Bombay High Court
Ab Nasir @ Sagar Abdul Rashid vs The State Of Maharashtra, Thr. ... on 2 December, 2021
Bench: V. G. Joshi
1 29appa584.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 584/2021 IN
CRIMINAL APPEAL NO. 419/2021
(Ab Nasir @ Sagar Abdul Rashid Vs. State of Maharashtra)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri M. N. Ali, Advocate for applicant.
Shri S. D. Sirpurkar, APP for non-applicant/State.
CORAM : VINAY JOSHI, J.
DATED : 02.12.2021.
Heard
2. This is an application seeking suspension of
execution of sentence passed in Spl. (POCSO) Case No.
158/2018 by the learned Sessions Judge, Amravati,
whereby the applicant/appellant was convicted for offence
punishable under Sections 363, 366, 376(2)(n) of the
Indian Penal Code and Section 4 of the Protection of
Children from Sexual Offences Act, 2012 (POCSO). The
Trial Court has imposed maximum sentence to suffer
rigorous imprisonment for 10 years along with fine of Rs.
3,000/- with default clause. Though different term of
imprisonment is awarded, under each count, all sentences
were directed to run concurrently.
3. The State resisted this application by filing reply-
affidavit. It is contended that the offence is of serious
nature. The Trial Court has appropriately appreciated
evidence which is based on record.
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4. With the assistant of both sides, I have gone
through the impugned judgment and the evidence
recorded by the Trial Court. Though five accused were
tried, however the Trial Court acquitted the rest and
convicted the applicant (accused No.1) for aforesaid
offence. Particularly, I have gone through the evidence of
victim aged 17 years. Since the victim has not supported
the prosecution case, learned APP by taking permission of
the Court, put her question in the nature of cross-
examination which is generally called as a 'hostile'. The
entire evidence of victim shows that she gave inconsistent
answers to both sides. Somewhere, she says that one
Sagar subjected her sexual assault whilst sometime, she
denied. The applicant has pointed from her evidence that
the victim stated that so-called Sagar's full name is Sagar
Wankhede. The applicant name is Ab. Nasir @ Sagar
Abdul Rashid. The evidence of victim specifically states
that so-called accused Sagar is not present before the
Court. Therefore, the question of identity of rapist
prominently emerges.
5. Perusal of impugned judgment indicates that
most of the conclusions are drawn on the basis that there
was no such specific cross-examination by accused. D.N.A.
report does not relate to existing applicant. Having regard
to these facts, certainly, the applicant has made out
arguable case of merits.
6. During trial, the applicant was on bail. The
appeal will take considerable time for its disposal. If the
applicant succeeds in appeal then irreversible position may
occur about his pre-trial detention. Considering the nature
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of evidence of victim and Medical Officer, I deem it
appropriate to suspend the execution of sentence. In view
of that following order:-
(I) The criminal application stands allowed and
disposed of.
(II) The execution of substantive sentence passed in
Spl. (POCSO) Case No. 158/2018 by the learned
Sessions Judge, Amravati, vide order dated
24.08.2021 stands suspended till final disposal of
appeal.
(III) In the meantime, the applicant - Ab Nasir @
Sagar Abdul Rashi be released on bail on his
furnishing P. R. bond of Rs. 25,000/- with one
surety in the like amount.
JUDGE
Gohane
