Amjadshah Nashirshah Fakir vs The State Of Maharashtra And ...
2023 Latest Caselaw 6419 Bom

                                      1                964 Cri. Appln 3807-22-.odt




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                 CRIMINAL APPLICATION NO.3807 OF 2022
                IN APEAL/866/2022 WITH APEAL/866/2022

                   AMJADSHAH NASHIRSHAH FAKIR
                                VERSUS
            THE STATE OF MAHARASHTRA AND ANOTHER
                                   ...
             Advocate for Applicant : Mr. C. C. Deshpande
          APP for Respondent No.1: Mrs. Vaishali N Patil Jadhav
           Advocate for respondent No.2 : Mr. R. P. Patwardhan
                                   ...

                                 CORAM : S. G. MEHARE, J.

                                 DATE     : 06.07.2023

PER COURT :

1.              Heard the learned counsel for the applicant, the learned

A.P.P for the respondent No.1/State and the learned                counsel for

respondent No.2/victims.



2.              The learned counsel for the applicant submits that the

applicant has deposited the fine amount.



3.        The applicant is seeking suspension of the sentence, under

Section 389 of the Code of Criminal Procedure imposed upon him in

Special Case No. 51/2016, passed by the learned Special Judge, Dhule

vide its Judgment and order dated 20.10.2022.




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3.              The learned counsel for the applicant would argue that

there was no evidence to prove penetrative sexual assault except the

words of the victims. The Medical Officer has categorically given the

admissions that there were no signs of penetration particularly

inserting the fingers into their private parts. In view of this fact, the

learned counsel for the applicant would argue that the applicant has

been incorrectly held guilty for the penetrative sexual assault and

erroneously convicted for the same.



5.     Per contra, the learned A.P.P. and the learned counsel for the

victim would argue that in the absence of medical evidence, the

children of small age cannot be disbelieved. They have no reason to

lie against the applicant. They have categorically deposed the fact as

to what happened with them. Hence, the applicant does not deserve

suspension of the sentence.



6.     Prima facie, it appears that there is no medical corroboration to

the victims that the fingers were inserted into their private parts. The

Medical Officer has candidly admitted that there was no penetration.

Relying on this,         prima facie question arises whether the applicant




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would be punished for penetrative sexual assault or bare sexual

assault. Considering the facts of the case, the Court is of the view that

this is a fit case to exercise powers under Section 389 of the Code of

Criminal Procedure. Hence, the following order :-

                               ORDER

(i)     The application is allowed.


(ii)    The execution, implementation and operation of substantive

sentence to suffer Rigorous Imprisonment for 10 years imposed

upon the applicant by the learned Special Judge ( POCSO Act),

Dhule in Special case No. 51/2016 dated 28.10.2022, is

suspended till conclusion of the appeal.

(ii) The applicant be released on bail on executing P. B. and S.B.

of Rs. 50,000/- with one solvent surety of the like amount.

(iii) Bail before the learned Additional Sessions Judge, Dhule.

(iv) The Secretary, High Court Legal Services Sub-Committee,

Aurangabad do pay the fee of Rs. 5,000/- (Rupees five

thousand)to the learned counsel appointed for respondent

No.2/victim.

( S. G. MEHARE ) JUDGE ysk