Narbahadur Kalesingh Damai @ ... vs The State Of Maharashtra And Anr
2022 Latest Caselaw 379 Bom

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                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                           INTERIM APPLICATION NO. 1024 OF 2021
                                                           IN
                                              CRIMINAL APPEAL NO.34 OF 2021

                        Narbahadur Kalesingh Damai @ Ramsing                           ...Applicant/
                                                                                       Appellant
                                     Versus
                        State of Maharashtra & Anr.                                    ...Respondents

                        Ms. Anjali Patil, Advocate for the Applicant/Appellant.
                        Mr. S. H. Yadav, APP for the Respondent No.1 - State.
                        Ms. Manisha Deokar, Advocate for Respondent No.2.



                                                 CORAM      :        PRAKASH D. NAIK, J.

                                                 DATE       :        11th JANUARY, 2022

                        PER COURT:

1. This is an application for suspension of sentence

and grant of bail during the pendency of Criminal Appeal

No.34 of 2021 preferred by the applicant challenging the

judgment and order dated 24th November, 2020 passed by the

learned Special Judge under the POCSO Act, convicting the

applicant for offence under Section 376(2)(i)of Indian Penal

Code (for short "IPC") and Section 8 of the Protection of

Children from Sexual Offences Act, 2012 (for short 'POCSO

Act').

2. The case of the prosecution is that the victim is

Digitally signed by SAJAKALI SAJAKALI LIYAKAT LIYAKAT JAMADAR Sajakali Jamadar 1 of 7 JAMADAR Date:

2022.01.12 15:02:38 +0530

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minor girl aged about 12 years at the time of of incident. On

6th July, 2017, the relative of the complainant had expired and

the post funeral rites were to be performed on 12 th July, 2017.

The victim and her father had attended the said rites. They

returned home. The victim was found in disturbed state of

mind. The complainant made inquiry with her. The victim

had disclosed to her mother that the accused had sexually

assaulted her by putting finger in her private part. The First

Information Report (for short 'FIR') was registered. The

victim was taken for medical examination. The accused was

arrested. The statements of the victim was recorded under

Sections 161 and 164 of Cr.P.C. On completing investigation,

charge-sheet was filed.

3. The trial proceeded. The prosecution examined

about 8 witnesses. The applicant was convicted for the

aforesaid offences. He was sentenced to undergo rigorous

imprisonment for 15 years and 5 years respectively on both

the counts. The sentences were directed to run concurrently.

4. Learned Advocate for the applicant submitted

that there is no evidence to convict the applicant for the

aforesaid offences. There is variation in statements of the

victim recorded under Sections 161 and 164 of Cr.P.C. The

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medical evidence does not support the prosecution case. The

identity of the applicant/accused is under the clouds of

suspicion. It was not possible to commit such an act at the

residential premises, where several other persons were

present for attending the post funeral rites. The name of the

accused was disclosed by the cousin of the victim. There was

no proper identification of the accused. No parade was

conducted. The applicant was on bail during the pendency of

trial. He has not misused the facility of bail. The applicant is

in custody from 24th November, 2020. The appeal may not

come up for hearing within short span of time. Hence,

sentence of imprisonment may be suspended and the

applicant be directed to be released on bail.

5. Learned APP submitted that the victim was

minor. There is no reason to disbelieve her version. Victim

was subjected to sexual assault by the accused. The offence is

proved beyond doubt. The victim and the complainant had

supported the prosecution case.

6. Learned Advocate representing the respondent

No.2 submitted that there is sufficient evidence against the

applicant. The victim had no reason to falsely implicate the

applicant. She was minor. Small infirmities in the evidence

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does not affect the prosecution case. The presumption under

the POCSO Act supports the case of the prosecution. The

offence is of serious nature.

7. During the pendency of trial, this Court had

granted bail to the applicant/accused by order dated

18th June, 2018, on the ground that there is variation in the

statements under Sections 161 and 164 of Cr.P.C. The

Medical Officer had opined that there was no evidence of

sexual and physical violence. Prima facie it appears that the

victim was either tutored or tampered by the near relatives.

The accused was in custody since 14 th July, 2017. Bail was

granted on certain conditions. It is not reported that the

accused had misused the facility of bail granted to him in any

manner.

8. I have perused the notes of evidence. The victim

has been examined as PW-1. The victim and her father had

attended post funeral rites at the premises of their relative.

The accused was allegedly present at the said place. The

victim was not knowing the accused. The incident had

occurred on 12th July, 2017. The victim had disclosed to her

mother that the accused had sexually assaulted her by

putting finger in her private part in the house of relative.

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She was referred for medical examination. Statement of the

victim was recorded under Section 161 of Cr.P.C. The

complaint was lodged by the mother of the victim. The

evidence of these witnesses disclosed that there are houses

adjoining to the place, where the victim and her father had

visited for attending the post funeral rites. The evidence also

disclosed that there are other family members in the house.

In the subsequent statement recorded under Section 164 of

Cr.P.C. the victim had alleged that there was sexual

intercourse. In her cross examination however she stated

that there was no physical relationship by the accused with

her. She also stated that after the incident, she visited her

school in routine manner on 13th July, 2017. The police

recorded the statement as per the information provided by

her mother. She was not knowing the contents of the

statement. Thus, there is variation in statement under

Section 164 where it is alleged that she was forcibly sexually

assaulted by the accused. The victim also admitted that the

name of the accused was disclosed to her by her cousin. She

had disclosed to Police that she came to know the name of the

accused from her cousin Anil. She was not knowing his name.

Thus, the victim was not knowing name of applicnat. The

identity of the accused is thus under the clouds of suspicion.

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The evidence of PW-2 (mother of victim) mention that the

police did not record her statement. Anil disclosed the

incident to the Police. She has not made complaint to the

police. She do not know what is written in the complaint. PW-

5 is the Medical Officer, who had examined the victim. The

said witness have stated that she conducted general

examination of the victim. It was found normal. Local

examination was also normal. After examination she gave

opinion that there was no evidence of physical sexual

violence. However, she has stated that sexual physical

violence cannot be ruled out. The medical report has been

adduced in evidence. The defence had harped upon the fact

that there were no injuries of whatsoever nature to

corroborate the prosecution case.

9. All these factors will have to be considered at the

stage of final hearing. Prima facie on the basis of the

infirmities as stated above and also considering the fact that

the applicant/accused was on bail during the trial, case for

suspension of sentence is made out.

10. Hence, I pass the following order:

ORDER

i. Interim Application No.1024 of 2021 is allowed;

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ii. During the pendency of Criminal Appeal No. 34 of

2021, the sentence of imprisonment imposed vide

judgment and order dated 24th November, 2020 passed

by learned Special Judge, under the POCSO Act, at

Greater Bombay, in POCSO Special Case No. 430 of 2017,

awarded on both the counts is suspended and the

applicant 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. The applicant is permitted to furnish cash bail in

the sum of Rs.25,000/- 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 months between

11.00 a.m. to 1.00 p.m.

v. In the event, there are two consecutive defaults in

attending the trial Court, the said fact may be brought to

the notice of this Court.

vi. Interim Application stands disposed of

accordingly.

                                            (PRAKASH D. NAIK, J.)




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