Nasir Raja Mohd. Nijamuddin ... vs The State Of Maharashtra And Anr
2021 Latest Caselaw 15226 Bom

                     Megha                               22_IA_1937_2021.doc

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION

                                    INTERIM APPLICATION NO.1937 OF 2021
        Digitally
        signed by
MEGHA   MEGHA S
        PARAB
S
                                                    IN
        Date:
PARAB   2021.10.27
        14:00:05
        +0530




                                      CRIMINAL APPEAL NO.635 OF 2021

                     Nasir Raja Mohd. Nijamuddin                      ...Applicant
                     Shaikh
                                    Versus
                     The State of Maharashtra and Anr.              ...Respondents
                                                       ....
                     Mr. Manish Rathod for the Applicant.
                     Mr. S.V. Gavand, APP for Respondent No1.-State.
                     Ms Ameeta Kuttikrishnan for Respondent No.2.


                                                CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 25th OCTOBER, 2021.

P.C.:-

This is an application under Section 389 of the Code of

Criminal Procedure, 1973 for suspension of sentence imposed by

judgment dated 07/04/2021 passed by the learned Designated Judge

under Protection of Children From Sexual Ofences Act, 2012 for

Greater Bombay, in POCSO Special Case No.582 of 2018 and to enlarge

the Applicant on bail.

2. By the impugned judgment, the learned Judge has held the

Applicant guilty of ofences punishable under Sections 354 and 354-A of

Megha 22_IA_1937_2021.doc

the IPC, and Section 10 of the Protection of Children from Sexual

Ofences, Act, 2012 (POCSOC and sentenced to undergo rigorous

imprisonment for six years and to pay fne of Rs.20,000/- i/d to sufer

rigorous imprisonment for two months.

3. Heard Mr. Manish Rathod, learned counsel for the Applicant,

Mr. S.V. Gavand, learned APP for Respondent No.1-State and Ms Ameeta

Kuttikrishnan, learned counsel for Respondent No.2. Perused the

records and considered the submissions advanced by learned counsel

for the respective parties.

4. The case of the prosecution in brief is that between

27/08/2018 to 29/08/2018 the Applicant touched the vagina of the

victim, who was below 12 years of age. The evidence of prosecutrix

reveals that the victim was born on 30/10/2010. She was studying in 3 rd

grade in National Girls Urdu High School. Her school hours are 12.30

p.m. to 5.30 p.m. In the morning 8.00 to 12 she used to go to Khar

Jamatul Mulkimin Madarasa to learn Quran. On 29/08/2018 she

narrated to her uncle-PW1 that between 27/08/2018 to 29/08/2018 the

Applicant had inserted his hand into her leggings and had touched her

vagina. PW1 therefore lodged the FIR against the Applicant. Pursuant

to which crime No.250 of 2018 came to be registered against the

Megha 22_IA_1937_2021.doc

Applicant at Nirmal Nagar Police Station, Mumbai.

5. The evidence of the victim indicates that the Applicant had

touched her vagina whereas the evidence of PW1 indicates that she had

informed him that the Applicant had inserted his fngers into her vagina.

There is prima facie discrepancy in the evidence as regards the actual

act committed by the Applicant.

6. It is also on record that several other children used to attend

the classes at the said Madarasa. The victim has not specifed whether

the Applicant had taken her to any other secluded place or whether he

had committed the act of sexual assault in presence of other children.

The prosecution has not examined any other witness, who had seen the

Applicant taking the child at any other place and or behaving

inappropriately.

7. It is also to be noted that the victim has stated that her

father had narrated the incident to the police, and in the same breath

she claims that she had disclosed the incident to police. Prima facie

there appear to be several discrepancies. It is also stated that the

Applicant was on bail during trial and that he has not violated the terms

and conditions of the bail.

Megha 22_IA_1937_2021.doc

8. Considering the above facts and circumstances, in my

considered view this is a ft case to suspend the sentence pending

disposal of the appeal. Hence, the application is allowed on following

terms and conditions :-

(iC The substantive sentence imposed vide judgment dated

07/04/2021 in POCSO Special Case No.582 of 2018 is

suspended pending disposal of the appeal;

(iiC The Applicant is ordered to be released on bail on

furnishing PR bonds in the sum of Rs.20,000/- with one

or two sureties to the like amount;

(iiiC The Applicant shall report to the Trail Court, once in

three months on the day/date specifed by the Trial

Court, till the appeal is fnally disposed;

(ivC The Applicant shall keep the Trial Court informed of his

current address and mobile contact number and/or

change of residence or mobile details, if any, from time

to time;

(vC 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

Megha 22_IA_1937_2021.doc

at liberty to fle an application seeking cancellation of

bail.

9. The application stands disposed of.

(SMT. ANUJA PRABHUDESSAI, J.)