Bombay High Court
Sukhalal Shrimant Jadhav ... vs The State Of Maharashtra on 9 April, 2021
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION (ST) NO.5194 OF 2020
IN
CRIMINAL APPEAL (ST.) NO.5191 OF 2020
Sukhalal Shrimant Jadhav (Gosavi) .. Applicant
Vs.
The State of Maharashtra .. Respondent
...
Mr. Kuldeep S. Patil with Ms. Saili Dhuru for the Applicant.
Mr. R.M. Pethe, A.P.P. for the State.
...
CORAM : SMT. BHARATI DANGRE, J.
DATED : 9TH APRIL, 2021.
P.C:-
1. By the present Interim Application, the Applicant is
seeking suspension of sentence imposed on him on being
convicted by the Special Court (POCSO Act) under Section
376(2)(i) of the IPC and under Section 4 of the POCSO Act.
The Appeal filed by the Appellant is admitted on 27/11/2020.
Learned counsel for the Applicant also informs that a notice has
been issued for enhancement of sentence on the ground that on
conviction under Section 4 of the POCSO Act, the minimum
sentence is ten years and fine.
AJN
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2. With the assistance of the learned counsel for the Applicant
and learned A.P.P., I have perused the impugned judgment.
Learned counsel specifically argued that the Special Court has
proceeded on the basis that the girl was minor but the
prosecution has failed to bring on record any evidence to reflect
that the girl was minor. The prosecution witness No.5, the Dy.
Superintendent of Police, who has investigated the C.R.
registered with Tasgaon Police Station has referred to a bona
fide certificate of victim girl collected from the school reflecting
her age to be 13 years. In the examination in chief, the age of
the victim is stated to be between 13 and 16 years and as per her
statement, she is 14 years. Pertinent to note that none of the
documents are proved by PW-5 nor are they exhibited during the
course of evidence by any of the witness. On being enquired,
learned A.P.P. Pethe has invited my attention to the record, which
has been received by this court and particularly the bona fide
certificate received from Primary School in favour of the
Applicant, which reflects the date of birth of the Applicant as
15/10/2003. Further, another document on record which has not
been exhibited is a certificate issued by P.V.P.G.H. Hospital,
Sangli, which certifies that the victim girl was examined and her
radiological age is between 13 and 15 years. The document
though lie in the compilation of documents did not form part of
the trial court record and they have not been exhibited.
AJN
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3. Mr. Patil is justified in advancing his submission that the
prosecution has utterly failed to prove or to bring on record any
document to the effect that the girl was minor. His submission is
that the Special Court has simply flipped away by admitting the
girl to be a minor on the basis of her statement.
4. In any contingency, this aspect will have to be considered
at the final hearing of the Appeal. Learned counsel for the
Applicant states that the Applicant was on bail during the trial.
Since the Appeal is admitted and the question, which will arise
in the Appeal primarily would revolve around the issue as to
whether the girl was minor and the provisions of the POCSO Act
are attracted. In the light of the aforesaid, the Application
deserves to be granted. Thus, the Application is allowed.
5. The sentence awarded is suspended. The Applicant is
directed to be released on bail on the same terms and conditions
as he was, pending trial, with fresh bond and sureties.
SMT. BHARATI DANGRE, J.
AJN
