Bombay High Court
Manoj Ramlal Roy vs The State Of Maharashtra on 22 March, 2022
Bench: Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1455 OF 2019
IN
CRIMINAL APPEAL NO.934 OF 2021
Manoj Ramlal Roy Applicant
versus
The State of Maharashtra Respondent
Ms.Keral Mehta, Advocate for applicant-appellant.
Mr.Manas Gavankar, Advocate for respondent no.2.
Mr.S.V.Gavand, APP, for State.
CORAM : PRAKASH D. NAIK, J.
DATE : 22nd March 2022
PC :
1. This is an application for suspension of sentence and grant of
bail pending Criminal Appeal No.934 of 2021. The applicant has
been convicted vide judgment and order dated 20 th December 2018
passed by Special Judge under POCSO Act for Greater Bombay in
POCSO Special Case No.478 of 2016. The applicant has been
convicted for the offence under Section 376(2)(i) of Indian Penal
Code and Section 6 of Protection of Children from Sexual Offences
Act, 2012. He has been sentenced to suffer imprisonment of 15
years on each count. Both the sentences were directed to run
concurrently.
2. The case of prosecution is that complainant and accused are
neighbours. The accused is minor girl. The incident had occurred on
Digitally signed by
MANISH MANISH SURESH
SURESH
19th September 2016. The accused had allegedly applied vegetable
THATTE
Date: 2022.03.24
THATTE 16:58:08 +0530
oil on the private part of the victim and fingered her private part.
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The FIR was registered. Statements of witnesses were recorded.
Statement of victim was recorded u/s.164 of Cr.P.C. Charge sheet
was filed.
3. Learned advocate for applicant submitted that applicant is in
custody for five years and four months. There is no cogent evidence
to establish that accused has committed aggravated penetrative
sexual assault. Evidence of witnesses at the most would indicate
sexual assault. The aggravated sexual assault is punishable under
Section 10 of POCSO Act and maximum punishment prescribed is up
to 7 years. It is submitted that evidence of father of victim (PW-1)
does not refer to the act of fingering private part of victim. The
evidence of victim also does not refer to such act. The evidence of
mother of victim (PW-3) has referred to the alleged act of inserting
finger. Her version is after thought. Medical evidence does not
indicate that there was penetrative sexual assault. The applicant was
produced for medical examination after he was arrested. History
provided by applicant is not admissible in evidence The applicant
has already undergone substantive sentence of imprisonment.
4. Learned APP submitted that medical evidence and evidence of
other witnesses indicate that accused had subjected the victim to
penetrative sexual assault. The chemical analyzer report proves that
oil was found on the clothes of victim as well as accused.
5. Learned advocate for respondent no.2 submitted that victim
was small child. She has narrated the incident to her mother.
Evidence of mother refers to penetrative sexual assault.
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6. On the basis of evidence adduced, the question which arises
for consideration is whether there is aggravated penetrative sexual
assault. The appeal is pending for final disposal. Evidence of PW-1,
the father of victim refers to the fact that victim had informed her
mother that uncle residing as neighbour applied oil on her private
part. He disclosed the incident to neighbours and thereafter victim
was taken to hospital. There is no reference of penetration by finger.
The victim (PW-2) has stated that accused had applied oil to her
private part. Evidence of mother (PW-3) stated that victim had
disclosed to her and husband that accused had inserted finger in
private part. The evidence of victim and father is contrary to the
evidence of mother. The doctor's evidence (PW-8) indicate that
accused had given history of fingering. The defence has urged that
accused was examined by said medical officer while he was in
custody of Police and such history is hit by Section 26 of Evidence
Act. It is not admissible evidence. Evidence of PW-11 (medical
officer) who examined the victim mentions that mother of victim
gave history.. After examination no abnormality was detected.
Provisional opinion was given that possibility of sexual violence
cannot be ruled out. There is no opinion that there was penetrative
sexual assault. Statement of victim recorded u/s.164 of Cr.P.C also
does not refer to any penetrative sexual assault. The applicant is in
custody for more than five years.
7. Considering the aforesaid circumstances, sentence of
imprisonment can be suspended. Hence, I pass following order :
ORDER
(i) Interim Application is allowed and disposed of;
(ii) The sentence of imprisonment imposed by judgment and order
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dated 20th December 2018 passed by Special Judge under POCSO Act
for Greater Bombay in POCSO Special Case No.478 of 2016 is
suspended and applicant is directed to be released 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 eight weeks in lieu of sureties;
(iv) The applicant shall attend Trial Court once in six months on
First Saturday of the month till disposal of the Criminal Appeal;
(v) In the event there are two consecutive defaults in attending
the Trial Court, the Trial Court shall submit report to this Court;
(vi) 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;
(vii) The applicant shall provide his residential address to the
Investigating Officer;
(viii) The applicant shall not enter the vicinity of residence of victim.
(PRAKASH D. NAIK, J.)
MST
