Bombay High Court
Ashokkukmar S/O Dnyaniram ... vs State Ofmah. Thr. Pso Ps Jaripatka ... on 3 December, 2021
Bench: V. G. Joshi
13.appa.643.21 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Application [APPA] No.647 of 2021
in
Criminal Appeal No.477 of 2021
Ashokkumar s/o Dnyaniram Thakare
vs.
The State of Maharashtra, through P.S.O. Jaripatka, Nagpur
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri R.M. Daga, Advocate for the Applicant/Appellant.
Shri A.R. Chutke, A.P.P. for the Non-Applicant/Respondent.
CORAM : VINAY JOSHI, J.
DATE : 3rd DECEMBER, 2021.
Heard.
02] This is an application seeking suspension of execution
of substantive sentence passed in Special POCSO Case
No.93/2017 by the Additional Sessions Judge, Nagpur. The trial
Court held the applicant-accused guilty for the offence punishable
under Sections 376(2)(i)(j) and 506 (Part-II) of the Indian penal
Code. The trial Court has imposed sentence to undergo rigorous
imprisonment for ten years for the offence punishable under
Sections 376(2)(i)(j) and to undergo rigorous imprisonment for
one year for the offence punishable under Section 506 (Part-II) of
the Indian penal Code. Besides that, total fine of Rs.11,000/- has
been imposed. Both sentences are directed to run concurrently.
03] The applicant has claimed suspension of execution of
sentence in terms of Section 389(1) of the Code of Criminal
Procedure, mainly on two counts. Firstly, on merits by
contending that the impugned judgment is not sustainable in the
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eyes of law since the evidence adduced in trial is not sufficient to
establish a guilt with a standard set out under the criminal law.
Secondly, it is contended that the applicant has already
undergone almost half of the term of sentence and as there is no
likelihood of appeal coming for hearing in near future, he is
entitled for suspension.
04] The State resisted this application by making
submissions. It is argued that the offence is against woman
having serious impact on the society. The evidence of victim is
firm and consistent. Moreover, the victim's age is not specifically
denied and, therefore, the impugned judgment is based on sound
reasoning, which call no interference in appeal.
05] With the assistance of both sides, I have gone through
the impugned judgment and the evidence recorded in trial. As
per the prosecution case, the victim-girl was 15 years of age.
While disputing the age, learned Counsel Shri Daga submitted
that the trial Court has not relied on the documentary evidence
on the point of age, which was pressed by the prosecution in trial.
He would submit that the trial Court erred in relying oral
testimony regarding date of birth. In this regard, he pointed out
that the victim has not stated her date of birth in F.I.R., nor in
statement recorded in terms of Section 164 of the Code.
Therefore, prima facie it appears that the point of age of victim is
arguable, which has direct impact on the result of trial.
06] Moreover, he took me through the story stated by the
informant about forcible sexual intercourse in toilet and
submitted that the same is improbable. Certain inconsistencies
from the evidence are pointed out. Besides that, my attention is
invited that though the incident occurred on 08/02/2017,
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however, despite victim following her ordinary pursue, the F.I.R.
was lodged after four days. In other words, he says that the
possibility of emerging concocted story cannot be ruled out.
Moreover, I have been taken through the medical evidence, which
says that there were no external injuries on the genitals of the
victim. Likewise, Medical Officer admitted that though hymen
was found to be torn, the tears were very old. Having regard to
tender age of the victim, medical evidence assumes significance,
which is a matter of consideration.
07] It takes me to give regard to another submission
which is about the applicant's pre-trial detention. It is submitted
that the trial Court has imposed maximum sentence of
undergoing rigorous imprisonment for ten years. The applicant
was arrested on 14/02/2017 and till date i.e. for the period of
four years and 10 days, he is in jail. Thus, it is the submission
that the applicant has already undergone almost half of the
period of sentence and thus as he served substantial period of
sentence coupled with the fact that the appeal will take
considerable time for hearing, he is entitled for suspension.
08] To support the said contention, the applicant has
placed reliance on the decision of the Supreme Court in the case
of Kamal vs. State of Haryana - (2004) 13 SCC 526. Likewise, he
drew my attention to the decisions of this Court in the cases of
Sanjay Dattaram Gawde & Anr. vs. State of Maharashtra - 2007
ALL MR (Cri) 669 and Garvar Ayub Habid Khan vs. State of
Maharashtra - 2007 ALL MR (Cri) 656, wherein considering the
period, which was already undergone, the Courts have exercised
its discretion in suspending sentence. Particularly, in above
referred case of Kamal, the then accused was sentenced to
undergo rigorous imprisonment for seven years for the offence
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punishable under Section 304-B of the Indian Penal Code. The
accused had already served imprisonment for about two years
and considering said fact, the Supreme Court was pleased to
suspend the sentence on said ground.
09] Besides the period of sentence, which the applicant
has already served, the aforesaid factors regarding the merits of
case make out that the applicant has arguable point on merits.
Apparently, if the applicant/appellant succeeds in the appeal,
then irreversible position about his detention would occur. The
trial will take considerable time for disposal.
10] On a query made to learned Counsel Shri Daga for the
applicant that whether the fine amount is deposited, he expressed
that he is not sure. Having regard to all these factors, the
applicant has made out a case for grant of suspension. In view of
that, the execution of substantive sentence passed in Special
POCSO Case No.93/2017 by the Additional Sessions Judge,
Nagpur is hereby suspended till final disposal of the appeal. In
the meantime, the applicant-Ashokkumar Dnyaniram Thakare
shall be released on bail on his furnishing P.R. Bond in the sum of
Rs.25,000/- with surety of the like amount. Deposit of fine
amount would be pre-condition for release. The trial Court shall
ensure deposit of fine before issuing release order.
11] The application stands allowed and disposed of
accordingly.
JUDGE
*sandesh
Signed by:SANDESH DAULATRAO
WAGHMARE
Private Secretary to the Hon'ble Judge
Signing Date:04.12.2021 18:45
