Shanakar @ Bandya Sudam Waghmare vs The State Of Maharashtra And Anr
2021 Latest Caselaw 16274 Bom

Citation : 2021 Latest Caselaw 16274 Bom
Judgement Date : 24 November, 2021

Bombay High Court

Shanakar @ Bandya Sudam Waghmare vs The State Of Maharashtra And Anr on 24 November, 2021

Bench: Anuja Prabhudessai

                     Megha                               12_IA_1342_2021 in apeal_420_2021.doc

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION

MEGHA
        Digitally
        signed by
        MEGHA S
        PARAB
                                   INTERIM APPLICATION NO.1342 OF 2021
                                                   IN
S       Date:
PARAB   2021.11.26
        11:53:59
        +0530


                                     CRIMINAL APPEAL NO.420 OF 2021
                                                  WITH
                                     CRIMINAL APPEAL NO.420 OF 2021

                     Shankar @ Bandya Sudam
                     Waghmare                                           ...Applicant
                                   Versus
                     The State of Maharashtra and Anr.               ...Respondents
                                                          ....
                     Mr. Vishal G. Salvi for the Applicant.
                     Mr. P.H. Gaikwad, APP for Respondent-State.
                     Mrs. Megha Bajoria for Respondent No.2.


                                                    CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 24th NOVEMBER, 2021.

P.C.:-

This is an application under Section 389 of the Code of

Criminal Procedure, 1973 for suspension of substantive sentence

imposed by judgment dated 16/03/2020 passed by learned Judge,

Special Court, Mangaon, District-Raigad in Special POCSO Case No.11 of

2018 and to enlarge the Applicant on bail. By the impugned judgment,

the learned Judge has held the Applicant guilty of ofence punishable

under Section 4 of the Protection of Children from Sexual Ofences Act,

2012 (POCSO Act) and sentenced him to undergo rigorous

imprisonment for a period of 7 years with fne of Rs.25,000/- i/d to

Megha 12_IA_1342_2021 in apeal_420_2021.doc

undergo further simple imprisonment for the period of six months.

2. Heard Mr. Vishal Salvi, learned counsel for the Applicant, Mr.

P.H. Gaikwad, learned APP for Respondent No.1-State and Mrs. Megha

Bajoria, learned counsel for Respondent No.2. I have perused the

records and considered the submissions advanced by learned counsel

for the respective parties.

3. It was alleged that the Applicant had subjected the victim

girl of 16 years to penetrative sexual assault. Upon considering the

evidence on record, the learned Judge has held the Appellant guilty

and has sentenced him to undergo imprisonment for a period of 7

years.

4. In Kiran Kumar vs. State of M.P. (2001) 9 SCC 211 the

Appellant was convicted for ofence under Section 460, 376, 325 and

506 of the IPC and maximum sentence imposed on him was

imprisonment for a period of 7 years. His application for suspension of

sentence was rejected by the High Court. While setting aside the said

order, the Apex Court referred to the decision in Bhagwan Rama

Shinde Gosai vs. State of Gujrat (1999) 4 SCC 421 and held that when

the person is convicted and sentenced to a short term imprisonment,

Megha 12_IA_1342_2021 in apeal_420_2021.doc

the normal rule is that when the appeal is pending the sentence should

be suspended and rejection is only by way of exception. It is further

observed that if the short term is alleged to run out during the

pendency of appeal, the appeal itself will become for all practicable

purposes infructuous.

5. The appeal is admitted and considering the large pendency

of the cases, the appeal is not likely to come up for hearing in the

immediate future. It is also stated that the Appellant was on bail during

the pendency of trial and has not misused the liberty. In view of the

said judgment and considering the fact that the Applicant has been

sentenced imprisonment for 7 years this is a ft case for suspension of

sentence imposed on the Applicant pending disposal of the appeal on

merits. Hence, the application is allowed on the following terms and

conditions:-

(i) Substantive sentence imposed against the Applicant vide

judgment dated 16/03/2020 in Special POCSO Case

No.11 of 2018 is suspended pending disposal of the

appeal;