Arbaz Moijjuddin Shaikh vs The State Of Maharashtra And Ors
2021 Latest Caselaw 12479 Bom

                     Megha                             25_IA_516_2021 in apeal_145_2021.doc

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION
                                   INTERIM APPLICATION NO.516 OF 2021
MEGHA
        Digitally
        signed by
        MEGHA S
                                                   IN
                                     CRIMINAL APPEAL NO.145 OF 2021
        PARAB
S       Date:
PARAB   2021.09.04
        18:19:41

                                                 WITH
        +0530




                                     CRIMINAL APPEAL NO.145 OF 2021
                     Arbaz Moijjuddin Shaikh                 ...Applicant
                                    Versus
                     The State of Maharashtra & Ors.               ...Respondents
                                                       ....
                     Ms Jyoti Shahu for the Applicant.
                     Mr. S.V. Gavand, APP for Respondent No.1-State.
                     Ms Devyani Kulkarni for Respondent No.2.


                                                 CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 2nd SEPTEMBER, 2021.

P.C.:-

This is an application under Section 389 of the Code of

Criminal Procedure, 1973 for suspension of substantive sentence

imposed by judgment dated 15/10/2020 passed by learned Special

Judge, POCSO Act, Greater Bombay, in POCSO Special Case No.482 of

2015 and to enlarge the Applicant on bail.

2. The Applicant was tried for ofences punishable under

Sections 363 and 376 of the IPC and Sections 4, 6, 8 and 12 of the

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

impugned judgment dated 15/10/2020, the Applicant has been held

Megha 25_IA_516_2021 in apeal_145_2021.doc

guilty of ofence under Section 363 of the IPC and sentenced to sufer

rigorous imprisonment for 5 years and to pay fne of Rs.5,000/- i/d to

sufer further rigorous imprisonment for 3 months. The Applicant has

challenged this conviction and sentence in appeal fled under Section

374 of the Code of Criminal Procedure, 1973 and fled this application

for suspension of sentence pending the hearing of the appeal.

3. Heard Ms Jyoti Shahu, learned counsel for the Applicant

seeks suspension on the ground that the victim and her mother have

expired, that there is delay of 9 days in recording the statement of the

grandmother of the victim and further that the Applicant is a married

man and has a child of one and half years of age.

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

Ms Devyani Kulkarni, learned counsel for Respondent No.2 submit that

the victim has expired after her evidence was recorded. It is stated that

the victim was 13 years of age and that her evidence as well as the

medical evidence clearly makes out a case for rape.

5. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties.

Megha 25_IA_516_2021 in apeal_145_2021.doc

6. The Applicant is alleged to have committed an ofence of

rape on a minor girl. As per the evidence of the prosecutrix and the

birth certifcate, the date of birth of the prosecutrix is 23/01/2002. The

material on record thus prima facie reveals that as on the date of the

incident i.e. on 11/06/2015 the prosecutrix was 13 years of age and thus

a child within the meaning of Section 2(d) of the POCSO Act.

7. The evidence of the prosecutrix prima facie indicates that on

11/06/2015 the Applicant forcibly took her to his friend's house at

Vithalwadi and introduced her as his girlfriend. Thereafter the

Applicant took her to his house. He touched her and asked her to

remove her clothes. When she refused, the Applicant slapped her. The

Applicant thereafter had forcible sexual intercourse with her. On the

next day the Applicant dropped her at Pratiksha Nagar. She narrated

the incident to her family members. FIR came to be lodged against the

Applicant for kidnapping the victim and for rape /penetrative sexual

assault. Upon registration of the crime, the victim was referred for

medical examination. She was examined by PW5-Dr. Rajesh Dere on

13/06/2015. He has deposed that the hymen of the victim was not

intact. The learned Judge has observed in para 22 of the impugned

judgment that the medical certifcate records that hymen injury was

Megha 25_IA_516_2021 in apeal_145_2021.doc

present and that this supports the prosecution story of recent sexual

penetrative assault. The foundational facts having been established,

learned Judge invoked the statutory presumption under Section 29 of

the POCSO Act and held that the Applicant has not been able to create

serious doubt about the veracity of prosecution case.

8. Having considered the evidence on record, in my considered

view there is prima facie evidence to prove that the Applicant had

committed penetrative sexual assault on a girl, who was barely 13 years

of age. The gravity of the ofence and the severity of sentence would

not justify suspension of sentence. Hence, the Application is dismissed.

9. However, considering the fact that the matter relates to

penetrative sexual assault against a child, hearing of the appeal is

expedited. Appeal be listed on fnal hearing board commencing from

27/09/2021.

(SMT. ANUJA PRABHUDESSAI, J.)