Bombay High Court
Ashok Ramesh Kadam vs State Of Maharashtra And Anr on 9 February, 2022
Bench: Prakash Deu Naik
9. Apeal-1022-2021-w-Ia-3073-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 3073 OF 2021
IN
CR. APPEAL NO. 1022 OF 2021
Ashok Ramesh Kadam ...Applicant/
Appellant
Versus
State Of Maharashtra And Anr. ...Respondent
....
Mr. Amol Mhatre a/w Mr. Sameer Mhatre, Advocate for the
Applicant/Appellant.
Mr. Dilip B. Shinde, Advocate for Respondent No.2.
Mr. Arfan Sait, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 9th FEBRUARY, 2022.
PER COURT:
1. This is an application for suspension of sentence
and grant of bail during the pendency of Criminal Appeal
No.1022 of 2021.
2. The applicant is convicted for offences under
Section 376 of Indian Penal Code (for short "IPC") and
Sections 3 & 4 of Protection of Children from Sexual Offences
Act, 2012 (for short 'POCSO Act'). He has been sentenced to
suffer rigorous imprisonment for a period of 10 years and to
pay fine of Rs.30,000/- for offences under Sections 376 of IPC
Digitally signed
SAJAKALI
by SAJAKALI
LIYAKAT Sajakali Jamadar 1 of 4
LIYAKAT JAMADAR
Date:
JAMADAR 2022.02.11
11:03:38 +0530
9. Apeal-1022-2021-w-Ia-3073-2021.doc
and seven years for offence under Section 3 punishable under
Section 4 of the POCSO Act with fine of Rs.20,000/-.
3. The appeal challenging the judgment of conviction
has been admitted by this Court.
4. Learned Advocate for the applicant submitted
that the applicant is in custody for a period of about 4 years.
Initially the applicant was granted bail and thereafter he was
taken in custody. The victim and her relatives has not
supported the prosecution case. The victim was declared
hostile and cross examined by the prosecution. In the cross
examination nothing incriminating could be elicited from the
victim. After the victim had attained the age of majority,
marriage has been performed between her and applicant.
5. Learned APP submitted that there is sufficient
evidence against the applicant. At the time of incident, the
victim was minor. Thus, the victim was minor. The DNA
report supports the prosecution case. Marriage between the
victim and the applicant is of no consequence. Although the
victim was declared hostile, the DNA report indicate that
there was physical relationship between the applicant and
the victim. The First Information Report was lodged when
the victim was aged about 17 years and 4 months. Learned
Sajakali Jamadar 2 of 4
9. Apeal-1022-2021-w-Ia-3073-2021.doc
APP relied upon the Apex Court judgment in the case of State
of Madhya Pradesh V/s. Madanlal (2015) 7 SCC 681 and
submitted that the offence under Section 376 of IPC is serious
and the marriage between victim and the accused cannot be
considered for setting aside the conviction.
6. Learned counsel for the respondent No.2
submitted that the victim has no objection for suspending the
sentence and grant of bail. The victim and the applicant had
performed the marriage when the victim was major. She is
residing in the house of applicant.
7. On perusal of the evidence it is apparent that the
victim and her mother had not supported the prosecution
case. They were declared hostile. It is pertinent to note that
the applicant is in custody for a period of 4 years. Considering
the factual aspects and without going into the issue relating
to the marriage between the parties sentence of
imprisonment can be suspended.
8. Hence, I pass the following order:
ORDER
i. Interim Application No. 3073 of 2021 is allowed;
Sajakali Jamadar 3 of 4
9. Apeal-1022-2021-w-Ia-3073-2021.doc
ii. During the pendency of Criminal Appeal No.1022
of 2021, the sentence of imprisonment imposed vide
Judgment and order dated 19 th January, 2021 passed by
learned Additional Sessions Judge, Pune in Special Case
Child Prot. No. 131 of 2016 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;
iii. The applicant is permitted to furnish cash bail in
the sum of Rs.20,000/- for a period of eight 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
