Bombay High Court
Deepak Gendalal Gupta vs State Of Mah. Thr. Pso Ps Rajapeth ... on 25 October, 2021
Bench: V. G. Joshi
Order 2510appa556.21
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APPA] NO. 556/2021
IN CRIMINAL APPEAL NO. 402/2021.
Deepak Gendalal Gupta (in Jail)
-Versus-
State of Maharashtra and another.
Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
Shri M.N. Ali, Advocate for the Applicant.
Shri S.D. Sirpurkar, A.P.P. for the Non-applicant.
CORAM : VINAY JOSHI, J.
DATE : OCTOBER 25, 2021
Heard.
2. This is an application seeking suspension
of execution of sentence imposed by the Additional
Sessions Judge, Amravati in Special POCSO Case
No.279/2010 on 02.09.2021. The learned Trial
Court held the applicant/appellant guilty for the
offence punishable under Sections 377, 506 of the
Indian Penal Code and Section 3[a] read with
Section 4 of the Protection of Children from Sexual
Offences Act (POCSO). The trial Court has imposed
maximum sentence to undergo rigorous
imprisonment for 12 years for the offence punishable
under Section 4 of the POCSO Act, along with total
Order 2510appa556.21
fine of Rs.35,000.
3. While seeking suspension, the learned
Counsel for the applicant would submit that during
the pendency of the trial, the applicant was on bail
and he has deposited entire fine amount on
15.09.2021. Photocopy of the receipt is tendered for
perusal. Learned Counsel for the applicant took me
through the impugned judgment and copies of
evidence recorded during the trial.
4. It was the prosecution case that on
10.04.2016, around 11.30 p.m. the accused, who is
friend of the employer of the victim boy aged 17
years, took him to his residence and sexually
assaulted him. The trial Court by placing reliance on
the evidence of the victim boy, recorded a finding of
guilt. Record indicates that during trial the
prosecution though examined 10 witnesses, however,
evidence of P.W.1 victim appears to be vital one.
Admittedly the incident took place on 10.04.2016,
whilst the report is lodged on 15.04.2016 i.e. after 5
days. It is brought to my notice that from
10.04.2016, the victim boy has attended his
employers office regularly and also came in contact
with his friends. It is emphasized that the victim was
Order 2510appa556.21
not under fear or pressure since he was following his
daily routine, hence, the alleged report creates
reasonable doubt. Moreover, it is submitted that
there was a theft of cash amount in the office of the
victims employer, of which allegation was against the
victim boy. It is submitted that, since the accused is
friend of victims employer and that he has exposed
the theft, therefore, it is a case of false implication.
5. In order to strengthen the said defence,
the accused has examined two witnesses. Besides
that the learned Counsel for the applicant took me
through the medico legal injury report which shows
that there was total absence of injury and medical
officer opined that unnatural sexual intercourse could
not be possible.
6. The conviction is solely based on the
victims' evidence. There is no corroboration from the
medical evidence and there is 5 days delay in
lodgment of the first information report. Considering
these aspects the matter needs consideration, hence
it is case to suspend the substantive sentence during
the pendency of the appeal, hence, the following
order.
(i) Criminal Application is allowed and
Order 2510appa556.21
disposed of.
(ii) The execution and implementation of the
substantive sentence imposed by by the
Additional Sessions Judge, Amravati in
Special POCSO Case No.279/2010 on
02.09.2021, stands suspended till the
final disposal of the appeal.
(iii) In the meantime, the applicant/appellant
be released on bail on his execution P.R.
Bond in the sum of Rs.50,000/- with one
surety in the like amount.
JUDGE
Rgd.
