Abdul Husenmiya Shaikh vs The State Of Maharashtra And Anr
2021 Latest Caselaw 12471 Bom

                           Megha                             11_IA_1521_2021 in apeal_493_2021.doc

                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CRIMINAL APPELLATE JURISDICTION

                                         INTERIM APPLICATION NO.1521 OF 2021
        Digitally signed
MEGHA   by MEGHA S
        PARAB
S       Date:


                                                         IN
        2021.09.06
PARAB   17:11:21
        +0530



                                           CRIMINAL APPEAL NO.493 OF 2021

                           Abdul Husenmiya Shaikh                          ...Applicant
                                         Versus
                           The State of Maharashtra & Anr.               ...Respondents
                                                              ....
                           Mr. Nilesh Tribhuwan with Mr. Bazzin Bharucha, Ms Alisha Pinto, Mr.
                           Jehan Fulwadiwal, Mr. Shreedhar Lad i/b. M/s. White and Brief
                           Advocates and Solicitors for the Applicant.
                           Mr. S.V. Gavand, APP for Respondent No.1-State.
                           Mrs. Savita Yadav i/b. Ms Manisha Devkar for Respondent No.2.


                                                      CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 2nd SEPTEMBER, 2021.

P.C.:-

By this application under Section 389 of the Code of Criminal

Procedure, 1973 the Applicant seeks suspension of substantive

sentence imposed by judgment dated 04/03/2021 passed by learned

District Judge-2 and Additional Sessions Judge, Thane in Special

(POCSO) Case No.194 of 2018 and enlargement on bail.

2. The Applicant was charged for ofences under Sections 323,

354, 376, 377 and Section 506 of the IPC and Sections 4 and 6 of the

Protection of Children from Sexual Ofences Act, 2012. By the

impugned judgment, the learned Judge has held the Applicant guilty of

Megha 11_IA_1521_2021 in apeal_493_2021.doc

ofences punishable under Sections 323, 354 and 376 of the IPC r/w.

Section 4 of the POCSO Act. He has been sentenced to undergo

rigorous imprisonment for ten years under Section 376 of the IPC and

one year under Section 354 of the IPC and six months under Section 323

of the IPC. No separate sentence is imposed under Section 4 of POCSO

Act.

3. Charge against the Applicant is that he had committed rape /

penetrative sexual assault on a minor girl aged about 8 years of age.

The evidence of the victim prima facie indicates that the Applicant was

involved in commission of the said crime. The medical evidence also

suggests that there was evidence of penetrative vaginal intercourse.

Thus, the material on record indicates that the Applicant, who is over 50

years of age has sexually abused the child who was barely 8 years of age

as on the date of incident. The ofence is not only grave but heinous in

nature. There is prima facie material to believe that the Applicant was

involved in commission of the crime.

4. Considering the nature of accusations, gravity of ofence

and severity of punishment, in my considered view this is not a ft case

for suspension of sentence and hence, the application is dismissed.

(SMT. ANUJA PRABHUDESSAI, J.)