Bombay High Court
Chetan Alias Sakkhya Namdev ... vs The State Of Maharashtra on 9 March, 2022
Bench: Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 106 OF 2022
IN
CRIMINAL APPEAL NO. 25 OF 2022
Chetan Alias Sakkhya Namdev Shelake ...Applicant/Appellant
Versus
The State Of Maharashtra ...Respondent
....
Mr. Aniket Nikam, Advocate for the Applicant/Appellant
Mr. H. J. Dedhia, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 9th MARCH, 2022.
PER COURT:
1. This is an application for suspension of sentence and
grant of bail pending Criminal Appeal No.25 of 2022. The
applicant is convicted by judgment and order dated 29th November,
2021 passed by the Additional Sessions Judge and Special Judge
(POCSO), Nashik for offences under Section 376 (1) of Indian
Penal Code (for short "IPC"), Section 323 of IPC and Section 506
Part-II of IPC. He has been sentenced to undergo rigorous
imprisonment of 10 years, 1 year and 2 years respectively.
2. The case of the prosecution is that on 21 st January,
2018, the victim went for grazing goats. She was accompanied by
her cousins. Accused came on motorcycle. He dragged the victim
Digitally
signed by
SAJAKALI
SAJAKALI LIYAKAT
LIYAKAT JAMADAR
JAMADAR Date: Sajakali Jamadar 1 of 7
2022.03.11
17:48:16
+0530
3. Ia-106-2022-in-Apeal-25-2022.doc
towards pond and committed forcible sexual intercourse. He
assaulted cousins of victim and threatened them. The cousins
shouted and on hearing shouts other persons came to the spot. The
accused was apprehended. First Information Report (for short
'FIR') was registered. Medical examination of the victim was
conducted. On completing investigation, charge-sheet was filed.
3. Learned counsel for the applicant submitted that the
applicant has been falsely implicated in this case. The applicant is
in custody for a period of four and half years. The evidence of
witnesses is contradictory. The cousins were allegedly
accompanying the victim are not examined. The version of PW-1
and PW-2 defers. The evidence of PW-1 is in the nature of hearsay.
There is discrepancy about the recovery of clothes of victim.
4. Learned APP submitted that there is sufficient
evidence to support the conviction. The evidence of victim
attributes role of sexual assault to the applicant. The evidence of
Medical Officer supports the prosecution case. There is no reason
to falsely implicate the applicant. On hearing shouts of cousins of
the victim, people working in the field had gathered at the spot.
The evidence of PW-5 had disclosed that the accused was
apprehended at the spot. The offence is of serious nature.
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5. The alleged incident had occurred on 21st January,
2018. The offences were registered vide C.R. No.I-14 of 2018 for
offences under Sections 376(i)(j), 323, 506 of IPC and Sections 4,
6, 8 of Protection of Children from Sexual Offences Act, 2012 (for
short 'POCSO Act') and Section 3(1)(r)(s)(w) of Scheduled Caste
and Scheduled Tribes (Prevention of Atrocities) Act, 1989. ( for
short "SC ST Act"). The applicant is however convicted for offences
as stated herein above. There is no conviction for the offences
under the POCSO Act. The applicant is acquitted for the offence
under SC ST Act. In Paragraphs - 15 & 16 of the impugned
judgment, the trial Court has dealt about proof of age of the victim.
It was observed that the prosecution has relied upon the entries in
the school register passing from one school to another and the
leaving certificate issued by first attended school, which the victim
had first attended, which has no evidentiary value. The
prosecution has not examined the Principal of the school or the
person, who had issued school leaving certificate or other person
who has recorded birth date of the victim in the certificate. The
prosecution has failed to prove that the victim was born on
02-09-2001 and that the victim was child within the meaning of
Section 2(1)(d) of the POCSO Act. Hence, the accused was
acquitted for offence under the POCSO Act. Even on perusal of
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evidence of PW-1 (mother of victim) and PW-2 (victim) it can be
seen that they have not specifically disclosed the date of birth of
the victim.
6. PW-1 is the mother of victim. On perusal of her
evidence it can be seen that, she returned from work and noticed
that the victim was shouting and frightened. The victim disclosed
that one boy had dragged her towards pond and subjected her to
forcible sexual intercourse. She was threatened. The victim was
accompanied by two girls. The accused gave them chocolates.
The lady working in the agricultural field caught accused.
Thereafter, the mother of victim lodged the FIR. Her evidence does
not disclose the name of the accused. The victim did not disclose
to her the name of the accused. She has also stated that, clothes of
the victim were seized by the Police from her. PW-2 (victim) has
narrated the incident. She has stated that one boy named Sakkhya
came to the spot and gave chocolates to her cousins and thereafter
the victim was subjected to sexual intercourse. It is pertinent to
note that, while divulging the incident to her mother, the victim
had not disclosed the name of accused to her. In her evidence she
has referred to the name of accused as Sakkhya. Admittedly, she
was not knowing the accused. She learnt from the police that he is
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resident of same village and his name is Chetan Shelke. She also
stated that, clothes lying at the spot of incident were recovered by
the Police in her presence. From her evidence it it apparent that,
two sisters were accompanying her, however, they were not
examined. There is contradiction in relation to the recovery of
clothes in the versions of PW-1 & PW-2. PW-5 had reached the
spot, she was working in the field. She saw two girls in frightened
condition. They did not disclose their names. One of them stated
that, her sister is caught by some persons. The witness and others
went to the spot. On the way they met Sakkhya @ Chetan. One of
the girl disclosed that he is the same person, who had caught her
sister. The witness and others apprehended accused. They went to
the spot. The victim was lying at the spot. The accused was
brought in the village. The victim was handed over to the parents.
As stated above, the sisters of the victim were examined and there
is no corroboration to the deposition of this witness that, one of
her sister had stated that he is the same person, who caught victim.
PW-7 is the Medical Officer, who had examined the victim. The
evidence of the said witness discloses that the history was provided
by the mother of victim that while the victim was grazing cattle in
the forest, she was molested by 18 year old boy. She had examined
the victim. She found minor abrasions over the back of the victim.
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There are no abrasions or marks on private parts. Thus, it can be
seen that the history provided by PW-7 runs counter to the version
of prosecution case. The evidence also discloses that there were no
forcible abrasion marks on the private part. PW-8 and PW-9 were
examined in relation to the proof of date of birth of the victim. The
trial Court has however disbelieved the version of this witness and
it is held that the date of birth has not been proved. PW-6 is the
Police Inspector, who has conducted the investigation. Although it
is the version of PW-5 that accused was apprehended by her and
other persons, the evidence of Police Inspector is silent as to why,
where and when he was arrested. It is also apparent that the name
of the accused was not known to the victim at the time of incident.
On perusal of the medical case papers and the examination of the
victim it can be seen that there were no injuries detected on the
private part of the victim. It also appears that the victim had
undergone menstruation.
7. Taking into consideration the aforesaid circumstances
and the fact that the applicant is in custody for a period of about
four years, case for suspension of sentence and grant of bail is
made out.
8. Hence, I pass the following order:
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ORDER
i. Interim Application No.106 of 2022 is allowed;
ii. During the pendency of Criminal Appeal No.25 of
2022, the sentence of imprisonment imposed vide Judgment
and order dated 29th November, 2021 passed by learned
Additional Sessions judge and Special Judge (POCSO), Nashik
in Special Case (atrocity) No.11 of 2018 is suspended and the
applicant is directed to be released on bail on executing P.R.
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
surety.
iv. The applicant shall attend the trial Court once in six
months on first Saturday of the month till the final disposal of
the appeal;
v. In the event, there are two consecutive default in
attending the trial Court, the said fact may be brought to the
notice of this Court and in such eventuality, the prosecution
will be at liberty to prefer an application for cancellation of
bail.
vi. Interim Application stands disposed of
accordingly.
(PRAKASH D. NAIK, J.)
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