Bombay High Court
Ashraf @ Afsar Mohd. Imajoddin ... vs The State Of Maharashtra And Anr on 29 September, 2021
Bench: Prakash Deu Naik
Ethape 1 1-IA-1373-2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1373 OF 2020
IN
CRIMINAL APPEAL NO.383 OF 2020
Ashraf @ AfsarMohd. Imajoddin Shaikh .. Applicant
Vs.
The State Of Maharashtra &Anr. .. Respondents
...
Mr.Abdul Hafeez Kotwala i/b Sumaira Legal Asso., Advocate
for Applicant.
Mr. Sushan Mhatre for Respondent No.2.
Digitally signed
Mr.S.R. Agarkar, A.P.P. for the State-Respondent.
...
by
DNYANESHWAR
DNYANESHWAR ASHOK ETHAPE
ASHOK ETHAPE
Date:
2021.10.01
13:35:03 +0530
CORAM : PRAKASH D. NAIK, J.
DATE : 29thSEPTEMBER, 2021
PC.
1. This is an application for suspension of sentence and
grant of bail. The applicant is convicted for offences under
Sections 4, 8, 12 of the Protection of Children from Sexual
Offences (POCSO), 2012. For the offence punishable under
Section 4 of POCSO Act, the applicant has been sentenced to
suffer RI for 15 (Fifteen) years and to pay fine of Rs.10,000/.
For the offence punishable under Section 8 of POCSO Act, he
is sentenced of suffer RI for 7 (Seven) years and to pay fine of
Rs.8,000/-. For the offence punishable under Section 12 of
POCSO Act, he is sentenced to suffer RI for 3 (three) years and
to pay fine of Rs.6,000/-. For the conviction under Section 363
Ethape 2 1-IA-1373-2020
of Indian Penal Code, he is sentenced imprisonment for 7
(Seven) years and to pay fine of Rs.8,000/-. All the sentences
are directed to run concurrently.
2. Learned counsel for the applicant submitted that the
applicant was on bail during the trial. Initially, he was arrested
on 17.03.2015 and granted bail on 01.09.2015. Thereafter,
non-bailable warrant was issued on 06.11.2019, which was
executed on 14.11.2019. He is in custody since then. The total
period of custody undergone by the applicant is about 2 years
and 4 months.
3. Learned counsel for the applicant has submitted that the
applicant has been falsely implicated in this case. There was
dispute on account of payment. There is contradiction in the
version of the witnesses. Medical evidence does not support
the case of prosecution. The medical case papers indicate that
the sexual assault is in respect of old incident. It is the case of
the prosecution that immediately after the victim was sexually
abused, she was medically examined. There are contradictions
between the statements under Sections 161 and 164 of Cr.P.C.
There are discrepancies in the evidence of the prosecution
witnesses.
4. Learned APP submits that there is sufficient evidence to
convict him. The medical case papers indicate that the hymen
Ethape 3 1-IA-1373-2020
was not intact. There is no reason for the complainant to
falsely implicate the applicant. Victim was aged about 8 years
at the time of incident. Some minor discrepancies would not
demolish the prosecution case. He also drew my attention to
paragraph 32 of the impugned judgment wherein it is
mentioned that the clothes of the victim and the accused were
forwarded for Forensic Science Laboratory (for short "FSL"). As
per FSL report, two blood strains were found on the top of the
victim. Hymen strains were found on jeans of accused. The
accused admitted that the Chemical Analysis Report could not
give explanation about availability of semen on his jeans.
5. Learned Advocate Mr. Mhatre appearing for the
complainant submitted that there is sufficient evidence to
convict the appellant. There is consistency in the version of the
victim about the sexual assault. There is no suggestion put to
the witnesses to substantiate his defence. The medical case
papers clearly mention that hymen was not intact. The
submissions of the applicant is to be appreciated at the time of
appreciating evidence when the appeal would be heard finally.
6. Heard both sides. I have perused the evidence. It is
contended by learned counsel for the applicant that there are
contradictions in the statement under Section 164 of Cr.P.C.
On perusal of the statement it is apparent that there is
consistency in the statement of victim that she was sexually
Ethape 4 1-IA-1373-2020
assaulted. It is also pertinent to note that contradictions, if
any, were not put to the witnesses. Suggestions were not put
to the witnesses. At this stage, no finding can be given in
favour of applicant. The victim was 8 years old at the time of
incident. She has categorically referred to the sexual assault.
Although, the applicant was on bail during the trial,
considering the nature of evidence, no case for suspension of
sentence and grant of bail is made out. Hence, following
order:-
ORDER
(i) Interim Application No.1373 of 2020 stands rejected.
(ii) Hearing of appeal is expedited.
(iii) It is clarified that the observations made in this order
are only for considering the application for suspension
of sentence and while finally adjudicating the appeal
Court may not be influenced by these observations.
(iv) Application is disposed of.
(PRAKASH D. NAIK, J.)
