Bombay High Court
Jastinraj Joseph John vs State Of Maharashtra And Anr on 19 January, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2450 OF 2022
IN
CRIMINAL APPEAL NO.1027 OF 2021
Jastinraj Joseph John ..... Applicant
Versus
The State of Maharashtra & Anr. .... Respondents
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Ms.Apeksha Vora, Advocate for the Applicant.
Mrs. M.R. Tidke, APP for the Respondent No.1-State.
Ms. Ameeta Kuttikrishnan, Advocate (appointed) for the
Respondent No.2.
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CORAM : SARANG V. KOTWAL, J.
DATE : 19th JANUARY, 2023
P.C. :
1. This is an application for bail pending final
disposal of the appeal.
2. Heard Ms.Apeksha Vora, learned counsel for the
applicant, Smt. M.R. Tidke, learned APP for the Respondent
No.1-State and Ms. Ameeta Kuttikrishnan, learned appointed
counsel for the Respondent No.2.
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Deshmane(PS)
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3. The applicant was convicted by learned Special
Judge under POCSO Act for Greater Mumbai vide his
judgment and order dated 23.8.2021 passed in POCSO
Special Case No.435/2018. The applicant was convicted for
commission of the offence punishable under Section 4 of the
Protection of Children From Sexual Offences Act, 2012 (for
short, 'POCSO Act') and was sentenced to suffer RI for eight
years and to pay fine of Rs.15,000/- and in default to suffer
RI for four months. He was convicted under Section 363 of
IPC and was sentenced to suffer RI for one year and to pay
fine of Rs.5,000/- and in default to suffer RI for two months.
He was also convicted for commission of the offence
punishable under Section 376 of IPC but in view of the
sentence under Section 4 of the POCSO Act, no separate
sentence was imposed.
4. The prosecution case is that the victim was about
14 years of age at the time of incident. Her date of birth was
13.2.2004 and the incident had occurred on 18.6.2018. On
that day she had not gone to her school. At about 5.30 p.m.
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she had gone outside of her house to play with her friends.
She was with her friends till late hours in the night. It is the
prosecution case that the applicant came there on his
motorcycle, took her in a small hutment and committed rape
on her.
5. Learned counsel for the applicant submitted that
the identity of the offender is seriously in doubt. The test
identification parade is held much belatedly. The pancha for
arrest of the applicant and for the test identification parade
was the same and, therefore, reasonable doubt is raised
about the genuineness of the test identification parade.
6. She submitted that the victim's friend is not
examined and the applicant examined that friend's mother.
The defence witness has categorically stated that the victim
was not with her friend. She submitted that thus the basis of
the prosecution case is false and, therefore, the applicant
could not have been convicted.
7. Learned counsel for the respondent No.2 as well
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as learned APP submitted that the medical evidence supports
the victim's case and the test identification parade
establishes the identity of the applicant. They opposed this
application on these grounds.
8. I have considered all these submissions. I have
also perused the evidence of the victim who is examined as
PW-1 as well as the medical evidence. The victim's medical
evidence is in the form of PW-3 i.e. the Medical Officer who
had medically examined the victim. The victim's version is
supported by the medical officer. Therefore, at this stage,
there is sufficient material against the applicant. However,
all these points are left open to be decided at the final
hearing stage. This evidence is sufficient for rejection of the
bail application.
9. The applicant is in custody since June, 2018. The
record and proceedings with paper books are received.
Therefore, the appeal itself can be listed for final hearing.
Hence, the following order :
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:: O R D E R ::
i. The application for bail is rejected.
ii. The appeal be listed on the weekly final hearing
board commencing from 20.2.2023.
iii. Interim Application is disposed of accordingly.
(SARANG V. KOTWAL, J.)
Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE Date:
2023.01.20
17:01:12
+0530
Deshmane (PS)
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