Bombay High Court
Pravin @Tukaram S/O Kapurchand ... vs The State Of Maharashtra, Thr. ... on 17 November, 2022
Bench: G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO.303 OF 2022 (APPA)
IN
CRIMINAL APPEAL NO.239 OF 2022
Pravin @ Tukaram s/o Kapurchand Chavan
(Vs.)
State of Maharashtra, through PSO PS Murtizapur and another
____________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Shri Ajay S. Londhe, Advocate for the appellant.
Shri S. A. Ashirgade, APP for respondent No.1/State.
CORAM : G.A. SANAP, J.
DATE : 17.11.2022.
This is an application filed by the appellant
under Section 389 of the Criminal Procedure Code for
suspension of substantive sentence. The appellant has
been convicted for the offences punishable under
Sections 376(2)(j)(l)(n) and 506 of the Indian Penal
Code and under Section 3 r/w 4, 5(1) r/w 6 of the
Protection of Children from Sexual Offences Act, 2012
(POCSO Act). He is sentenced to suffer rigorous
imprisonment for 10 years and to pay a fine of
Rs.10,000/- in default to further suffer simple
imprisonment for two months for the offence punishable
44 apeal 239.22.odt..odt
under Section 376(2) of the Indian Penal Code. He is
sentenced to suffer rigorous imprisonment for 7 years and
pay a fine of Rs.5,000/- in default to pay fine amount
further suffer simple imprisonment for one month for the
offence punishable under Section 506 of the Indian Penal
Code. No separate sentence has been awarded for the
offences punishable under Sections 6 and 4 of the
Protection of Children from Sexual Offences Act, 2012
(POCSO Act).
2. In this application, it is the case of the
appellant that there is no evidence on record to prove the
charge against the appellant. The main witnesses namely
the victim and the father of the victim have not supported
the case of the prosecution. There is no iota of evidence
to prove the offence of rape as well as the aggravated
sexual act by the accused. It is submitted that learned
Special Judge in the absence of evidence of the victim and
father, relying upon the evidence of the medical officer
has convicted and sentenced him as above. It is
submitted that there is no DNA report to independently
implicate the accused in the commission of crime. He has
a good case on merits. It is therefore stated that pending
the hearing and disposal of appeal, substantive sentence
44 apeal 239.22.odt..odt
may be suspended.
3. The State through the in-charge of the
concerned Police has filed the reply and opposed the
application. It is contended that the medical evidence is
sufficient to accept the case of the prosecution. The trial
was initially concluded against the original accused
Nos. 1 to 3. This accused was absconding. The original
accused Nos. 1 to 3 have already been acquitted. The
victim on the date of commission of offence was less than
14 years of age.
4. The father of the victim has filed the affidavit.
He has not opposed the application. It is contended that
he had doubt about the involvement of the appellant in
the commission of crime and therefore, the report was
lodged. In short he has supported the application filed by
the appellant.
5. I have gone through the record and
proceeding and particularly the judgment and order
passed by the learned Special Judge. The victim and her
father have not supported the case of the prosecution. It
is seen that therefore, there is no substantive evidence to
44 apeal 239.22.odt..odt
fortify the charge. Their evidence even if accepted as it is
may not be of any help to the prosecution.
6. Learned Judge has placed explicit reliance on
the medical officer and Investigating Officer. It is a case
of the prosecution that victim had conceived and the
fetus was aborted. It is to be noted that the samples of the
aborted fetus had not been collected and sent to FSL for
DNA analysis. Learned Advocate on the basis of this
material submitted that evidence of the medical officer
could be used as a corroborative evidence. The said
evidence cannot be accepted as a substantive evidence
with regard to the commission of offence.
7. In my view considering the peculiar facts and
the nature of the evidence brought on record, the
application needs to be granted. The appellant has been
in jail since last 2½ years. Considering the pendency of
the appeals of the convicted accused in jail, appeal will
take its own time to reach the stage of final hearing.
8. In the facts and circumstances, in my view, the
interest of justice would met if the substantive sentence is
suspended during the pendency of the appeal. It is
further seen that the father of the victim who has not
supported the case of prosecution has come before this
44 apeal 239.22.odt..odt
Court and reiterated that only on the basis of doubt the
appellant was implicated in the crime.
9. In the facts and circumstances the application
is allowed.
(i) The substantive sentence awarded on the
different counts as, stated above, vide judgment and order
dated 22.03.2022 passed by the learned Additional
Sessions Judge, Akola Special Court for under POCSO
Act, shall remain suspended during the pendency of the
appeal.
(ii) The appellant shall deposit the fine amount in
the trial Court.
(iii) The appellant- Pravin @ Tukaram S/o
Kapurchand Chavan on depositing of fine amount and on
his furnishing P.R bond in the sum of Rs.25,000/- with
one surety like amount be released on bail.
10. The Criminal Application stands disposed of.
CRIMINAL APPEAL NO.239 OF 2022
1. Record and proceedings has been received.
2. Paper book be prepared.
JUDGE
manisha
Signed By:MANISHA ALOK
SHEWALE
Signing Date:18.11.2022 16:00
