Pankaj Arjunbhai Koli vs The State Of Maharashtra And Anr
2022 Latest Caselaw 1878 Bom

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                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                              CRIMINAL APPELLATE JURISDICTION

                                             INTERIM APPLICATION NO.3086 OF 2021
                                                             IN
                                               CRIMINAL APPEAL NO.842 OF 2021

                               Pankaj Arjunbhai Koli                                   Applicant
                                     versus
                               The State of Maharashtra and another                    Respondents

                               Mr.Abhishek Mishra, Advocate for applicant.
                               Mr.U.L.Singh, Advocate for respondent no.2.
                               Mr.S.V.Gavand, APP, for State.

                                                          CORAM :    PRAKASH D. NAIK, J.

DATE : 24th February 2022 PC :

1. This is an application for suspension of sentence and grant of bail during pendency of Criminal Appeal No.842 of 2021.

2. The applicant has been convicted vide judgment and order dated 17th September 2021 by Special Judge for POCSO, Greater Bombay in POCSO Special Case No.263 of 2015 for the offences under Section 376(2)(n) of Indian Penal Code and sentenced to suffer rigorous imprisonment for fifteen years and pay fine of Rs.30,000/-. He is also convicted for the offence u/s.506(II) of IPC and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.10,000/-.

Digitally signed by MANISH

3. The case of prosecution is that the accused was working as MANISH SURESH SURESH THATTE Date: 2022.02.26 THATTE 16:15:20 +0530

sweeper in the school. The victim was a student of the school. She was subjected to sexual assault by the accused. The complaint was 2 of 6 5.IA.3086.2021.doc

lodged by the aunt of victim. On completing investigation charge sheet was filed.

4. The appeal preferred by the applicant has been admitted by this Court and the same is pending in this Court.

5. Learned counsel for applicant submitted that the applicant has been falsely implicated in this case. The applicant was on bail during trial. The facility of bail has not been misused. There has been delay in lodging the FIR. It was alleged that there was sexual assault on 3 to 4 occasions prior to the incident. However, the complaint was not lodged. The medical evidence does not support prosecution case. The Chemical Analyzer report does not corroborate the case of prosecution. The alleged incident had occurred in the school and it is difficult to believe that such incident could happen in the premises of school since there are several other students and staff is available in the school. Here was no cry or shout by the victim. There is discrepancy in the birth certificate of the victim. There is motive to falsely implicate the applicant in the rime. False case has been registered at the instance of one Nasir Khan, who was interested in vacating the school. The complainant is working as Estate Agent. The applicant had supported the school. The victim was tutored. There are improvements in the versions of witnesses. The Chemical analyzer report does not indicate presence of semen. The applicant had volunteered for narco test to find out the truth. The test was not conducted. The evidence of witnesses suffer from several discrepancies.

6. Learned APP submitted that the victim was minor. There is no reason to discard the evidence of victim. Specific overt act has been 3 of 6 5.IA.3086.2021.doc

attributed to the accused. The medical evidence corroborates the prosecution case. The evidence of witnesses examined during trial supports the prosecution case. The applicant is involved in serious offence. Charge has been proved against him. There is no reason to disbelieve the versions of witnesses. The offence under Section 376(2)(n) of IPC is clearly made out in the present case.

7. Learned counsel for the complainant-respondent no.2 has supported the submissions of learned APP. It is submitted that the victim was sexually assaulted by the accused on several occasions. Evidence of the victim supports prosecution case. There is no reason to disbelieve her version. The charge against accused has been established by evidence adduced during trial. The applicant has committed serious offence. The medical evidence supports the prosecution case. Hence, the sentence of imprisonment may not be suspended.

8. The incident in question had occurred in 2015. The applicant was on bail during trial. There is no adverse report that the applicant has misused the facility of bail at any point of time. The defense has urged that there are several discrepancies in the evidence. The FIR was lodged by the aunt of the victim (PW-1). She is working as an Estate Agent. According to the said witness, she had noticed swelling on the body of victim. It appears from the evidence that the victim did not disclose the sexual assault immediately to the complainant. It is alleged that she was subjected to sexual assault for about one month. The complainant had allegedly visited J.J.Hospital, however, the FIR was not registered. The victim did not disclose the incident to the complainant on 20 th March 2015. Even 4 of 6 5.IA.3086.2021.doc

when they visited J.J.Hospital Police Station, the victim did not disclose the incident of sexual assault. The accused is allegedly working as sweeper in the school. The victim had disclosed that she had suffered injuries during scuffle. The name of the accused was disclosed after returning from police station. The visit to Police Station was for the first time on 13th March 2015. The FIR was lodged on 25th March 2015. PW-1 has admitted that she knows Nasir Pathan. There was an attempt by him to remove the school. PW-2 is the victim. At the time of recording evidence, her age was around 14 years. The complainant had made enquiry with her on account of finger marks on her hands. The victim had stated that accused used to call her before subjecting her to sexual assault in the school premises. Several friends in the school did not notice the accused calling her. For a period of one month, the incident was not disclosed to anyone. PW-3 is the member of Mahila Dakshata Samiti. PW-4 is social worker. PW-5 is medical officer who has examined the accused as well as the victim. She has deposed that she had examined the victim on 26th March 2015. She had examined the injuries sustained by her. History was recorded by another medical officer. During general examination no fresh injuries were found. Local examination found redness and edema near genitals. Provisional opinion about sexual violations was given stating that it cannot be ruled out. The report was taken on record. No other opinion was expressed by the medical officer about injuries and the cause of injuries. PW-6 is the Police Sub Inspector. He has admitted that the complainant had visited police station prior to one day of FIR. He could not explain as to why the FIR was not registered on the same day. He did not make enquiry with the complainant as to what had happened on the previous day. He could not assign any 5 of 6 5.IA.3086.2021.doc

reason why he could not make enquiry about the visit of complainant and victim in the station diary. The evidence discloses that the incident was not reported to the complainant or any other person. The complainant had visited police station prior to registration of FIR. However, the complaint was not registered. PW-7 is Police Inspector attached to the concerned police station. The witness has admitted that investigation was handed over to him. The accused was brought to police station by mob along with complainant. The mob had visited police station for filing complaint. The social workers and female members were amongst mob. After the mob came to police station, enquiry was made with the complainant, mob and the accused. Thereafter the accused was arrested. It is apparent that although the complainant and victim had visited police station, FIR was not registered. Subsequently after the visit of mob, the FIR is registered.

9. The appellant-applicant has urged several discrepancies in the evidence. The applicant was on bail during trial. There is no adverse report about misuse of bail. Considering these circumstances, suspension of sentence can be granted. Hence, I pass following order :

ORDER

(i) Interim application is allowed and disposed of;

(ii) The sentence of imprisonment imposed vide judgment and order dated 17th September 2021 by Special Judge for POCSO, Greater Bombay in POCSO Special Case No.263 of 2015 is suspended and the applicant is directed to be released on bail on executing PR bond in the sum of Rs.25,000/- with one or more sureties in the like amount;

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(iii) The applicant is permitted to furnish cash bail in the sum of Rs.25,000/- for eight weeks in lieu of sureties;

(iv) The applicant shall attend Trial Court once in six months on First Saturday of the month till disposal of the Criminal Appeal;

(v) In the event there are two consecutive defaults in attending the Trial Court, the Trial Court shall submit report to this Court;

(vi) In the event of default committed by the applicant in attending the Trial Court, the prosecution will be at liberty to prefer application for cancellation of bail.

(PRAKASH D. NAIK, J.) MST