Bombay High Court
Nikhil Ashok Bhole vs The State Of Maharashtra on 12 October, 2021
Bench: Anuja Prabhudessai
P.H. Jayani 14 APEAL832.2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 832 OF 2021
WITH
INTERIM APPLICATION NO. 2426 OF 2021
WITH
INTERIM APPLICATION NO. 2424 OF 2021
IN
CRIMINAL APPEAL NO. 832 OF 2021
Nikhil Ashok Bhole .... Appellant
v/s.
The State of Maharashtra .... Respondent
Mr. D.H. Kumthekar for the Appellant/Applicant.
Mr. P.H. Gaikwad, APP for the State.
Mr. Liman, PSI, Chembur Police Station, present.
CORAM: SMT. ANUJA PRABHUDESSAI, J.
DATED : 12th OCTOBER, 2021.
P. C. :-
ORDER IN CRIMINAL APPEAL NO. 832 OF 2021 :-
. Heard. Admit. Call for the record and proceedings. Learned
APP waives service on behalf of the Respondent - State. Paper book to
be filed within a period of six months.
ORDER IN INTERIM APPLICATION NOS. 2424/2021 & 2426/2021 :-
2. These are the Applications under Section 389 of Cr.P.C. for
P.H. Jayani 14 APEAL832.2021.doc
suspension of substantive sentence imposed by judgment dated
20/08/2021 in Special Judge under P.O.C.S.O. Act, Mumbai in Special
Case No.248/2017 and to release the Applicant on bail.
3. By the impugned judgment, the Applicant has been held guilty of
offences punishable under section 5(k) punishable under Section 6 of
Protection of Children from Sexual Offences (POCSO) Act, 2012 and
has been sentenced to undergo rigorous imprisonment for ten years
with fine of Rs.5,000/- in default to undergo simple imprisonment for
three months. No separate sentence has been imposed under Section
377 of the Indian Penal code in view of the sentence imposed under
Section 6 of POCSO Act.
4. Heard Mr. D.H. Kumthekar, learned counsel for the Appellant and
Mr. P.H. Gaikwad, learned APP for the State. I have perused the records
and considered the submissions advanced by the learned counsels for
the respective parties.
5. The Applicant was prosecuted for offences under Section 377 and
506 of the Indian Penal Code and Section 4 and 8 of POCSO Act, 2012.
The crime against the Applicant was registered pursuant to the first
P.H. Jayani 14 APEAL832.2021.doc
information report lodged by the father of the victim, a child within the
meaning of section 2(d) of the POCSO Act and who was intellectually
disabled. The first informant had alleged that in August, 2016, the
victim had not returned home and when he inquired with him as to
why he was late, he had told that the Applicant herein had taken him
to one toilet situated in front of Axis Bank, Siddharth Colony, Chembur
and had subjected him to carnal intercourse. It was also alleged that
the Applicant had threatened the victim not to disclose the incident to
anyone. The victim subsequently complained of pain in anus and the
first informant took him to the hospital. The Doctors informed the
complainant that the cause of pain is due to unnatural sex. The
complainant thereafter lodged the first information report against the
Applicant.
6. The evidence of the victim prima facie reveals that the Applicant
had subjected him to carnal intercourse. The evidence of PW2 - Dr.
Gajanan Govindrao Kondawar also prima facie reveals that there was
evidence of "recent full act of unnatural sexual intercourse with
dilatation of the anus because of introduction of a full sized erect adult
penis". The medical evidence prima facie supports the case of the
prosecution. The offence is of serious and heinous nature. Considering
P.H. Jayani 14 APEAL832.2021.doc
the gravity of the offence, the evidence in support thereof, and also
keeping in mind the societal interest, this is not a fit case for
suspension of sentence and/or to release the Applicant on bail. Hence,
the Interim Applications are dismissed.
PREETI
H JAYANI (SMT. ANUJA PRABHUDESSAI, J.)
Digitally signed by
PREETI H JAYANI
Date: 2021.10.14
16:49:15 +0530
