Bombay High Court
Omhari Satyanarayan Singh vs State Of Maharashtra And Anr on 27 July, 2023
Bench: Prakash Deu Naik
2023:BHC-AS:21029
29-APEAL-1282-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.4465 OF 2022
WITH
INTERIM APPLICATION NO.4464 OF 2022
IN
CRIMINAL APPEAL NO. 1282 OF 2022
Omhari Satyanarayan Singh ...Applicant/Appellant
Versus
State of Maharashtra and Anr. ...Respondents
....
Mr. Siddhesh Tiwari a/w V.S. Tiwari i/by Mr. Vimlesh Kushwaha
Advocate for the Applicant/Appellant.
Mr. Saloni M. Ghule, Appointed Advocate for Respondent No.2.
Ms. Pallavi N. Dabholkar, APP for the Respondent - State.
Mr. R.S. Kowale, (P.S.I.) Dadar Railway Police Station, present.
....
CORAM : PRAKASH D. NAIK, J.
DATE : 27th JULY, 2023
PER COURT:
1. Both these applications are preferred by the applicant for
suspension of sentence and grant of bail. The applicant has been
convicted for offences punishable under Sections 7 & 8 of the
Protection of Children from Sexual Offences Act, 2012 (for short
'POCSO Act') and sentenced to suffer imprisonment of 3 years and
to pay fine of Rs.25,000/-. He is also convicted for offence under
Sections 354-A and 354 of Indian Penal Code (for short "IPC") but
no separate sentence is passed.
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2. The prosecution case is that the victim had boarded the local
train and she was followed by the accused and he outraged her
modesty. The victim had apprehended the accused with the help of
some passengers and thereafter the Police Constable accompanied
them to Mulund Police Station and subsequently the First
Information Report (for short 'FIR') was registered with Dadar
Police Station.
3. Learned Advocate for the applicant submitted that the
applicant was on bail during the trial. The trial Court had
suspended the sentence on the date of conviction. The prosecution
case suffers from the serious infirmities. The victim has not not
produced any evidence in the nature of ticket or railway pass to
show that, she was travelling in the train on the day of incident.
The Investigating Officer has not collected the CCTV footage to
show the presence of applicant and the victim at the spot of
incident. The case of the victim is that, she was accompanied by
her friend. However, the statement of the friend of victim was not
recorded. Spot panchanama was not recorded. The passengers
who had apprehended the accused along with the victim were not
examined. These discrepancies goes to the root of the matter and
the conviction based on such infirmities will have to be set aside at
the appropriate stage.
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4. Learned A.P.P. pointed out that the previous orders passed by
this Court on 25.01.2023, 11.04.2023 and 24.04.2023. The
sentence was initially suspended by this Court vide order dated
25.01.2023 by way of interim relief and notice was issued to the
complainant. Subsequently the interim order was continued on
08.03.2023. On 11.04.2023 the Court indicate that there is
evidence against the applicant and the interim relief need not be
confirmed. The parties were directed to collect the paper book and
it was further directed that till the hearing of the appeal, the
interim order shall continue to remain in force. Subsequently, vide
order dated 24.04.2023, the matter was adjourned to 12.06.2023.
Form the order dated 11.04.2023 it appears that, interim order was
continued till final disposal of appeal. However, it was indicated
that the appeal could be heard. The interim order was again
continued on 11.07.2023, although the fact remains that it was in
force in view of previous order.
5. Learned A.P.P. submitted that, there is direct evidence against
the applicant. The statement of the victim clearly attributes overt
act to the applicant. The applicant was involved in the act of
outraging the modesty. He was apprehended by the victim. PW-1,
who is the constable, who was accompanied them has supported
the prosecution case.
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6. Learned counsel for Respondent No.2 reiterated the
submissions of learned A.P.P. It is submitted that there is evidence
to show the involvement of applicant in the crime. There is no
reason to disbelieve the version of the victim. The sentence
imposed by the trial Court is of three years. The sentence was
suspended on the date of conviction. Interim relief was granted by
this Court vide order dated 25.01.2023 which is in force. The
applicant/appellant has urged several discrepancies as referred to
herein above. The appeal is of 2022. It is not possible to take up
the appeal out of turn, whereas several other appeals challenging
order of conviction are pending in this Court. Considering all the
aforesaid circumstances, I pass the following order :
ORDER
i. Interim Application Nos.4465 of 2022 & 4464 of 2022
are allowed;
ii. The substantive sentence of imprisonment imposed
vide Judgment and order dated 23.11.2022 passed by the
learned Special Judge (under POCSO Act), Gr. Mumbai in
POCSO Special Case No.169 of 2019 is suspended by
continuing the interim order dated 25.01.2023 and the
applicant is directed to be released on same bail as in the trial
Court with fresh bond.
iii. Applications stand disposed of.
(PRAKASH D. NAIK, J.)
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