Sanjay S/O Mohan Jadhav vs The State Of Mha. Thr. Pso Ps Arni ...
2022 Latest Caselaw 13523 Bom

                                           1                                    26 appa628.22.odt


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            : NAGPUR BENCH : NAGPUR.

              CRIMINAL APPLICATION (APPA) NO. 628 OF 2022
                                 IN
                   CRIMINAL APPEAL NO. 490 OF 2022
                                 SANJAY S/o MOHAN JADHAV
                                              VERSUS
  STATE OF MAH., THRU. P.S.O., PL.S., ARNI, DIST. YAVATMAL AND ANOTHER
-------------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of                         Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
-------------------------------------------------------------------------------------------------------
                          Mr. Akshay A. Naik, Advocate with Mr. Atharv Manohar, Advocate
                          for the appellant/applicant
                          Mrs. Kalyani Deshpande, A. P. P. for the respondent no.1/State
                          Ms. Sonali Saware-Gadhwe, Advocate appointed for the respondent
                          no.2/victim.

                                CORAM : SANDEEP K. SINDE and G. A. SANAP, JJ.

Date of reserving the Order : DECEMBER 22, 2022 Date of pronouncement of Order : DECEMBER 23, 2022

1. The appellant has made this application for

suspension of substantive sentence awarded on various

counts in Special Case No. 22 of 2022. The learned Special

Judge, Darwha has convicted the appellant for the offences

punishable under Sections 376-AB of the Indian Penal

Code, Section 6 of the Protection of Children from Sexual

Offences Act, 2022 (hereinafter referred to as " the POCSO

Act" for short) and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989 (hereinafter referred to as "the Atrocities Act" for 2 26 appa628.22.odt

short). For the offence punishable under Section 376-AB of

the IPC, the appellant is sentenced to suffer rigorous

imprisonment for life and to pay a fine of Rs.5,000/- and in

default to further suffer RI for three months. For the

offence punishable under Section 6 of the POCSO Act, the

appellant is sentenced to suffer rigorous imprisonment for

life and to pay a fine of Rs.5,000/- and in default to further

suffer RI for three months. For the offence punishable

under Section 3(2)(v) of the Atrocities Act, the appellant is

sentenced to suffer rigorous imprisonment for life and to

pay a fine of Rs.5,000/- and in default to further suffer RI

for three months.

2. The case of the prosecution is that on 13.03.2022

between 8.00 am and 2.00 pm, the appellant committed

sexual assault on the victim, who on the date of the offence

was 6 years and 4 months old. The mother of the victim

lodged the report. The victim was medically examined. In

the medical examination, the Medical Officer found

laceration on the urethra of the victim. The blood samples

of the victim and the appellant were collected. The clothes

of the victim and the clothes of the appellant stained with

blood were seized. The DNA analysis of the samples 3 26 appa628.22.odt

revealed that blood found on the underwear of the

appellant was of the victim. Learned Judge, after

considering oral and documentary evidence found the

appellant guilty and accordingly convicted and sentenced

him as above.

3. In the appeal filed against the judgment of

conviction and sentence, this application for suspension of sentence has been made. It is the case of the appellant that

he has been falsely implicated in the case. The investigation is tainted. There are major drawbacks and lacunae in the

investigation. The evidence on record is not sufficient to prove the charge against him. He has been behind the bars

from the date of his arrest. He has good case on merits. It is submitted that the evidence on record is not sufficient to

sustain the order of his conviction and sentence. Therefore, during pendency of the appeal, the sentence is required to

be suspended.

4. Respondent no.1-State and respondent no.2- victim have filed the reply and opposed the application. It

is contended that evidence adduced by the prosecution has been converted into a finding of guilt against the appellant.

The evidence is concrete, cogent and reliable. The learned 4 26 appa628.22.odt

Judge has recorded the reasons in support of his findings.

The evidence cannot be analyzed or re-appreciated while deciding the application for suspension of sentence.

Considering the gravity and seriousness of the crime proved against the appellant, his sentence cannot be suspended.

5. We have heard Mr. Akshay A. Naik and Mr.

Atharv Manohar, learned advocates for the

applicant/appellant, Mrs. Kalyani Deshpande, learned

Additional Public Prosecutor for the respondent no.1/ State

and Mrs. Sonali Saware-Gadhwe, learned advocate

appointed for the respondent no.2/victim. Perused the

record and proceedings.

6. Learned advocate for the applicant took us

through the evidence and material on record. He submitted

that sealing of the samples in this case is doubtful. The

benefit of the same must go to the appellant. In support of

his submission, he relied on the decisions in the case of

Lalchand Cheddilal Yadav .vs. State of Maharashtra , reported at 2000(3) Mh.L.J. 438 ; and in Mohd. Iqbal and

another .vs. State of Maharashtra, reported at 2016 (3) ABR (Cri) 596.

5 26 appa628.22.odt

7. Learned advocate further submitted that the

chain of custody of the samples from the time of seizure till

analysis of the same by the Chemical Analyzer has not been

established. In the absence of evidence of chain of custody

of the samples, the benefit must go to the appellant. In

support of his submission, he has relied on the decisions in

the case of Shrikant Ankushrao Bramhane .vs. State of

Maharashtra, reported at AIR Online 2022 Bom 1799 ; in Jitendra .vs. State of Maharashtra, reported at 2017 SCC Online Bom 8600 ; Criminal Appeal No. 611/2022 (Supreme Court ) (Rahul .vs. State of Delhi) ; and in Omkar Uttreshwar Dhage .vs. State of Maharashtra , reported at AIR Online 2022 Bom 772.

8. Learned advocate for the applicant further

submitted that the Chemical Analyser has not been

examined in this case. He submitted that therefore, the CA

report has not been proved. It is submitted that, therefore,

CA report and the DNA reports need to be discarded. In

support of his submission, he has relied on the decision in

the case of Amol .vs. State of Maharashtra, thru. P.S.O.,

reported at 2022 SCC Online Bom 107.

6 26 appa628.22.odt

9. Learned advocate further submitted that in

respect of more than one seizure panchanama, same panch

witnesses were examined. It is submitted that this is a

suspicious and doubtful circumstance. The appellant is

entitled for benefit of the same. In order to substantiate this

submission, he has relied on the decision in State of

Haryana .vs. Ram Singh, reported at AIR 2002 SC 620.

10. Learned advocate further submitted that the

victim, a child witness, was tutored. It is submitted that

there is no corroboration to the evidence of the child

witness and therefore, evidence of tutored child witness

cannot be made the basis of conviction. In order to

substantiate this submission, he has relied on the decisions

in Digamber Vaishnav and another .vs. State of

Chhattisgarh, reported at (2019) 4 SCC 522 ; and in Hari Om alias Hero .vs. State of Uttar Pradesh , reported at (2021) 4 SCC 345.

11. Learned Advocate took us through the

evidence of the victim and pointed out certain lacunae.

Learned advocate submitted that the conviction has been 7 26 appa628.22.odt

based on the sole testimony of the victim. The evidence of

the victim is not of a sterling quality. The appellant is,

therefore, entitled to get benefit of the same. In order to

substantiate his submission, he has relied on the decision in

Santosh Prasad alias Santosh Kumar .vs. State of Bihar , reported at (2020) 3 SCC 443.

12. Learned advocate for the applicant submitted

that the material witnesses have not been examined in this

case. No explanation has been placed on record for non-

examination of the material witnesses. It is, therefore,

submitted that for suppression of material witnesses, benefit

needs to be given to the appellant. In order to substantiate

this submission, he has relied on the decision in Takhaji

Hiraji .vs. Thakore Kubersingh Chamansingh and others, reported at (2001) 6 SCC 145.

13. Learned advocate for the applicant submitted

that the presumption provided under Section 29 of the

POCSO Act is rebuttable. Learned advocate submitted that

for invocation of such a presumption, certain foundational

facts must be proved by the prosecution. It is submitted

that in this case on the basis of evidence of prosecution, the 8 26 appa628.22.odt

foundational facts have not been proved and therefore, the

learned Judge was not right in invoking the presumption as

provided under Sections 29 and 30 of the POCSO Act

against the appellant. In order to substantiate this

submission, he has placed reliance on the decision in Navin

Dhaniram Baraiye .vs. State of Maharashtra, reported at 2018 Cri.L.J. 3393.

14. Learned Additional Public Prosecutor for the

State submitted that the submissions advanced by the

learned advocate for the appellant cannot be gone into at

this stage inasmuch as the Court is required to decide the

application for suspension of sentence on the basis of the

observations made by the learned Special Judge in the

impugned judgment and order. Learned APP submitted

that threadbare re-appreciation of the evidence cannot be

made at the stage of deciding the application for suspension

of sentence. Learned APP submitted that the evidence

placed on record and the observations made in the

judgment must be considered prima facie. Learned APP

submitted that, therefore, the basic submissions advanced

by the learned advocate for the appellant relying upon the

decisions is not tenable at this stage. Learned APP 9 26 appa628.22.odt

submitted that there is ample evidence on record to

corroborate the testimony of the victim. Learned APP

submitted that on the basis of DNA report it has been

proved that blood of the victim was detected on the

underwear of the appellant. Learned APP submitted that

the blood was also detected on the clothes of the victim.

Learned APP submitted that there was no delay in lodging

the report. The medical examination of the victim revealed

that she had sustained laceration to her urethra. Learned

APP submitted that it is not the defence of the appellant

that due to previous enmity or for one or the other reason

he was falsely implicated. Learned APP submitted that

while considering the prayer made in this application,

gravity of the proved crime and the age of the victim on the

date of commission of a crime, cannot be overlooked.

15. Learned advocate appointed to represent

respondent no.2/victim reiterated the submissions advanced

by the learned APP.

16. It is to be noted that at the stage of deciding

the application for suspension of sentence, exercise of

threadbare analysis and re-appreciation of the evidence 10 26 appa628.22.odt

cannot be undertaken. At this stage, the Court has to look

into the material prima facie and form an opinion. It is also

to be noted that the evidence adduced by the prosecution

has been found cogent, concrete and reliable to prove the

guilt of the appellant.

17. We have perused the judgment and order

passed by the learned Special Judge. Learned Judge has

taken the entire evidence into consideration. The learned

Judge found the DNA report as a vital corroborative piece

of evidence to the testimony of the victim and other

witnesses. The contentions raised in the appeal challenging

correctness and legality of the impugned judgment and

order cannot be decided on merits at this stage. At the stage

of final hearing of the appeal, full fledged hearing would

take place. The Court would then do the threadbare

analysis and re-appreciation of the evidence to appreciate

the grounds of challenge to the impugned judgment and

order. It is to be noted that any observation touching the

merits one way or the other at this stage, in our opinion,

would be prejudicial either to the prosecution or to the

appellant.

11 26 appa628.22.odt

18. In our opinion, therefore, the submissions

advanced by the learned advocate, relying upon the

reported decisions do not deserve consideration. It is to be

noted that the victim, on the date of the crime, was 6½

years old. Undisputedly, there was no enmity between the

family of the victim and the appellant. The appellant in his

statement under Sec. 313 of the Cr.P.C. has not placed on

record any reason for his false implication. It is further

pertinent to note that the defence of false implication for

one reason or the other has not been put to the witnesses

examined by the prosecution and particularly, to the mother

of the victim. Learned Judge, as can be seen from the

reasoned judgment and order, has taken all relevant aspects

into consideration. The most vital corroborative evidence is

the DNA report. The DNA Expert has opined that mixed

DNA profile obtained from blood detected on Ex.6

(underwear of the accused) matched with DNA profile

obtained from Ex.1 blood stained cuttings of the half sleeve

T-shirt of the victim and prepared blood stain of the

appellant. Therefore, considering the age of the victim and

the gravity and seriousness of the proved offence against the

appellant, we do not think that this is a fit case to suspend

the sentence. The law laid down in the reported decisions 12 26 appa628.22.odt

relied upon by the learned advocate for the appellant at this

stage is of no help and assistance to the case of the

appellant.

19. It is to be noted that the appellant has been in

jail from the date of his arrest i.e. 13.03.2022. It is seen that

the trial was completed within a period of 1 month and 20

days from committal of the case to the Special Court. The

appeal has been admitted. After preparation of the paper

book, the appeal would be listed for final hearing. In order

to take care of the interest of the accused, we expedite the

hearing of appeal.

20. In view of the above, we conclude that no case

has been made out for suspension of sentence. The criminal

application, therefore, stands rejected.

                                  (G. A. SANAP)              (SANDEEP K. SHINDE)
                   Diwale




Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:23.12.2022
15:32