Bombay High Court
Atul Uttam Avale vs The State Of Maharashtra And Anr on 5 April, 2022
Bench: Prakash Deu Naik
25. IA-1122-2021-in- APEAL-307-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1122 OF 2021
IN
CRIMINAL APPEAL NO. 307 OF 2021
Atul Uttam Avale ...Applicant/Appellant
Versus
The State Of Maharashtra And Anr. ...Respondents
....
Ms. Rakhee S. Dube i/by Mr. J. M. Argade Advocate for the
Applicant/Appellant.
Mr. Nikhilesh Pote, Advocate for Respondent No.2.
Mr. S. V. Gavand, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 5th APRIL, 2022.
PER COURT:
1. This is an application for suspension of sentence and
grant of bail during pendency of Criminal Appeal No.307 of 2021.
2. The applicant has been convicted for offence
punishable under Section 363 of Indian Penal Code (for short
"IPC") and sentenced to suffer rigorous imprisonment for three
years. He is also convicted for offences under Sections 354-A,
354-B of IPC and Section 8 of Protection of Children from Sexual
Offences Act, 2012 (for short 'POCSO Act') and sentenced to suffer
imprisonment of three years. He is also convicted for offence under
Section 12 of the POCSO Act and sentenced to suffer rigorous
Digitally
signed by
1 of 5
SAJAKALI
SAJAKALI LIYAKAT Sajakali Jamadar
LIYAKAT JAMADAR
Date:
JAMADAR 2022.04.05
17:33:15
+0530
25. IA-1122-2021-in- APEAL-307-2021.doc
imprisonment for one year.
3. The prosecution case is that the FIR was lodged on
8th July, 2016. The accused was residing in the house of the victim
therefore she knows him. In the year 2014, the accused was
stalking her. In February - 2016, the accused followed her on
motorcycle and told her to sit on his motorcycle. The victim
refused. She was threatened and made to sit on his motorcycle.
She was taken to Swarget and thereafter to another place. The
accused opened the door of premises and took her inside. She was
asked to remove her clothes. The accused had forcibly removed
her top. The victim slapped him. She was under fear. Thereafter,
the accused brought the victim to her house. On 1 st July, 2016, the
mother of victim inquired with her about silence and then she
disclosed about the incident to her. The First Information Report
(for short 'FIR') was registered.
4. Learned counsel for the applicant submits that the
applicant was on bail during the trial. He has not misused the
facility of bail. The sentence is of short term. The appeal may not
come up for hearing immediately. The case of the prosecution is
concocted at the instance of the mother of victim. The accused and
the victim acquainted with each other. No incident of outraging
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modesty or kidnapping had occurred. The evidence of victim
indicate that both of them were friendly. There has been delay in
lodging the FIR.
5. Learned APP submitted that the date of birth of the
victim has been admitted by the victim. There is sufficient
evidence to convict the applicant.
6. Learned counsel for the respondent No.2 submitted
that the evidence of victim girl refers to incident of removing her
top and thereby the accused have committed the alleged offence
for which he has been convicted. The FIR was lodged after the last
incident. There is no dispute about the age of victim. Specific role
has been attributed to the applicant.
7. On the date of conviction the trial Court has
suspended the sentence of imprisonment. The Learned counsel for
applicant on instructions submitted that the applicant has
surrendered to custody before the trial Court today and he has
been taken in custody. The sentence of imprisonment awarded by
the trial Court is of short term. There is no adverse report with
regards to misuse of facility of bail granted to the applicant. From
the evidence of the victim it appears that the accused was known to
her. The first incident of stalking her had occurred somewhere in
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the year 2014, thereafter, it is alleged that on February - 2016, the
victim was forced to sit on the motorcycle and taken to the place of
incident. The case of the prosecution is that the accused has
forcibly removed the top of the victim. The victim then slept him.
The accused then dropped her at residence.
8. From the tenor of the version it appears that it is
difficult to accept that she was forcibly taken on motorcycle on the
place of incident. Arguable questions are required to be considered
at the time of final hearing of appeal.
9. Considering the aforesaid aspects, case for suspension
of sentence and grant of bail is made out.
10. Hence, I pass the following order:
ORDER
i. Interim Application No. 1122 of 2021 is allowed;
ii. During the pendency of Criminal Appeal No.307 of
2021, the sentence of imprisonment imposed vide Judgment
and order dated 22nd February, 2021 passed by learned Extra.
Joint Additional Sessions Judge, Pune in Special Case
(POCSO)No.303 of 2017 is suspended and the applicant is
directed to be released on bail on executing P.R. Bond in the
sum of Rs.20,000/- with one or more sureties in the like
amount;
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iii. The applicant is permitted to furnish cash bail in the
sum of Rs.20,000/- for a period of ten weeks in lieu of surety.
iv. The applicant shall attend the trial Court once in six
months on first Saturday of the month till the final 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 cancellation of
bail.
vi. The applicant shall not cause any harassment to the
victim.
vii. Interim Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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