted his finger in
the private part of the prosecutrix, however, subsequently has stated that
applicant No.2 also did the same act. He submits that the prosecutrix has
only stated that the applicant No.1 touched her inappropriately on her
private part and made no allegation as against applicant No.2 of
inappropriate touching. Learned Counsel relied on paras 14, 15 and 16 of
the cross-examination of PW 7 - Dr. Prajakta Ahire with respect to the
medical evidence that has come on record. According to the learned
counsel for the applicants the reason for falsely implicating the applicants
was for taking over the house of the applicants, in which they are staying.
Learned Counsel further submitted that considering the age of the
applicants i.e. 87 and 81 years and the fact, that the applicants were on bail
and also having regard to the evidence that has come on record, the
applicants sentence be suspended and they be enlarged on bail.
5. Learned APP as well as learned appointed advocate for the
respondent No.2 opposed the application.
6. Perused the papers. Prima facie, there are certain
inconsistencies that have come on record in the evidence of PW 1 and PW
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2. There are also certain omissions that have come on record in the
evidence of PW 1 with respect to what was deposed to, by her in her
examination-in-chief. The medical evidence on record will also have to be
considered in particular, having regard to what is stated by PW 7 - Ahire in
paras 14 to 16, of the cross-examination. It appears that initially when the
FIR was lodged, the same was lodged for the offence punishable under
Section 354 r/w Section 34 of the Indian Penal Code and subsequently
Section 376 of the Indian Penal Code and provisions of POCSO were
added. This Court had enlarged the said applicants on bail pending the
trial. The said order is on page 11 of the aforesaid appeal.
7. The applicants, aged 87 and 81 years respectively were on bail
pending trial and have not abused or misused the liberty granted to them.
Prima facie, having considered the evidence on record, the applicants have
made out a case for suspending their sentence and enlargement on bail.
8. Considering the aforesaid, the application is allowed and the
applicants sentence is suspended and they are enlarged on bail, pending the
hearing and final disposal of their Appeal, on the following terms and
conditions :
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ORDER
i) The Applicants be released on cash bail in the sum of
Rs.25,000/- each, for a period of six weeks;
ii) The Applicants shall within the said period of six weeks,
furnish P.R. Bond in the sum of Rs.25,000/- each, with one or more
sureties in the like amount.
9. The Application is allowed in the aforesaid terms and is
accordingly disposed of.
10. The High Court Legal Services Committee, Mumbai, to pay
the fees as per Rules to Ms. Ameeta Kuttikrishnan, learned appointed
advocate, who has espoused the cause of the respondent No.2.
11. Copy of this order be forwarded to the High Court Legal
Services Committee, for information and necessary action.
12. All concerned to act on the authenticated copy of this order.
REVATI MOHITE DERE, J.
