Bombay High Court
Rahul Baban Farade vs The State Of Maharashtra And Anr on 25 July, 2022
Bench: Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1988 OF 2018
WITH
CRIMINAL APPLICATION NO.1987 OF 2018
IN
CRIMINAL APPEAL NO.1476 OF 2018
WITH
WRIT PETITION NO.5131 OF 2018
Rahul Baban Farade Applicant
versus
The State of Maharashtra and another Respondents
Mr.Shailesh Kharat, Advocate for appellant in Appeal No.1476/2018.
Mr.Ajinkya Udane, Advocate for respondent no.2.
Mr.S.R.Agarkar, APP, for State.
Mr.Akkshay H. Kumar i/byMr.abhishek Anchact for petitioner in Writ
Petition.
CORAM : PRAKASH D. NAIK, J.
DATE : 25th July 2022
PC :
1. These are the applications for suspension of sentence and
grant of bail during pendency of Criminal Appeal No.1476 of 2018.
In view of administrative order, this appeal has been listed before
this Court.
Digitally signed by
MANISH
2. The applicant-appellant has been convicted for the offence
MANISH SURESH
SURESH THATTE
Date: 2022.07.27
THATTE 11:27:38 +0530
u/s.5(n)(m) punishable u/s.6 of Protection of Children from Sexual
Offences Act, 2012 (`POCSO Act') and sentenced to suffer
imprisonment of 10 years. He is also convicted for the offence u/s.3
r/w 4 of POCSO Act, Section 7 r/w 8 of POCSO Act, Section 11 r/w
12 of POCSO Act and Section 376(1), 376(2)(i)(f), 354A of IPC. All
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the sentences were directed to run concurrently. The maximum
sentence of imprisonment imposed by Trial Court was for a period of
ten years. Other sentences imposed under POCSO Act are lesser
than ten years. No separate separate sentence is directed for offence
u/s.376(1), 376(2)(i)(f), 354A of IPC.
3. Learned advocate for applicant submits that applicant was
arrested on 4th May 2017. He is in custody for 5 years and 2 months.
Initially offences were registered u/s.354A of IPC and Section 12 of
POCSO Act. During the course of investigation the Investigating
Officer had recorded statement of victim u/s.164 of Cr.P.C. The said
statement does not refer to penetrative sexual assault. However, in
the evidence, the victim had referred to the alleged act of fingering
the private part, which amount to penetrative sexual assault. There
is improvement in her evidence. If the case is proved, the appellant
at the most could have been punished for the offense u/s.354 IPC
and sexual assault. There is no independent evidence. The victim
had referred to the fact that she met a lady after the incident. The
said lady was not summoned but appeared before the Court and gave
her evidence.
4. Learned APP submitted that applicant has been convicted for
the offences under POCSO Act and IPC. The omissions appearing in
the version of victim were not proved. The substantive evidence
before the Court will have to be considered. The Trial Court had
directed action against Investigating Officer and Medical Officer.
5. Learned advocate for respondent no.2 victim submitted that
there was inaction on the part of Investigating Officer and Medical
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Officer. There has been delay in recording the FIR. The victim was
not medically examined. Considering the lapses on the part of
Investigating Officer and Medical Officer, the Trial Court had directed
action to be taken against them. There is sufficient evidence on
record to show that victim was subjected to penetrative sexual
assault.
6. The FIR was registered alleging molestation and sexual
assault. The statement of victim was recorded u/s.161 and 164 of
Cr.P.C. Apparently the statement did not refer to penetrative sexual
assault. Prosecution has urged that omissions were not put to
Investigating Officer. Victim was not confronted with previous
statement. Prosecution has urged that there was lapses on the part
of Investigating Officer and Medical Officer. However, the fact
remains that there was no medical examination of victim and there
was no medical report to support prosecution case. Issue relating to
lapses in the investigation and inaction will have to be considered
while adjudicating appeal. The applicant is in custody for a period of
5 years and 2 months.
7. Considering the nature of evidence and factual matrix of the
matter, case for suspension of sentence and grant of bail is made out.
Hence, I pass following order :
ORDER
(i) Interim Application No.1988 of 2018 and Interim Application
No.1987 of 2018 are allowed and disposed of;
(ii) The sentence of imprisonment imposed vide judgment and
order dated 29th October 2018 passed by Additional Sessions Judge,
Solapur in Sessions Case No.164 of 2007 is suspended and applicant
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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;
(iii) The applicant is permitted to furnish cash bail in the sum of
Rs.25,000/- for a period of six weeks in lieu of surety;
(iv) The applicant shall not enter the jurisdiction of Tembhurni
Police Station, Taluka Madha, District Solapur where the victim
resides, till final disposal of this appeal;
(v) The applicant shall attend Trial Court once in six months on
First Saturday of the month till disposal of the Criminal Appeal;
(vi) In the event there are two consecutive defaults in attending
the Trial Court, the Trial Court shall submit report to this Court;
(vii) 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
