Bombay High Court

Javed Khatri @ Machhar Mohd. Javed ... vs The State Of Maharashtra And Anr on 4 April, 2022

Bench: Prakash Deu Naik

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

INTERIM APPLICATION NO.2534 OF 2021
IN
CRIMINAL APPEAL NO.862 OF 2021

Javed Khatri @ Machhar Mohd. Javed Hanifbhai Applicant
versus
The State of Maharashtra and another Respondents

Mr.Pankaj Pandey with Mr.Firoz Shaikh, Advocate for applicant.
Mr.R.R.Nair, Advocate for respondent no.2.
Mr.Arfan Sait, APP, for State.
Mr.Babasaheb Dukale, P.I, and Mr.Anil Bhabal, PSI, Dongri Police
Station, present.

CORAM : PRAKASH D. NAIK, J.

DATE : 4th April 2022
PC :

1. This is an application for suspension of sentence and grant of
bail during pendency of Criminal Appeal No.862 of 2021. The
applicant has been convicted for offence under Section 376 of Indian
Penal Code and under Section 4 of Protection of Children from
Sexual Offences Act, 2012 (`POCSO Act'). He has been sentenced to
undergo imprisonment of ten years and pay fine of Rs.1,00,000/-.
He was acquitted for the offence under Sections 37, 506 of IPC and
under Section 12 of POCSO Act.

2. The case of prosecution is that the accused is a married person
and neighbour of victim. The victim was aged around 14 years 7
Digitally signed by
MANISH MANISH SURESH
SURESH THATTE
Date: 2022.04.05 17:14:32
THATTE +0530

months at the tie of incident. The accused and the complainant are
residing on the same floor. Both the families are on visiting terms at
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each others houses. At the relevant time the victim was studying in
8th standard. She was attending tuition with PW-5. On 1 st April 2019
the victim girl and her friend who reside in the same building left for
tuition. The friend of victim was told by the victim to wait below the
building and the victim girl went to the house to get her pencil pouch
and return shortly. Since the victim girl did not return, the victim's
friend went to the house of victim to enquire whether she is coming
for tuition. The complainant is the mother of victim. On enquiry by
the friend of victim she got alarmed since the teacher of the victim
had informed her that accused was inappropriately touching the
victim. The complainant felt that victim must be in the house of
accused. So she called neighbour (PW-9) who knocked the door of
accused. The door was opened the door partially and accused
informed that his wife is not at the home. The complainant heard
sobbing voice of the victim coming behind the door of accused. PW-
9 and the complainant found that victim was behind the door in the
house of accused and she was crying and scared. The accused stated
that victim does not want to go for tuition class and therefore she is
sitting in his house. The victim on the next day revealed to the
teacher that on the earlier day when she left for tuition, the accused
met her down at the building. He forced and threatened her to come
to his house. He forcibly removed her clothes and committed sexual
intercourse. He also outraged her modesty. The victim also
disclosed to her tuition teacher that accused had touched her
inappropriately on two occasions in the month of March-2019. The
teacher had noticed that victim was not paying attention to her
studies. The victim embressed the teacher and started crying. The
victim disclosed the acts committed by the accused. Thereafter they
went to Police Station and lodged the FIR. The victim was sent for
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medical examination. On completing investigation charge sheet was
filed.

3. The prosecution had examined about 11 witnesses By
judgment and order dated 10 th August 2021 the applicant-accused
was convicted for the aforesaid offences.

4. Learned advocate for applicant submitted that the applicant
has been falsely implicated in this case. He is in custody for three
years. There are serious omissions in the version of victim and the
complainant. Some of the witnesses have not supported the case of
prosecution. The victim did not disclose the incident to her mother.
The friend of victim did not support prosecution case. There is delay
in registering the FIR. There were signs of injuries on the person of
victim. There was suppression of fact that victim was initially treated
by private gynecologist. The medical officer had opined that in the
event some foreign article is inserted in the private part, there is
likelihood that hymen would be torn. The evidence suffer from
several improvements. The applicant is in jail for a period of three
years. The appeal may not come up for hearing immediately.

5. Learned APP submitted that offence is of serious nature. The
accused is immediate neighbour of victim. He is a married person.
He took disadvantage of the relation between two families. The
victim was continuously subjected to sexual assault. The victim was
minor. The medical opinion indicate that there was tear in the
hymen. The version of victim is corroborated by medical evidence.
Other witnesses have supported prosecution case. The omissions did
not affect core of prosecution case. There are three independent
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witnesses. The victim had embressed her tuition teacher and
disclosed the incidents of sexual assaults to her. The evidence of
victim cannot be doubted. There were injuries on the person of
victim. At this stage there is no reason to disbelieve the version of
witnesses who have supported the prosecution case.

6. Learned advocate for respondent no.2 has supported
submissions of learned APP. Reply has been filed on behalf of
complainant opposing application for bail. Learned advocate for
respondent no.2 has also filed written submissions on behalf of
respondent no.2. It is submitted that there is sufficient evidence
against applicant. The charge is proved against him. The victim was
a minor child. There is no reason to discard her evidence at this
stage. The testimony of victim is consistent during cross-
examination. Her evidence is corroborated by documentary
evidence. Medical report of victim shows 6 o'clock position tear of
the hymen. The medical examination of accused reveals partially
healed scratch, abrasion on left shoulder, on suprastornal notch, on
left side of back, on left scapular region, on right scapular region.
The forensic examination of accused proved that he was scratched by
victim with her nails in desperate attempt to save herself. The
medical evidence and evidence of other witnesses supports
prosecution case. There is no reason to disbelieve the version of
victim. The victim was repeatedly sexually assaulted by accused.
Hence applicant for suspension of sentence and grant of bail may be
rejected.

7. I have perused the evidence on record. Undisputedly the
accused and victim are residence of the same building and residing
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on the same floor. Both the families were acquainted with each
other. The victim was less than 15 years of age at the time of
incident. The accused is married person. The victim had disclosed
the nature of sexual assault attributed to the accused. The tuition
teacher disclosed the information provided to her by victim. PW-2 is
social worker. PW-3 is maid of the victim. PW-5 is tuition teacher.
PW-6 is friend of victim. Although there are some omissions in the
deposition of witnesses, they are not fatal to the prosecution case
qua the act of sexual assault committed by accused. At this stage it is
difficult to discard or disbelieve these witnesses. Prima facie case for
suspension of sentence and grant of bail is not made out. Hence I
pass following order :
ORDER

(i) Interim Application is rejected;

(ii) It is made clear that observations made in this order are for considering the application for suspension of sentence and grant of bail during pendency of Criminal Appeal No.862 of 2021;

(iii) Hearing of Criminal Appeal No.862 of 2021 is expedited.

(PRAKASH D. NAIK, J.) MST