Bombay High Court
Shaikh Aasif Shaikh Habi vs The State Of Maharashtra on 11 July, 2023
Bench: S. G. Mehare
1 956-CrAn-1334-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1334 OF 2023
IN APEAL/298/2023 WITH APEAL/298/2023
SHAIKH AASIF SHAIKH HABI
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. Harshal Prakash Randhir
APP for Respondent No.1/State : Ms. V. N. Patil Jadhav
Advocate for Respondent No.2/victim : Mr. Shriniwas A. Kulkarni
(Appointed through Legal Aid)
...
CORAM : S. G. MEHARE, J.
DATE : 11-07-2023
PER COURT :-
1. Heard the learned counsel for the applicant, the learned
A.P.P. for respondent No.1/State and the learned counsel for
respondent No.2/victim.
2. The applicant is seeking suspension of sentence imposed
upon him by the learned Additional Sessions Judge, (Fast Track
Special Court) Jalgaon, in Special (POCSO) Case No.43 of 2018
dated 08.02.2023, to suffer rigorous imprisonment for three years
for the offence punishable under Section 354A of the Indian Penal
Code and fine of Rs.5000/- and rigorous imprisonment for five
years for the offence punishable under Section 8 of the Protection
of Children from Sexual Offences Act, 2012 and fine of Rs.10,000/-.
The applicant has deposited fine amount.
2 956-CrAn-1334-23.odt
3. The learned counsel for the applicant would submit that it is
a short term conviction. There are no antecedents to the discredit
of the applicant. The applicant has a good defence. The evidence
needs to be re-appreciated. The evidence on sexual assault for
outraging modesty has not been properly appreciated. There is no
possibility of listing the matter in due course in near future for final
hearing. Hence, the sentence may be suspended.
4. Per contra, the learned A.P.P. for respondent No.1/State and
the learned counsel for respondent No.2/victim have strongly
opposed the application. They would submit that it is an offence
against a child. It has been proved that the applicant has
outraged the modesty of a child and sexually assaulted her. The
offence is grave. Short term conviction may not be a ground to
suspend the sentence. Therefore, the application may be rejected.
5. Perused the application and impugned judgment and order.
6. Normally, the short term sentence is suspended. The
applicant was on bail during trial. There were no complaints
against him. He had not misused the liberty granted to him while
he was on bail. There are grounds to consider. Considering the
number of appeals against the convicts undergoing sentence.
There is no possibility to have early disposal of the present case in
near future. Considering this aspect, this is a fit case to exercise
discretion under Section 389 of the Code of Criminal Procedure.
Hence, the order :-
3 956-CrAn-1334-23.odt
i) Criminal application is allowed.
ii) The execution, implementation, effect and operation of the
sentence, to suffer rigorous imprisonment for three years for
the offence punishable under Section 354A of the Indian
Penal Code and rigorous imprisonment for five years for the
offence punishable under Section 8 of the Protection of
Children from Sexual Offences Act, 2012 imposed upon the
applicant by the learned Additional Sessions Judge, (Fast
Track Special Court) Jalgaon, in Special (POCSO) Case No.43
of 2018, dated 08.02.2023, is suspended till conclusion of
the appeal.
iii) 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.
iv) Bail before the learned Additional Sessions Judge, (Fast Track
Special Court) Jalgaon.
v) List the criminal Appeal No.298 of 2023 on 20.09.2023.
( S. G. MEHARE )
JUDGE
rrd
