Amir Ismail Khan vs The State Of Maharashtra And Anr
2021 Latest Caselaw 10209 Bom

                                                                          27-IA-1460-2020-IN-APEAL-492-2020.doc




                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CRIMINAL APPELLATE JURISDICTION

                                          INTERIM APPLICATION NO. 1460 OF 2020
                                                           IN
                                             CRIMINAL APPEAL NO.492 OF 2020

                              Amir Ismail Khan                                      ... Applicant/
                                                                                      Appellant
                                    Versus

                              The State of Maharashtra & Anr.                       ... Respondents

                                                              .....
                              Mr. Zahid A. Qureshi, Advocate for the Applicant/Appellant.
                              Mr. S. R. Agarkar, APP for the Respondent No.1 - State.
                              Mr. Surel S. Shah, Advocate for Respondent No.2 - Complainant.
                                                                .....

                                                      CORAM           :    PRAKASH D. NAIK, J.
                                                      DATE            :    3rd AUGUST, 2021.

                              PER COURT:

                              1.          This is an application for suspension of sentence and

                              grant of bail, pending the appeal preferred by the applicant

                              challenging the judgment and order dated 23 rd October, 2020

                              passed by Sessions Judge, Pune.


                              2.          The applicant is convicted for the offence punishable

                              under Section 376(2)(i) of Indian Penal Code (for short "IPC") and

                              Sections 3 & 4 of Protection of Children from Sexual Offences Act,
           Digitally signed
           by SAJAKALI        2012 (for short 'POCSO Act'). He sentenced to suffer 10 years
SAJAKALI   LIYAKAT
           JAMADAR
LIYAKAT    Date:
JAMADAR    2021.08.04
           14:47:11
           +0530
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rigorous imprisonment.


3.           Learned counsel for the applicant submitted that

during the pendency of trial applicant/appellant was on bail and he

has not misused the facility of bail. The applicant has good case on

merits. The applicant is young boy aged about 19 years. The victim

was aged around 16 years. The love letters written by victim to the

applicant were adduced in evidence. It is submitted that the

defence had also seriously doubted the allegations of sexual

assault. Learned counsel for the applicant pointed out the evidence

of PW-5 Dr. Arun Ambadkar, wherein it was stated that these kind

of injuries are possible due to insertion of any other foreign object

other than male part and in this case it may be possible that said

injuries are caused by insertion of foreign object. The prosecution

had suppressed that victim and accused were in love relationship.

The accused was acquitted for offence under Section 363 of IPC.

The evidence suffers from omission and contradiction.


4.           Learned APP submitted that there is no reason to

doubt the case of the complainant. The victim was minor. She was

sexually assaulted. It was not the case of sexual relationship.


5.           Learned counsel for the victim/complainant reiterated

the submissions advanced by learned APP. It is submitted that the

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victim was minor girl. She was less than 16 years of age. It is not

the case of consensual sexual relationship. The evidence of

witnesses is required to be appreciated at final hearing of appeal.

At the most hearing of appeal be expedited.


6.           The applicant is aged about 19 years. During the

pendency of trial, he was granted bail vide order dated 16 th April,

2016 passed by learned Additional Sessions Judge, Pune. The

defence has brought on record, the letters exchanged between the

parties which indicate the nature of relationship between the victim

and the applicant. In the cross examination, the victim has stated

that prior to the incident there was friendship between victim and

accused. There was love affair. I have perused evidence of

witnesses including medical officer. Considering the factual aspects

and the evidence adduced before the trial Court, and also

considering the fact that the applicant/appellant was on bail during

the trial, case for suspension of sentence is made out.


7.           Hence, I pass the following order:


                               ORDER

(i) Interim Application No. 1460 of 2020 is allowed;

(ii) During pendency of Criminal Appeal No. 492 of 2020, Sentence of imprisonment awarded by learned Additional

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Sessions Judge, Pune, vide Judgment and order dated 23rd October, 2020 passed in Special Sessions Case No.359 of 2015 is suspended and the applicant is directed to be released on bail on executing P.R. Bond in the sum of Rs.25,000/- with one or more sureties in the like amount;

(iii) Interim Application stands disposed of accordingly.

                                             (PRAKASH D. NAIK, J.)




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