Bombay High Court

Umya @ Umesh Pandurang Koli vs The State Of Maharashtra And Anr on 1 February, 2022

Bench: Prakash Deu Naik

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                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION


                                     INTERIM APPLICATION NO.3033 OF 2021
                                                     IN
                                       CRIMINAL APPEAL NO.941 OF 2019


                        Umya @ Umesh Pandurang Koli               .. Applicant/ Appellant
                              Versus
                        State of Maharashtramand Arn.             .. Respondents

                                                        ......
                        Ms.Gulestan M. Dubash, Advocate for the Applicant/Appellant.
                        Mr.S.H. Yadav, APP for the Respondent - State.
                        Mr.Pradeep Jain, Advocate for Respondent No.2.
                                                        ......

                                                      CORAM :     PRAKASH D. NAIK, J.

                                                      DATED :     FEBRUARY 01, 2022.

                        P.C. :

This is an application for suspension of sentence and

grant of bail during the pendency of Criminal Appeal No.941 of 2019,

challenging the judgment and order dated 18 th June, 2019, passed by

the Special Judge Raigad-Alibag in Special (POCSO) Case No.27 of

2016.

2 The applicant is convicted for the offence punishable

under Section 376(2)(n) of Indian Penal Code ("IPC", for short) and Digitally

Sections 4 and 6 of Protection of Children from Sexual Offences Act signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER AHER Date:

2022.02.03 13:36:10 +0530 rpa 2/8 1 ia 3033 2021.doc

("POCSO Act", for short). He has been sentenced for imprisonment of

ten years.

3 The prosecution case is that the victim was aged about 17

years and eight months at the time of the incident. She was

acquainted with the accused. They had exchanged their phone

numbers. There was conversation between them on phone. They had

developed friendship. In October 2014, the victim was taken in some

premises and subjected to sexual assault. Thereafter, again there was

sexual relationship between them. On account of repeated sexual

relationship, the victim had conceived. Thereafter, she requested the

accused to marry her. The accused disclosed that he is already

married. The victim thereafter delivered the child. Offence was

registered vide C.R.No.144 of 2015. Investigation proceeded. The

medical examination of the victim was conducted. Statements of

witnesses were recorded. D.N.A. Test was conducted. On completing

investigation, charge-sheet was fled.

4 The evidence of the witnesses was recorded. The

statement of the accused was recorded under Section 313 of Cr.P.C.

The defence of the accused was that the relationship between the

accused and the victim was consensual. The victim was more than 18

years of age.

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5                 This is a second application for suspension of sentence.

The previous application was dismissed, as not pressed. The hearing

of the Appeal was expedited.

6 Learned advocate for the applicant submitted that

although the previous application was not pressed, the Appeal could

not be heard. After disposal of the previous application, the applicant

had continued to be in custody for more than two years. The applicant

has undergone custody of around 2 and ½ years. The evidence of the

victim discloses that the relationship was consensual. There was

friendly relationship between the victim and the accused. The FIR was

not lodged immediately after the incident. The age of the victim was

not proved. She was more than 18 years. The evidence relating to

proof of age adduced by the prosecution suffers from serious

discrepancies. Considering these circumstances, the applicant need

not be kept in custody. He was on bail during the trial. There was no

misuse of facility of bail granted to the applicant. Learned advocate

relied upon the decision of the Apex Court in the case of Sunil Kumar

Vs. Bipin Kumar and Ors.1, and submitted that in the said decision, it

was observed that the Appeal preferred by the accused is pending in

the High Court. The accused was on bail during the trial, and, there

was no misuse of liberty. Learned counsel also relied upon another

1 (2014) 8 SCC 868 rpa 4/8 1 ia 3033 2021.doc

decision in the case of Babu Singh and Ors. Vs. State of Uttar Pradesh 2,

and, submitted that in the said decision the Court had considered that

the accused cannot be kept in prolonged custody.

7 Learned APP submitted that the victim was minor at the

time of incident. Consent is immaterial. The victim was subjected to

sexual assault by the accused. He was a married person. There is

suffcient evidence against the accused. The evidence brought on

record during the trial establishes that the victim was minor at the

time of incident.

8 Learned advocate for respondent no.2, on instructions,

submitted that the respondent no.2 has no objection for suspending

the sentence of imprisonment. Respondent no.2 has delivered the

child. Applicant accused is the father of the child. The accused has

assured that he would look-after the child and the victim. Statement of

the victim was recorded by the police on 12 th January, 2022. It is

submitted that statement of wife of the applicant is recorded by the

police on 12th January, 2022, corroborating the version of the victim.

9 Vide order dated 11th October, 2019, the previous

application preferred by the applicant was disposed of. The contents of

2 1978 SCC Online Mad 406 rpa 5/8 1 ia 3033 2021.doc

the order indicate that the advocate representing the applicant had

submitted that if Appeal is expedited, the application would not be

pressed. The Court noted factual aspects of the matter and

considering the facts, it was observed that Appeal is liable to be heard

expeditiously. The application was disposed of, as not pressed. The

Appeal was directed to be heard in January 2021. However, since last

more than a year, the Appeal could not be heard.

10 The applicant is in jail for a period of about 2 and ½

years. During the pendency of trial, he was on bail. It is not reported

that the applicant has misused the liberty. I have perused the

evidence of P.W.1. The victim was stated that she had acquainted with

the accused. They became close friends. She accompanied the accused

to the premises where there was sexual relationship between them.

Other incident had occurred in October 2014. Again there were

incidents of physical relationship. She was pregnant. The accused told

her that he is already married person. She delivered the child. The

evidence of the victim does not disclose that she was subjected to

forcible physical relationship by the accused. She further stated that

she had given the documents to police regarding her date of birth. She

has stated that her age was 17 years and 8 months. On the basis of

birth certifcate, she had obtained Aadhar Card. The investigating rpa 6/8 1 ia 3033 2021.doc

offcer (P.W.3) has deposed that she had not seen the bonafde

certifcate of the victim when the offence was registered. There is

inconsistency in the date of birth of the victim in the school leaving

certifcate and the Aadhar Card. She has not produced the original

school leaving certifcate or the Aadhar Card. She has not obtained the

school leaving certifcate from the school during the investigation. She

has not obtained any documents showing her age during the

investigation. Trial Court had observed that what can be gathered

from the entire evidence reproduced that the sexual relationship

between the applicant and the victim were consensual. The victim has

nowhere stated in her examination-in-chief that the relationship was

forcible. The fact that the accused and the victim had repeated sexual

relationship and that it was consensual, has been established.

11 Thus, the fnding of the trial Court was that the

relationship was consensual. The other question for consideration is

about the age of victim. The defence has urged that there are

discrepancies regarding the evidence adduced in respect of age of the

victim. Taking into consideration, the evidence on record, the fact that

the applicant was on bail during the trial, and, that he has been in

custody for 2 and ½ years, the sentence of imprisonment can be

suspended.

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12            Hence, I pass the following order:


                               :: O R D E R ::


  (i)    Interim Application No.3033 of 2021, is allowed;

(ii) During the pendency of Criminal Appeal No.941 of 2019,

the sentence of imprisonment imposed vide judgment and

order dated 18th June, 2019, passed by Additional Sessions

Judge Raigad-Alibag in Special Case (POCSO) No.27 of

2016, is suspended and the applicant/appellant 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) Applicant/appellant is permitted to furnish cash bail

security of Rs.25,000/-, for a period of eight weeks, in lieu of

surety;

(iv) Applicant/appellant shall attend the trial Court once in six

months on frst Saturday of the month between 11:00 a.m.