Mr. Shafi Ahmed Shaikh vs The State Of Maharashtra And Anr
2021 Latest Caselaw 9126 Bom

P.H. Jayani                                          18 IA773.2021.doc



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                 INTERIM APPLICATION NO. 773 OF 2021
                                 IN
                   CRIMINAL APPEAL NO. 196 OF 2021

Shafi Ahmed Shaikh                               .... Applicant
           v/s.
The State of Maharashtra and anr.                .... Respondents

Mr. B.B. Tiwari i/b. Mr. N.N. Kazi for the Applicant.
Mr. S.V. Gavand, APP for the State.
Ms. Trupti M. Khamkar for Respondent No.2.

                         CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED : 13th JULY, 2021.

P. C. :-

. This is an Application under Section 389 of the Code of Cr.P.C. for

suspension of substantive sentence imposed by judgment dated

19/01/2021 passed by learned Special Judge (POCSO Act) &

Additional Sessions Judge, Thane in Special Case No.162/2014.

2. The Applicant herein was tried for offenses punishable under

Sections 376(2) (f) and (n), 323 and 506 of the Indian Penal Code and

Section 6 r/w. Section 5(l) and (n) of the Protection of Children from

Sexual Offences (POCSO) Act, 2012.

P.H. Jayani 18 IA773.2021.doc

3. The charge against the Applicant is that he had committed rape

and penetrative sexual assault on his niece who was below 18 years of

age. The Applicant was also charged for causing hurt and criminally

intimidating the victim. Upon considering the evidence on record, the

learned Judge has held the Applicant guilty of the said offenses and

sentenced him to undergo rigorous imprisonment for ten years and a

fine of Rs.10,000/- in default to undergo rigorous imprisonment for six

months in respect of the offenses under Sections 376(2) (f) and (n) of

the Indian Penal Code and Sections 6 r/w. Section 5(l) and (n) of the

POCSO Act, 2012. The Applicant is also sentenced to undergo

imprisonment for one year and pay fine of Rs.1,000/- in respect of

offenses under Sections 323 and 506 of the Indian Penal Code. All the

sentences are ordered to run concurrently. Being aggrieved by the said

sentence, the Applicant has preferred this Appeal and during the

pendency of the said Appeal, he has prayed for suspension of the

sentence.

4. Heard Mr. B.B. Tiwari, learned counsel for the Applicant, Mr. S.V.

Gavand, learned APP for the State and Ms. Trupti Khamkar, learned

counsel for Respondent No.2. I have perused the records and

considered the submissions advanced by the learned counsels for the

P.H. Jayani 18 IA773.2021.doc

respective parties.

5. The Applicant is the paternal uncle of the victim who was

apparently below the age of 18 years as on the date of the alleged

incident. The victim claims that since the month of April, 2014, the

Applicant took her to different hotels and sexually abused her. It is the

case of the Applicant that he has been falsely implicated because of the

property dispute between him and his brother i.e., the father of the

victim. The victim was cross-examined on this aspect. She claims that

she was not aware whether her father had filed a suit against the

Applicant in respect of a flat. Learned counsel for the Applicant has

brought to my notice the Application dated 02/11/2018 filed by the

victim before the Trial Court wherein she has categorically stated that

the Applicant has not handed over the agreement in respect of a flat

which is in the name of her father. She has also made reference to the

civil litigation pending between her father and his brother. This fact

clearly indicates that there is civil dispute between the Applicant and

the father of the victim and that the victim was well aware of the same.

Under the circumstances, prima facie, it is difficult to believe that the

Applicant would seek permission of the parents of the victim to take

her and her brothers to Matheran and that her parents would willingly

P.H. Jayani 18 IA773.2021.doc

agree to send her to Matheran along with the Applicant.

6. The prosecution has allegedly seized registers of the concerned

hotels. The victim has not made any reference to these hotels.

Furthermore, there is no prima facie material to indicate that there is

entry in the name of the Applicant and the victim in any of the

registers. The Applicant was on bail during trail and he did not misuse

the liberty granted to him. Appeal has been admitted and considering

that final disposal of the Appeal is likely to take time, in my considered

view, this is a fit case for suspension of sentence pending hearing the

Appeal.

7. Hence, the Interim Application is allowed on following terms and

conditions :-

(a) The Applicant is ordered to be released on bail on furnishing bail

bonds of Rs.25,000/- (Rupees Twenty Five Thousand) with one or two

sureties in the like amount to the satisfaction of the Trial Court ;

(b) The applicant shall report to the Trial Court, once in six months

on the day/date specified by the Trial Court, till the Appeal is finally

disposed of ;

                       P.H. Jayani                                          18 IA773.2021.doc

                      (c)     The Applicant shall keep the Trial Court informed of his current

address and mobile contact numbers and/or change of residence or

mobile details, if any, from time to time ;

(d) The applicant shall not interfere with the victim and other

witnesses in any manner and shall not tamper with the evidence.

(e) If there are two consecutive defaults in appearing before the Trial

Court, the learned Judge shall make a report to the High Court and the

prosecution would be at liberty to file an application seeking

cancellation of bail.

8. The Interim Application stands disposed of in above terms.

PREETI
H JAYANI                                                (SMT. ANUJA PRABHUDESSAI, J.)
Digitally signed by
PREETI H JAYANI
Date: 2021.07.14
10:48:40 +0530