Akil Gulab Maniyar vs The State Of Maharashtra And Anr
2021 Latest Caselaw 15095 Bom

                     Megha                             30_apeal_773_2021 wi_IA_2293_2021.doc

                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION

MEGHA
        Digitally
        signed by
        MEGHA S
                                     CRIMINAL APPEAL NO.773 OF 2021
                                                 WITH
        PARAB
S       Date:
PARAB   2021.10.22
        14:04:58


                                  INTERIM APPLICATION NO.2293 OF 2021
        +0530




                                                  IN
                                     CRIMINAL APPEAL NO.773 OF 2021
                     Akil Gulab Maniyar                 ...Applicant/Appellant
                                   Versus
                     The State of Maharashtra & Anr.               ...Respondents
                                                       ....
                     Mr. Swapnil Walve for the Applicant.
                     Mr. S.V. Gavand, APP for Respondent No.1-State.
                     Ms Savita Yadav for Respondent No.2 (appointed Advocate)


                                                 CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 20th OCTOBER, 2021.

P.C.:-

CRIMINAL APPEAL NO.773 OF 2021:-

Date of todays hearing is duly intimated to the Respondent

No.2. She has requested for advocate from legal aid panel. Ms Savita

Yadav, learned counsel on legal aid panel, is appointed to represent

Respondent No.2 in the appeal as well as in the application.

2. Heard. Admit. Mr. S.V. Gavand, learned APP waives service

on behalf of Respondent No.1 and Ms Savita Yadav, learned counsel

waives service on behalf of Respondent No.2. Call for the record and

proceedings. Paper book to be fled within a period of six months.

Megha 30_apeal_773_2021 wi_IA_2293_2021.doc

INTERIM APPLICATION NO.2293 OF 2021:-

3. This is an application fled under Section 389 of the Code of

Criminal Procedure, 1973 for suspension of sentence imposed vide

judgment dated 05/08/2021 passed by learned Additional Sessions

Judge and Special Judge in Sessions Case (POCSO) No.418 of 2018 and

for enlargement of the Applicant on bail.

4. By the impugned judgment, the learned Judge held the

Applicant guilty of ofences punishable under Section 377 and 506 part-

I of the IPC and Section 3 r/w section 4 and Section 5 r/w section 6 of

the Protection of Children from Sexual Ofences Act, 2012 (POCSO) and

sentenced to sufer rigorous imprisonment for 10 years with fne of

Rs.5,000/- i/d to undergo simple imprisonment for a term of three

months.

5. Heard learned counsel for the Applicant, learned APP for the

Respondent No.1-State and learned counsel for Respondent No.2.

Perused the records and considered the submissions advanced by the

learned counsel for the respective parties.

6. Charge against the Applicant was that he had committed

penetrative sexual assault against a child, who was 8 years of age and a

child within the meaning of Section 2(d) of POCSO. The evidence of the

Megha 30_apeal_773_2021 wi_IA_2293_2021.doc

victim prima facie reveals that on 06/10/2018 at about 7.00 p.m. while

he was riding his bicycle, the Applicant took him to the terrace under

the pretext of teaching him to play a game. He has deposed that after

taking him to the terrace, the Applicant removed pant of the victim and

took his penis in his mouth. He has stated that thereafter the Applicant

also touched his penis to the anus of the victim. The victim has stated

that the Applicant had threatened him not to disclose the incident to

any one.

7. The victim has stated that he had disclosed the incident to

his mother. The evidence of PW2-mother of the victim also prima facie

indicates that the victim had told her that the Applicant had taken him

to the terrace and had committed penetrative sexual assault.

8. The evidence on record prima facie indicates that the

Applicant had committed penetrative sexual assault within the meaning

of section 3(a) and (b) of POCSO, on the victim who was below 12 years

of age. Considering the nature of the ofence and the evidence in

support thereof as well as the societal interest, in my considered view

this is not a ft case to suspend the sentence and to enlarge the

Applicant on bail. Hence, the application is dismissed.

(SMT. ANUJA PRABHUDESSAI, J.)