Bombay High Court
Md. Noushad Md. Shamshad Abbassi vs The State Of Maharashtra And Anr on 1 April, 2022
Bench: Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2925 OF 2021
IN
CRIMINAL APPEAL NO. 978 OF 2021
Md. Noushad Md. Shamshad Abbassi ...Applicant
Versus
The State of Maharashtra & Anr. ...Respondents
......
Mr. Ritesh Thobde a/w. Mr. Sagar S. Tambe for the Applicant.
Ms. S.V. Sonawane, APP for the Respondent -State.
Ms. Shraddha Sawant for Respondent No.2.
......
CORAM : PRAKASH D. NAIK, J.
DATED : APRIL 01, 2022
P.C. :
1. This is an application for suspension of sentence and
grant of bail pending Criminal Appeal No. 978 of 2021.
2. The applicant has been convicted for the ofence
punishable under Section 377 of the Indian Penal Code ("the
IPC") and Section 4 of the Protection of Children from Sexual
Ofences Act, 2012 (for short, "the POCSO"). He has been
sentenced to undergo imprisonment of seven years with fne of
Rs. 2,000/- and ten years imprisonment with fne of Rs. 5,000/-
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on each count respectively vide judgment and order dated 17 th
November, 2021.
3. The prosecution case is that the victim boy aged about
10 years, was subjected to unnatural sexual assault by the
applicant. The incident had occurred on 1st June, 2017. FIR
was registered. The applicant was arrested on 2 nd June, 2017.
On completing investigation, charge-sheet was fled.
4. Learned counsel for the applicant submitted that the
applicant has been falsely implicated in this case. There is no
evidence to convict him. The age of victim was not proved.
There were no injuries on the person of victim. No stains of oil
were found on the clothes of victim and applicant. The mother
of victim was not examined. The evidence of witnesses sufers
from contradictions. The medical certifcate is silent about
unnatural sex. The medical certifcate does not indicate that
there were any injuries to anus. The Chemical Analyzer Report
do not support the prosecution case. The prosecution has
brought on record bonafde certifcate, which is not a proof to
determine the age of victim. The applicant was on bail during
the trial. He has not misused the facility of bail.
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5. Learned APP and learned counsel appointed to represent
respondent No.2 have opposed this application. It is submitted
that the victim was a minor boy. There is no reason to
disbelieve his version. There is presumption under Section 29
of the POCSO Act. All the witnesses have supported the case of
prosecution. Age of the victim has been proved. The
headmaster of school was examined, who has produced
bonafde certifcate to determine the age of victim. The
ofence is of serious in nature.
6. The alleged incident had occurred on 1st June, 2017.
During pendency of the trial, the learned Additional Sessions
Judge, Solapur had granted bail to the applicant vide order
dated 4th October, 2017 on certain terms and conditions.
There is no adverse report about misuse the facility of bail.
7. PW-2 is the complainant, whose deposition is hearsay.
PW-4 is the victim. He has referred to sexual assault. He has
not referred to his age at the time of incident. PW-5 is the
Headmaster of school. He has produced bonafde certifcate
and other documents. Birth certifcate was not produced on
record.
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8. PW-6 is the Medical Ofcer. The evidence of Medical
Ofcer refers to the following aspects :
(i) The victim was complaining about pain in abdomen.
(ii) He has narrated the history of anal sexual
intercourse.
(iii) Possibility of unnatural sexual intercourse cannot be
ruled out.
(iv) He admitted that the medical certifcate is silent as
to who has narrated the history.
(v) In case of forceful insertion of foreign body into
anus of human body, injury is bound to occur. He
voluntarily stated that it may or may not occur, it
depends upon foreign body.
(vi) At the time of medical examination, he did not fnd
any evidence of visible injury in anus. He did not fnd
any evidence of bleeding. He did not notice any injury on
the entire body of victim.
(vii) The medical certifcate (Exh. 43) is silent about
possibility of unnatural sexual intercourse.
(viii) In case of forceful insertion of private part by a man
into anus then private part of that person may sustain
injury.
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(ix) Pain in abdomen can be possible due to various
reasons, which is a common complaint.
(x) In case of unnatural sexual intercourse, detail
examination of anus is necessary. He did not refer the
victim for X-ray of anus. On examining the anus part of
victim, he found it was normal in appearance.
9. The medical report mentions that there is no visible injury
over anorectal region.
10. The CA report regarding coconut oil on the clothes of
victim and accused is negative. The CA report regarding the
blood of victim opines that no blood was detected on nail
clipping and no semen was detected on rectal swab. Blood
group of the victim cannot be determined as the results are
inconclusive.
11. Prima facie the medical evidence runs counter to case of
prosecution. Applicant was on bail during the trial. Considering
the aforesaid circumstances, the applicant has made out a
case for suspension sentence and bail. Hence, I pass the
following order :
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ORDER
i) Interim Application No. 2925 of 2021 is allowed;
ii) During the pendency of Criminal Appeal No.978 of
2021, the sentence of imprisonment imposed vide
Judgment and order dated 17th November, 2021 passed
by learned Additional Sessions Judge, Solapur in Special
Case No.225 of 2017 is suspended and the applicant is
directed to be released on bail on executing P.R. Bond in
the sum of Rs.25,000/- with one or more sureties in the
like amount;
iii) The applicant is permitted to furnish cash bail in the
sum of Rs.25,000/- for a period of eight weeks in lieu of
surety;
iv) The applicant shall attend the trial Court once in six
months on frst Saturday of the month till the fnal
disposal of the appeal;
v) In the event, there are two consecutive defaults in
attending the trial Court, the said fact may be brought to
the notice of this Court and in such eventuality, the
prosecution will be at liberty to prefer an application for
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cancellation of bail.
vi) The applicant shall not approach victim or cause
any harassment to him or his family;
vii) Interim Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
