Bombay High Court
Khalid Abubakar Baig vs State Of Maharashtra on 4 May, 2022
Bench: Prakash Deu Naik
1 of 4 15.IA.819.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.819 OF 2022
IN
CRIMINAL APPEAL NO.274 OF 2022
Khalid Abubakar Baig Applicant
versus
The State of Maharashtra Respondent
Mr.Vivek B. Pandey, Advocate for applicant.
Mr.S.V.Gavand, APP, for State.
Mr.Nikhil Kunal Chaudhari, Advocate for respondent no.2.
CORAM : PRAKASH D. NAIK, J.
DATE : 4th May 2022
PC :
1. This is an application for suspension of sentence and grant of
bail during pendency of Criminal Appeal No.274 of 2022. The
applicant has been convicted for the offence under Section 354 of
Indian Penal Code and sentenced to suffer imprisonment for 3 years
and pay fine of Rs.2,000/-.
2. The case of prosecution is that the victim girl had approached
the accused Doctor for treatment. The accused had allegedly
outraged modesty of the victim girl during her medical examination
when the victim's mother had gone out of clinic for answering phone
call. The complaint was lodged. The FIR was registered. On
completing investigation charge sheet was filed.
Digitally signed by
MANISH
3. Learned advocate for applicant submitted that maximum
MANISH SURESH
SURESH THATTE
Date: 2022.05.06
THATTE 10:38:50 +0530
sentence of imprisonment imposed by the Trial Court while
2 of 4 15.IA.819.2022.doc
convicting the applicant is for a period of 3 years. The applicant has
undergone custody of about 2 years and 1 month. Evidence of
witnesses examined by the prosecution suffers from serious
infirmities. Independent witnesses examined by the prosecution has
not supported the prosecution. She was cross examined. Her
evidence discloses that no such incident had occurred. The victim's
mother had never gone out of the cabin of doctor and therefore it is
submitted that prosecution case suffers from serious doubt.
4. Learned APP submitted that there is no reason to disbelieve
the evidence of victim girl. The prosecution has proved that incident
had occurred.
5. Learned counsel for respondent no.2 submitted that evidence
of victim girl as well as her mother establishes the prosecution case.
Section 29 of POCSO Act relates to the presumption which has not
been rebutted by victim in any manner. The applicant has not
examined any witness to support his defense. There is no reason to
disbelieve the version of victim and her mother. The accused is
doctor who has taken undue advantage of the situation. The victim
was aged around 14 years at the time of incident. The Trial Court
has shown leniency while convicting the applicant and imposed
sentence of 3 years. The maximum sentence provided under the law
is up to 5 years.
6. The applicant is in custody for a period of about 2 years. The
maximum sentence imposed by Trial Court is of 3 years. Vide order
dated 31st March 2022 by way of interim relief this Court has
suspended sentence of imprisonment.
3 of 4 15.IA.819.2022.doc
7. The prosecution is relying on the evidence of complainant
(mother of victim girl) and PW-2 (victim girl). It is alleged that the
accused has outraged victim girl's modesty by touching her
inappropriately while examining her This incident had occurred
when victim's mother had gone out of doctor's cabin. The
prosecution has examined PW-3 as an independent witness. She did
not support prosecution case. The prosecution sought permission to
put leading questions to her, which was granted and prosecutor had
put questions to the said witness. In her evidence, in the cross-
examination the witness had stated that there was lady compounder
with the doctor. The compounder used to come in the cabin of
doctor along with patient. The doctor used to check the patient and
thereafter the lady compounder went out of cabin with patient. The
cabin of doctor and compounder are open and adjacent to each
other. The clinic of the doctor is transparent i.e. glass are fixed. The
defence has urged that evidence of victim girl, her mother are
contradictory to evidence of PW-3. However, considering the nature
of evidence and fact that applicant is in custody for more than 2
years and maximum sentence imposed by the Trial Court is of 3
years, sentence of imprisonment can be suspended.
ORDER
(i) Interim Application is allowed and disposed of;
(ii) Interim order dated 31st March 2022 is confirmed;
(iii) The sentence of imprisonment imposed vide judgment and
order dated 11th November 2021 by Additional Sessions
Judge,Borivali (Division) Dindoshi, Goregaon, Mumbai in Special
POCSO Case No.292 of 2020 is suspended and applicant is directed
4 of 4 15.IA.819.2022.doc
tobe released on bail on executing PR bond in the sum of
Rs.20,000/- with one or more sureties in the like amount;
(iv) The applicant is permitted to furnish cash bail in the sum of
Rs.20,000/-;
(v) The applicant shall not contact the victim and harass her in
any manner;
(vi) The applicant shall attend Trial Court once in six months on
First Saturday of the month till disposal of the Criminal Appeal;
(vii) In the event there are two consecutive defaults in attending
the Trial Court, the Trial Court shall submit report to this Court;
(viii) 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
