Bombay High Court
Roshan S/O Khemraj Mohatkar vs State Of Mah. Thr. Pso Ps Kelwad ... on 12 July, 2022
Bench: Avinash G. Gharote
(1) 13apeal392.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 392 OF 2022
Roshan Khemraj Mohatkar Vs. State of Maharashtra and anr
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. H.S.Chavhan, Advocate for the appellant
Mrs. Mayuri Deshmukh, APP for respondent No.1/State
Mrs. D.I.Charlewar, Advocate assisting prosecution for respondent No.2
CORAM : AVINASH G. GHAROTE, J.
DATE : 12/07/2022
1] Heard Mr. Chavhan, learned counsel for the
applicant, Mrs. Deshmukh, learned APP for State and
Mrs. Charlewar, learned counsel for Respondent No.2,
assisting the prosecution.
2] The impugned judgment convicts the
appellant for the offence under Section 5(m) punishable
under Section 6 of the POCSO Act and sentences him for
a period of 10 years and a fine of Rs.1,000, in default R.I.
for 2 months and also convicts him for the offence under
Section /s 363 of the IPC for 3 years RI and fine of
Rs.500/- in default, S.I for one month.
3] Admit.
4] R&P has already been received.
5] Learned APP waives service of notice for
Respondent No.1/State and Mrs. Charlewar, learned
counsel waives service of notice for Respondent No.2.
(2) 13apeal392.22
Criminal Application (APPA) No. 478/2022
6] Cri. Application (APPA) No. 478/2022 seeks
suspension of sentence and release of the appellant on bail.
7] Mr. Chavhan, learned counsel for the
applicant/appellant submits that the maximum sentence
imposed on the appellant is for a period of 10 years, out of
which, since the appellate was arrested on 14.12.2017 and is
still behind bars, he has already undergone 4½ years of
incarceration. Inviting my attention to the evidence of PW-1,
the victim and the medical certificate at Exh.13, he submits
that it indicates that there are no injuries of any nature
whatsoever indicating any penetrative sexual assault upon the
victim. The hymen is intact, there is no tear as per the medical
report, neither is there any injury on any part of the private
organ of the victim. It is therefore contended that the finding
rendered by the learned Sessions Court regarding penetrative
sexual assault, cannot be sustained.
8] Mrs. Deshmukh, learned APP as well as
Mrs.Charlewar, learned counsel for respondent No.2 oppose
the application and contend that the evidence of PW-1 who is
the victim is sufficient to sustain the conviction and the
application therefore needs to be rejected.
9] I have perused the medical report at Exh. 13,
which indicates that there is no injury sustained by the victim.
The incident is dated 14.12.2017. The examination by the
Doctor is on the same date. The absence of any injury of any
nature whatsoever, upon the body of the victim, as well as the
finding that the hymen is intact, there is no perennial tear, as
(3) 13apeal392.22
indicated from Exh.13, would prima facie indicate non
satisfaction of the requirement of penetrative sexual assault.
The appellant has already been incarcerated for a period of
4½ years, which is more than 1/3rd of the sentence imposed
upon him. Considering the nature of the medical evidence, a
case for suspension of sentence and bail is made out.
a] Cri. Application (APPA) No. 478/2022 is
accordingly allowed. The sentence imposed upon the
applicant/appellant is hereby suspended. The applicant be
released on bail on furnishing PR bond in the sum of
Rs.50,000/- with two solvent sureties of the like amount.
b] The appellant during the pendency of appeal shall
not reside within the territorial jurisdiction of Police Station
Kelwad and shall at all time keep the Police Station Kelwad
informed about his place of residence as well as mobile
number upon which he can be contracted. Any violation shall
result in cancellation of bail.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:12.07.2022 17:59
