Sagar Dilip Bhoye vs The State Of Maharashtra And Anr
2021 Latest Caselaw 16183 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                  INTERIM APPLICATION NO. 2362 OF 2021
                                   IN
                         APPEAL NO. 806 OF 2021


      Sagar Dilip Bhoye                            ..Applicant

                 v/s.

      The State of Maharashtra & Anr.              ..Respondent/s

Mr. Nitin Sejpal a/w. Pooja Sejpal for the Applicant. Mr. P.H.Gaikwad, APP for the Respondent-State. Ms. Priyanka Chavan, Advocate appointed for the Respondent No.2

CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED : 23rd NOVEMBER, 2021.

P.C.

1. By this application, the applicant herein has sought

suspension of sentence imposed vide judgment dated 01.07.2021

in Special Case (POCSO) No.385 of 2019. By the impugned

judgment, the learned Special Judge (POCSO) has held the

Applicant guilty of offence under Section 376(2) of IPC and

Section 3 r/w. Section 4 of the Prevention of Children from Sexual

Offence Act, 2012. He has been sentenced to undergo rigorous

imprisonment for a period of 10 years with fine of Rs.5000/- in

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default to undergo simple imprisonment for 3 months.

2. Heard Shri Sejpal, learned Counsel for the Applicant, Shri

Gaikwad, learned APP for the State and Ms. Chavan, learned

Counsel for the Respondent No.2. I have perused the record and

considered the submissions advanced by the learned Counsels for

the respective parties.

3. The case of the prosecution in brief is that on 3.10.2017, the

Applicant herein had kidnapped the victim who was below 18

years of age, and subjected her to penetrative sexual assault, The

evidence of the victim indicates that the Applicant was known to

her. That on 3.10.2017, she had accompanied him to his house. It

is her contention that the Applicant had sexual relationship with

her under the promise of marriage. Though she claims that the

Applicant had sexual intercourse with her against her will and

consent, her evidence indicates that even after the incident she

had stayed in the house of the Applicant. She had not informed

her parents about the incident. Prima facie the relationship

appears to be consensual and hence the moot question is whether

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the victim was below 18 years of age. In this regard PW1 has

deposed that her birth date is 15.05.2001, which fact was not

stated in her statement under Section 161 Cr.P.C. that her date of

birth was 15.05.2001. She has admitted in her cross examination

that on the date of the deposition, which was recorded on

21.1.2001, she was 23 years of age. This admission prima facie

indicates that she was born sometime in the year 1988 and

falsifies her contention that she was born on 15.05.2001.

4. It is also to be noted that PW2, mother of the victim has

stated that at the time of the incident her daughter was 15 years of

age. She has not given the date of birth. In her cross examination

she has admitted that the police told her that the crime could be

registered against the Applicant only if the victim was below 18

years of age and hence she had stated that the victim was about 17

years of age.

5. PW3 Manik Kendra, the teacher in Zilla Parishad School has

produced an extract of register wherein the date of birth of victim

is shown as 24.09.2003. She has also produced an affidavit at

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Exhibit 36, a perusal of which indicates that the mother of the

victim had undertaken to submit the birth certificate of the victim

within a period of one month. The evidence on record thus prima

facie indicates that the date of birth in the school register was

recorded on the basis of the information given by the mother of

the victim who has stated before the Court that she does not know

the exact date of birth of the victim. Hence, prima facie, there is

discrepancy in the age as mentioned by the victim, her mother as

well as the age recorded in the school records.

6. The relationship appears to be consensual and the evidence

on record does not prima facie indicate that the prosecutrix was

below 18 years of age and hence a child within the meaning of

Section 2(d) of the POCSO Act.

7. Furthermore, it is stated that the Applicant was on bail

during pendency of trial and he has not misused his liberty. Under

the circumstances, in my considered view, this is a fit case of

suspending the substantive sentence pending hearing of appeal.

Hence the application is allowed on the following terms and

conditions:-,

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i) Substantive sentence imposed against the Applicant by

judgment dated 01.07.2021 in Special Case (POCSO) No.385 of

2019 is suspended pending hearing of the appeal;

ii) The Applicant is ordered to be released on bail on furnishing

P.R. Bond in the sum of Rs.20,000/- (Rupees Twenty Thousand

Only) with one or two sureties in the like amount, to the

satisfaction of the Trial Court;

Iii) The applicant shall report to the Trial Court once in two

months on the day/ date specified by the Trial Court, till the

Appeal is finally disposed on;

(iv) 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.

v) 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 application

seeking cancellation of bail.

. Application is accordingly disposed of. Digitally signed by PRASANNA P PRASANNA P SALGAONKAR SALGAONKAR Date:

2021.11.25 15:20:51 +0530 (ANUJA PRABHUDESSAI, J.)

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