Bombay High Court
Ishwar Sanappa Gauda vs The State Of Maharashtra And Anr on 3 February, 2022
Bench: Prakash Deu Naik
24. Ia-2413-2021-in-Apeal-829-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2413 OF 2021
IN
CRIMINAL APPEAL NO.829 OF 2021
Ishwar Sanappa Gauda ...Applicant/
Appellant
Versus
State of Maharashtra & Anr. ...Respondents
....
Mr. Prabhanjay R. Dave, Advocate for the Applicant/Appellant.
Mr. Sushan Mhatre, Advocate for Respondent No.2.
Mr. H. J. Dedhia, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 3rd FEBRUARY, 2022.
PER COURT:
1. This is an application for suspension of sentence
and grant of bail during the pendency of criminal Appeal
No.829 of 2021. The applicant is convicted for the offence
under Section 10 of the Protection of Children from Sexual
Offences Act, 2012 (for short 'POCSO Act') and sentenced to
suffer rigorous imprisonment for 5 years and to pay fine of
Rs.7,000/-. He is also convicted for offences under Sections
354 of Indian Penal Code and Section 363 of IPC and
sentenced to suffer rigorous imprisonment for one year on
each count.
Digitally signed
by SAJAKALI
SAJAKALI LIYAKAT
JAMADAR
LIYAKAT Date: Sajakali Jamadar 1 of 4
JAMADAR 2022.02.03
18:15:16
+0530
24. Ia-2413-2021-in-Apeal-829-2021.doc
2. The case of the prosecution is that the victim was
sleeping with the parents on the footpath. Accused took the
victim and outraged her modesty.
3. During the trial, the victim and her mother did
not support the prosecution case and they were declared
hostile.
4. Learned Advocate for the applicant submits that
there is no substantive evidence to prove the charges against
the applicant. The victim and her mother has not supported
the prosecution case. The C.C.T.V. footage is of no assistance
to the prosecution. The applicant was on bail during the trial.
He has not misused the facility of bail. He was in custody for a
period of three months prior to grant of bail and he is now in
custody from 25th August, 2021.
5. Learned APP submitted that C.C.T.V. footage
shows that the accused had picked up the victim. The trial
Court has relied upon the said evidence and the other
circumstances to convict the applicant.
6. Learned counsel for respondent No.2 submits that
the C.C.T.V. footage establishes that the victim was sleeping
and at that time the accused had picked up her and taken
towards place of offence. The presumption under Section 29
Sajakali Jamadar 2 of 4
24. Ia-2413-2021-in-Apeal-829-2021.doc
of the POCSO Act, has been invoked by the trial Court for
convicting the applicant.
7. It is noted that the applicant was on bail during
the trial. There is no report that the applicant has misused
the facility of bail. From the date of conviction, the applicant
is in custody. The victim and the mother of victim has not
supported the prosecution case. They were declared hostile.
Considering the aforesaid aspects and the fact that the
sentence of imprisonment is of short term, and appeal may
not come up for hearing immediately, the sentence of
imprisonment can be suspended.
8. Hence, I pass the following order:
ORDER
i. Interim Application No. 2413 of 2021 is allowed;
ii. During the pendency of Criminal Appeal No.829 of
2021, the sentence of imprisonment imposed vide
Judgment and order dated 25th August, 2021 passed by
learned Special Judge under POCSO Act, Gr. Mumbai in
POCSO Special Case No.465 of 2018 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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24. Ia-2413-2021-in-Apeal-829-2021.doc
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 default 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. Interim Application stands disposed of
accordingly.
(PRAKASH D. NAIK, J.)
Sajakali Jamadar 4 of 4
