Bombay High Court
Arbaz Imran Nadaf vs The State Of Maharashtra And Anr on 14 October, 2022
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1371 OF 2022
IN
CRIMINAL APPEAL NO.444 OF 2022
Arbaz Imran Nadaf ..... Applicant
Versus
The State of Maharashtra & Ors. .... Respondents
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Ms. Anjali Patil, Advocate for the Applicant.
Mr. S.R. Agarkar, Advocate for Respondent No.1-State.
Ms. Archana Howal, Advocate for Respondent Nos.2 & 3.
-----
CORAM : SARANG V. KOTWAL, J.
DATE : 14th OCTOBER, 2022
P.C. :
1. This is an application for bail pending disposal of
Criminal Appeal No.444/2022. The applicant was convicted
by the Special Judge, Pune under the POCSO Act vide
judgment and order dated 4.4.2022 in Special Sessions Case
No.512/2020. The applicant was convicted for commission
of offence punishable under Section 376(2)(n) of IPC and
under Section 5(1)(j)(ii) read with 6 of the POCSO Act. The
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Deshmane(PS)
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major punishment imposed on him was for 20 years besides
imposition of fine.
2. Heard Ms. Anjali Patil, learned counsel for the
applicant, Shri S.R. Agarkar, learned counsel for the
respondent No.1-State and Ms. Archana Howal, learned
counsel for the respondent Nos.2 & 3.
3. The prosecution case is that the victim PW-2 was
a minor and her date of birth was 24.12.2004. In April,
2020, she was pregnant. The FIR was lodged by the sister of
PW-1. According to the prosecution case the applicant was
responsible for her pregnancy. He had kept physical
relations with PW-2 when she was below 16 years of age
and, therefore, the investigation was carried out. He was
arrested on 14.7.2020. Since then he is in custody.
4. Respondent Nos.2 & 3, who are the informant
and the victim herself, are represented by an Advocate.
Learned counsel appearing for these two respondents have
tendered affidavits of both these respondents. They are
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taken on record and marked 'X' and 'X1' for identification.
Copies of these affidavits are served on learned APP. Both
the respondent Nos.2 & 3 have stated in their affidavits that
PW-2 was having consensual relations with the applicant and
only out of misunderstanding the respondent No.2 had
lodged the FIR. As a result of her pregnancy she gave birth
to her child. Copy of the birth certificate of the child is
annexed to the affidavit which shows name of the applicant
as father of the child. According to her, her actual date of
birth was 24.12.2000 and not 24.4.2004 as per the
prosecution case. Both of them have prayed that bail be
granted to the applicant otherwise PW-2 and her daughter
will suffer great prejudice and difficulty.
5. Learned counsel for the applicant relied on these
affidavits. She submitted that there is some reasonable doubt
created about the date of birth of the victim. She herself has
stated that her date of birth is 24.12.2000 in her deposition.
Therefore, there is no reason to disbelieve her deposition.
6. I have perused the depositions of PWs-1 & 2.
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PW-1 has deposed that the date of birth of the victim was
24.12.2000 and she had got married with the applicant on
3.9.2019. In April, 2020 she was pregnant. She denied the
other incriminating prosecution case against the applicant.
In the cross-examination conducted on behalf of the
applicant, she has deposed that the birth certificate and the
Aadhaar card were prepared on the basis of the information
given by the father of PWs-1 & 2. They themselves were not
aware how to correct that record. She has deposed that she
had signed the FIR out of fear and because of pressure of
social workers and police.
7. PW-2 in her cross-examination has deposed that
she was born in Karnataka at the native place of her mother.
She was not aware as to why her father had given the date
of birth as '24.12.2004'. Till this case was launched she did
not feel it necessary to get her date of birth corrected. She
has further deposed in her cross-examination that she
wanted to reside with the applicant. After their marriage, the
applicant and his relatives were taking good care of herself
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and her child and that she had absolutely no complaints
against the applicant.
8. The affidavit of the sister of the victim shows
that her father died on 14.7.2011 which was much prior to
this case.
9. Considering all these aspects, some reasonable
doubt is created about the actual date of birth of the victim
which is a crucial factor in this case. The applicant is
sentenced to suffer RI for twenty years. He has young
daughter of two years age. The victim and her sister who
was the first informant; have not supported the prosecution
case. The appeal is already admitted and there is a
reasonable possibility of his acquittal.
10. Learned APP did not have serious objection for
showing leniency in this matter at this stage.
11. Considering all these aspects only for
consideration of bail sympathetic approach can be adopted
and the applicant can be granted bail pending his appeal. It
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is made clear that all these questions are left open to be
decided at the final hearing stage.
12. Hence, the following order :
:: O R D E R ::
i. During pendency and final disposal of Criminal
Appeal No.444/2022, the applicant is directed to
be released on bail on his furnishing P.R. bond in
the sum of Rs.30,000/- (Rupees Thirty Thousand
Only) with one or two sureties in the like amount.
ii. Interim Application is disposed of accordingly.
(SARANG V. KOTWAL, J.)
Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
Deshmane (PS)
PRAKASHRAO DESHMANE
DESHMANE Date:
2022.10.17
18:36:27
+0530
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