Bombay High Court
Mahadu Sayabu Deokar vs The State Of Maharashtra And Anr on 8 March, 2021
Bench: S. K. Shinde
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March 8, 2021.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1118 / 2020
IN
CRIMINAL APPEAL NO. 360 / 2020
Mahadu Sayabu Deokar .....Applicant
V/s.
State of Maharashtra ....Respondent
****
Mr. Atul R. Patil, advocate for the appellant.
Mr. R.M. Pethe, APP for State.
CORAM : SANDEEP K. SHINDE, J.
Monday, 8th March, 2021.
P.C. :
1. Heard learned Counsel for the Applicant and
learned APP for State.
2. Applicant-accused no.1 in Special Case No.5/2017 is
a convict of offences punishable under Sections 4 and 8 of the
Protection of Children from Sexual Offences Act, 2012
("POCSO Act" for short) and under Section 363 of the Indian
Penal Code. He has been sentenced to suffer rigorous
imprisonment for 10 years for an offence punishable under
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Section 4 of the POCSO Act vide judgment and order dated
16th December, 2019.
3. Pending Appeal, applicant is seeking suspension of
the impugned sentence.
4. Co-accused no.3-a convict under Sections 363 and
366A of the Indian Penal Code and under Sections 3 read with
Section 4 read with Section 17 read with Section 8 of the
POCSO Act, has been granted bail by this Court, pending his
Appeal No. 345/2020. The maximum sentence awarded to co-
accused was 7 years rigorous imprisonment.
5. This applicant has undergone sentence of four years
and 10 months, out of 10 years.
6. I have perused the evidence. At the material time,
the victim was 16 year old. Prosecution had examined
Headmaster of Zilla Parishad Primary School. He testified
that, as per the register, birth date of victim was 19 th June,
2001. The School Leaving Certificate is produced on record. It
shows, the victim had left the school in the Ist Standard. It
shows, she was admitted in the School in June, 2008. In cross-
examination, the Headmaster would admit that the victim was
admitted in the school on the information given by her parents.
It appears that, prosecution had made no efforts to place on
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record her birth certificate. The evidence of the Headmaster
does not show, any document as to on whose information,
victim's birthdate was recorded in the Register. It appears, this
aspect has been overlooked by the learned trial Court. Be that
as it may, the victim was examined at Primary Heath Center,
Vairag, Taluka-Barshi. While narrating the incident to the
Medical Officer, victim stated, she was sexually assaulted on 9 th
November, 2016 at 8:00 p.m. and number of assailants were
three in number. However, victim's maternal uncle had lodged
the complaint wherein the complainant narrated that the
victim was abducted at 8:00 p.m. on 9 th November, 2016 and
the applicant-accused no.1 committed sexual assault at
Sudarshan Dhaba while accused no.2 was guarding the
Dhabha. Therefore, the narration of the incident by the victim
to the Medical Officer and of complainant (victim's uncle) is
not consistent. This aspect has not been analysed by the
learned trial Court.
7. Be that as it may, the alleged spot of incident as
cited was a Sudarshan Dhabha. However, the prosecution has
not taken efforts to examine owner of the Dhabha to probablize
its case, that at the relevant time, Dhabha was not operational/
functional. Be that as it may, the report of the Chemical
Analyser also does not support the prosecution's case that the
victim was sexually assaulted by the accused no.1.
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8. In consideration of the evidence on record and
additionally that the applicant has undergone sentence of four
years and ten months, prima facie, I am of the view that there
are fair chances of appeal being finally allowed. As a result,
application is allowed and he is directed to be released on bail
on the following terms and conditions :
ORDER
(i) During the pendency of the present Appeal, the
substantive sentence imposed on the applicant is
suspended.
(ii) The applicant arrested in Crime No. 280/16
registered at Vairag Police Station, Taluka-Barshi shall
be released on bail on executing P.R. bond for the sum
of Rs.15,000/- (Rs. Fifteen Thousand only) with one or
two sureties in the like sum.
(iii) Before his actual release from jail, the applicant
shall deposit the entire fine amount imposed upon him
by the impugned judgment and Order in the Registry
of the trial Court.
(iv) After his release from jail and during the pendency
of the present Appeal, the applicant shall not enter the
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territorial jurisdiction of Barshi Taluka except, for
marking his presence as directed hereinbelow :
(v) After his release from Jail and during the
pendency of the present Appeal, the Applicant shall
attend Vairag Police Station, on every first Monday of
the month between 10.00 a.m. and 12.00 noon, initially
for a period of one year.
. After end of one year, the Applicant shall attend
Vairag Police Station, on every first Monday of the
every 3rd Month between 10.00 a.m. and 12.00 noon.
The Applicant thus, shall attend Vairag Police Station,
4 times in a year during the pendency of the present
Appeal.
(vi) If the Applicant commits two consecutive defaults
in complying with condition No.(v) above, in that
event, the prosecution will be at liberty to file an
Application for cancellation of bail.
(vii) Before his actual release from Jail, the Applicant
shall furnish all relevant documents of his prospective
residential address where he intends to reside, to Vairag
Police Station.
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(viii) Applicant shall not contact the prosecutrix and
her relatives.
(xi) The applicant shall not tamper with the evidence
or attempt to influence or contact the complainant,
witnesses or any person concerned with the case.
9. The application is accordingly allowed and disposed
off.
10. It is made clear that, observations made
hereinabove, shall be construed as expression of opinion for the
purpose of granting bail only and the same shall not, in any
way, influence the trial in other proceedings.
Digitally
signed by
Neeta Neeta S.
Sawant
S. Date:
Sawant 2021.03.09
14:06:14
(SANDEEP K. SHINDE, J.)
+0530
