Bombay High Court
Ajay Kamalakar Waghmare vs The State Of Maharashtra And Anr on 5 January, 2022
Bench: Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2068 OF 2021
IN
CRIMINAL APPEAL NO.685 OF 2021
Ajay Kamlakar Waghmare Applicant
versus
The State of Maharashtra and another Respondents
Ms.Savita Yadav, Advocate for applicant.
Mr.Tanveer Khan, Advocate for Respondent no.2.
Mr.S.H.Yadav, APP, for State.
CORAM : PRAKASH D. NAIK, J.
DATE : 5th January 2022
PC :
1. This is an application for suspension of sentence and grant of
bail. The applicant is convicted for the offence under Section 376(2)
(i) and (n) of Indian Penal Code and sentenced to suffer rigorous
imprisonment for ten years and to pay fine of Rs.5,000/-. He is also
convicted for the offences under Sections 3,4,6 and 8 of Protection of
Children from Sexual Offences Act, 2012 (`POCSO Act'). No
separate sentence has been awarded under POCSO Act. The
applicant is acquitted for the offence u/s.366 of IPC.
2. The case of prosecution is that the victim was kidnapped by
the accused on 31st May 2019 and she was repeatedly subjected to
sexual assault. The prosecution examined about seven witnesses. It
is alleged that the victim was about 15 years and 10 months at the
time of incident.
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3. Learned counsel for applicant submitted that the evidence of
victim indicate that she was in live with the accused. The
relationship was consensual. She was tutored by her family to make
statement against accused. At the instance of her family she gave her
date of birth. It is further submitted that there is serious doubt about
proof of birth. The Investigating Officer has placed on record the
birth certificate without disclosing the source of document. The birth
certificate indicate that birth was registered immediately on the next
date, whereas the evidence of the mother of the victim discloses that
she is not aware about the date of birth of the victim. She has
deposed that birth was not registered immediately. The radiological
report indicate that the age of the victim could be up to 17 years.
The benefit of doubt must be given to the accused. He is in jail for
about two and half years.
4. Learned APP submitted that assuming that the deposition of
the victim to be true, the fact remains that the victim was minor at
the time of incident and her consent, if any, is immaterial. Birth
certificate is produced by the Investigating Officer and there is no
reason to disbelieve the same.
5. Learned counsel appointed to represent the complainant-
victim submitted that the date of birth has been established through
the birth certificate. The document has been proved by following
principles of law of evidence. The victim was minor at time time of
incident. The consent, if any, is of no consequence. There is every
likelihood that appeal of the applicant-appellant would be dismissed.
There is sufficient evidence to prove the charge against applicant.
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Hence, this application for suspension of sentence and grant of bail
may be rejected.
6. It appears that the applicant was aged about 22 years at the
time of incident. From the evidence of prosecutrix it can be seen that
she was in love with the applicant. There was consequential physical
relationship at various places. Her family had fixed her marriage and
one boy had come to see her. She left the house and went to Alibag
and then at Pen. She met the accused and thereafter they went to
house of the relative of accused. They stayed together for a long
period of time. In the cross-examination she has stated that her
mother and police had tutored her to give the statement. I have also
perused the evidence of victim's mother and other witnesses. The
radiology report indicate that the age of victim could be between 15
to 17 years. The appeal preferred by the applicant stands admitted.
The applicant has raised serious doubt about the date of birth of the
victim. The issue will have to be dealt with at the final hearing of
the appeal. Prime facie, on the basis of submissions of learned
counsel for applicant, ground is made out for suspension of sentence.
The applicant is in custody for a period of about two and half years.
There are no criminal antecedents against him.
7. Hence, I pass following order :
ORDER
(i) Interim Application is allowed and disposed of;
(ii) During pendency of Criminal Appeal No.685 of 2021, the
sentence of imprisonment imposed against applicant vide judgment
and order dated 14th August 2020 passed by Special Judge, Raigad,
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at Alibag in Special Case No.53 of 2020, is suspended and the
applicant is directed to be released on bail on executing PR 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 sureties.
(PRAKASH D. NAIK, J.)
MST
