Bombay High Court
Omkar Dattatray Dangat vs The State Of Maharashtra on 26 April, 2022
Bench: Prakash Deu Naik
26-IA-636-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 636 OF 2022
IN
CRIMINAL APPEAL NO. 229 OF 2020
Omkar Dattatray Dangat ...Applicant/Appellant
Versus
The State Of Maharashtra & Anr. ...Respondents
....
Mr. Adwait Bhonde, Advocate for the Applicant/Appellant
Mr. Prosper Disouza, Advocate for Respondent No.2.
Mr. Arfan Sait, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 26th APRIL, 2022.
PER COURT:
1. The applicant is seeking suspension of sentence and
grant of bail during the pendency of Criminal Appeal No.229 of
2020.
2. The applicant has been convicted by the Court of
learned Additional Sessions Judge, Pune vide judgment and order
dated 9th July, 2019 for offence punishable under Section 363 of
Indian Penal Code (for short "IPC") and sentenced to suffer
rigorous imprisonment of three years. He is also convicted for
offence under Section 366-A of IPC and sentenced to suffer
rigorous imprisonment of five years. He is further convicted for
Digitally signed
by SAJAKALI
SAJAKALI LIYAKAT
JAMADAR
LIYAKAT Date: Sajakali Jamadar 1 of 6
JAMADAR 2022.04.28
13:15:27
+0530
26-IA-636-2022.doc
offence under Section 376(2)(n) of IPC r/w Sections 4 & 6 of
Protection of Children from Sexual Offences Act, 2012 (for short
'POCSO Act') and sentenced to suffer rigorous imprisonment of ten
years and to pay fine of Rs.10,000/-.
3. The case of the prosecution is that the victim girl was
acquainted with the accused. She was subjected to forcible sexual
intercourse by the accused. She was pregnant. After it was noticed
that the victim was pregnant, First Information Report (for short
"FIR") was registered. The accused was arrested. Investigation
proceeded and charge-sheet was filed.
4. Learned Advocate for the applicant submitted that the
applicant is in custody for a period of about 6 years and 8 months.
The applicant has been falsely implicated in this case. The
relationship between the accused and the victim girl was of
consensual nature. There has been substantial delay in reporting
the incident and lodging the FIR. The victim girl had accompanied
the accused on several occasions and as per her evidence there was
physical relationship between them. Subsequently, it was alleged
that she was forcibly subjected to sexual assault. For convicting the
accused under the provisions of POCSO Act, the prosecution is
required to establish the age of the victim and she is minor at the
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time of incident. The birth certificate was produced by the victim
girl for the first time while recording her evidence. There is no
other corroborative evidence about the source of the birth
certificate. No other person from the office, from where the birth
certificate was obtained has been examined by the prosecution.
The appeal may not reach for final hearing immediately. There are
several discrepancies in the evidence of the prosecution witnesses.
In similar case this Court had suspended the sentence of
imprisonment. He relied upon the order passed in the case of
Tukaram Sadanand Palav V/s. State of Maharashtra in Criminal
Application No.1151 of 2019 decided on 16th February, 2021.
5. Learned APP submitted that, it is proved by the
prosecution that the victim was minor. The birth certificate of the
victim was not disputed. There was no cross examination in that
regard. The birth certificate was collected during investigation by
Investigating Officer. The victim was minor at the time of incident.
Assuming that there was love affair between the victim and the
accused, considering the fact that the victim was minor, the consent
is immaterial. The consent was obtained by deceit. The victim has
deposed that she was assaulted, threatened etc. The birth
certificate was issued by the Municipal Corporation. It is genuine
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document. Hence, no case is made out for suspension of sentence
of imprisonment.
6. Learned counsel for Respondent No.2 made similar
submissions. It is submitted that the victim was minor at the time
of incident. There is sufficient evidence to prove that the applicant
has been convicted for offence punishable under Section 376(2)(j)
of IPC. The victim was incapable of giving consent, since she was
minor.
7. He relied upon the decision of the Hon'ble Apex Court
in the case of 'X' (Minor) V/s The State of Jharkhand delivered in
Criminal Appeal No.263 of 2022 arising out of SLP (Cri) No. 9317
of 2021.
8. Undisputedly, the applicant is in custody for a period
of about 6 years and 8 months. The victim has admitted in her
evidence that there was friendship between her and the accused. It
was converted into love affair. The accused had proposed her. In
October - 2014, the accused took her to Kothrud and maintained
physical relationship with her. She has stated that she was not
willing for such relationship. The evidence discloses that there was
physical relationship between them. She had not told this fact to
her parents. The FIR was registered after it was noticed that the
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victim was pregnant. The prosecution is relying upon the birth
certificate produced by the victim girl while recording her evidence.
According to defence source of said document is not established.
No person from the office from which the birth certificate was
obtained has been examined by the prosecution. Appeal may not be
heard immediately. All these aspects will have to be considered.
From the nature of evidence and the fact that the applicant is in
custody for a period of about 6 years & 8 months, case for
suspension of sentence and grant of bail is made out.
9. Hence, I pass the following order:
ORDER
i. Interim Application No. 636 of 2022 is allowed;
ii. During the pendency of Criminal Appeal No.229 of
2020, the sentence of imprisonment imposed vide Judgment
and order dated 9th July, 2019 passed by learned Additional
Sessions Judge, Pune in Special Sessions Case No.371 of 2015
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.
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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 girl or shall not approach to the family members of the
victim girl.
vii. The applicant shall not enter into vicinity of the
residence of the victim girl.
viii. Interim Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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