Appa Yashwant Salve vs The State Of Maharashtra And Anr
2023 Latest Caselaw 1403 Bom

                                                           :1:                      20.ia-3433-21.odt

                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION

                                              INTERIM APPLICATION NO.3433 OF 2021
                                                              IN
                                                CRIMINAL APPEAL NO.1068 OF 2021

                               Appa Yashwant Salve                           ...Applicant
                                           Versus
                               The State of Maharashtra & Anr.               .... Respondents
                                                           -----
                               Mr. Sachin H. Deokar, Advocate for the Applicant.
                               Smt. M.R. Tidke, APP for the Respondent No.1-State.
                               Mr. Madhusudan D. Pareek, Advocate (appointed) for
                               Respondent No.2.
                                                           -----

                                                                 CORAM : SARANG V. KOTWAL, J.

DATE : 9th FEBRUARY, 2023 P.C. :

1. This is an application for bail pending final

disposal of Criminal Appeal No.1068/2021. Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO

2. The applicant was convicted and sentenced by PRAKASHRAO DESHMANE DESHMANE Date:

2023.02.10 11:51:16 +0530

the Additional Sessions Judge, Pune vide his judgment and

order dated 13.11.2021 passed in Special POCSO Case

No.290/2018. The applicant was convicted for commission

of offences punishable under Section 376 of IPC and under

Sections 4 and 6 of the Protection of Children From Sexual

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Deshmane(PS) :2: 20.ia-3433-21.odt

Offences Act, 2012. The major sentence imposed on him

was for ten years besides imposition of fine of Rs.1 Lakh and

in default of payment of fine to suffer SI for six months.

3. Heard Shri Sachin Deokar, learned counsel for

the applicant, Smt. M.R. Tidke, learnaed APP for the

respondent No.1-State and Shri Madhusudan Pareek, learned

appointed Advocate for the respondent No.2.

4. Learned counsel for the applicant submits that

the applicant is in custody since 2018 and, therefore, more

than four & half years have passed. He submitted that the

victim was not available at the time of recording of her

evidence as she had passed away. There is no material

against the applicant showing that it was a forcible sexual

intercourse. He submitted that the age of the victim was not

established beyond reasonable doubt.

5. Learned APP as well as learned counsel for the

respondent No.2 opposed these submissions. They relied on

the observations in paragraph-19 of the impugned judgment,

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which mentions that the date of birth of the victim was

28.1.2000. The DNA report shows that the victim and the

applicant were the biological parents of the baby of the

victim. Learned counsel submitted that the FIR was lodged

on 13.5.2018 and the baby was delivered in June, 2018.

Therefore, obviously the incident had taken place before the

victim had turned 18 years.

6. Considering the submissions made by learned

counsel for the respondent No.2, it does appear that the

offence is made out against the applicant. However, this will

have to be finally decided at the final hearing stage and on

the basis of material available on record. At this stage, no

case for bail is made out. The application is rejected.

Considering that the applicant is in custody for a

considerable period, the appeal is expedited. The applicant

is at liberty to make an application for early hearing of the

appeal.

(SARANG V. KOTWAL, J.)

Deshmane (PS)

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