Avinash Appaso Mulik vs The State Of Maharashtra
2021 Latest Caselaw 10341 Bom

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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION


                                    INTERIM APPLICATION NO.714 OF 2021
                                                   IN
                                      CRIMINAL APPEAL NO.333 OF 2020


                        Avinash Appaso Mulik                        .. Applicant/ Appellant
                                 Versus
                        State of Maharashtra                        .. Respondent

                                                       ......
                        Mr.Satyavrat Joshi, Advocate for the Applicant/Appellant.
                        Mr.S.R. Agarkar, APP for the Respondent - State.
                                                      ......

                                                      CORAM : PRAKASH D. NAIK, J.

                                                      DATED : AUGUST 4, 2021.

                        P.C. :

                                     This is an application for suspension of sentence and

                        grant of bail during the pendency of criminal Appeal No.333 of

                        2020, preferred by the applicant challenging the judgment and

                        order dated 11th February, 2020, passed by Special Judge for

                        POCSO and Additional Sessions Judge, Islampur, under the

           Digitally
           signed by
                        Protection of Children from Sexual Ofences Act ("POCSO Act",
           RAJESHRI
RAJESHRI   PRAKASH
PRAKASH
AHER
           AHER
           Date:        for short) in Special Case No.16 of 2017.
           2021.08.04
           17:40:38
           +0530




                        2            The applicant is convicted for the ofence punishable
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under Section 376(2)(n) of IPC and Section 4 of POCSO Act. He

has been sentenced to sufer R/I for 10 years and to pay fne of

Rs.5000/- and in default to sufer further S/I for six months. The

complainant was served. She is not present. On the previous date

of hearing, learned APP tendered on record a statement of the

prosecutrix recorded on 23rd June, 2021, pursuant to the order of

this Court. The statement refected that she is not desirous of

appearing before the Court in the application fled by the

applicant seeking bail on account of fnancial dificulties and she

has also stated that the Court may proceed with the application in

her absence.



3           Learned counsel for the applicant submitted that the

applicant is in custody for a period of about 2 years 10 months

without remission. There is no evidence to connect the applicant

for the alleged ofence. The victim has not supported the

prosecution case. Trial Court has convicted the applicant on the

basis of DNA test report. However, there are discrepancies in

relation to the evidence of DNA of the victim. It is submitted that

the victim herself have stated that her blood sample was not

taken for DNA purpose. Learned counsel relied upon the cross-

examination of the medical oficer P.W.7, and, submitted that the
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said witness has admitted that if the blood is transfused to any

person, than it cannot be taken for six months for DNA report. He

relied upon the decision of this Court in the case of Nagesh

Made Vs. State of Maharashtra1.



4                 Learned APP submitted that there is vital evidence in

the form of DNA Report which supports the prosecution case. The

victim was minor. Trial Court has rightly convicted the applicant.



5                 The victim and her parents have turned hostile. Trial

Court has convicted the applicant only on the basis of DNA

Report. The defence has challenged the report contending that

there are discrepancies in the said evidence. It is true that the

discrepancies will have to be considered at the stage of fnal

hearing of the Appeal. However, considering the nature of

evidence and that the applicant is in custody for more than 2

years, sentence of imprisonment can be suspended.


                               :: O R D E R ::

(i) Interim Application No.714 of 2021 , is allowed;

         (ii)     The sentence of imprisonment of appellant


1     2019 All MR (Cri.)2224
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awarded vide judgment and order dated 11th

February, 2020 passed by the Special Judge for

POCSO and Additional Sessions Judge, Islampur,

is suspended during the pendency of Appeal,

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) Applicant is permitted to furnish provisional

cash bail in the sum of Rs.25,000/-, for a period

of 12 weeks, in lieu of surety;

(iv) Applicant shall attend the trial Court once in six

months;

(v) Applicant shall stay out of village Girjawade, till

further orders;

(v) Interim Application No.714 of 2021, stands

disposed of accordingly.

(PRAKASH D. NAIK, J.)