Bombay High Court
Manoj Kamla Chouhan vs State Of Maharashtra And Anr on 16 June, 2023
Bench: Prakash Deu Naik
2023:BHC-AS:16111
44-IA-1436-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1436 OF 2023
IN
CRIMINAL APPEAL NO. 457 OF 2023
Manoj Kamla Chouhan ...Applicant/Appellant
Versus
The State of Maharashtra & Anr. ...Respondents
....
Mr. V. S. Tiwari, Advocate for the Applicant/Appellant.
Ms. Mallika Sharma, Advocate for Respondent No.2.
Ms. Pallavi N. Dabholkar, APP for the Respondent No.1 - State.
....
CORAM : PRAKASH D. NAIK, J.
DATE : 16th JUNE, 2023.
PER COURT :
1. The applicant is seeking suspension of sentence and grant of
bail during the pendency of appeal challenging the Judgment of
conviction.
2. The applicant is convicted for the offences punishable under
Sections 376(2)(n), 506(2) of Indian Penal Code (for short "IPC")
and sentenced to suffer imprisonment of ten years and two years
on each count.
3. The case of the prosecution is that the minor victim was
subjected to sexual assault by the applicant which had resulted in
pregnancy. The alleged incident had occurred somewhere in
March-2017 and the FIR was lodged on 09.07.2017.
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4. Learned Advocate for the applicant submitted that, there is
delay in lodging the First Information Report. The evidence suffers
from serious discrepancies. The D.N.A. Report suffers from doubt.
The applicant is in custody for a period of about six years. The fact
that the victim was silent for substantial period of time and that she
along with her family attended the marriage of the applicant would
suggest that the relationship between the accused and the victim
was consensual. The applicant has been acquitted for the offences
under the Protection of Children from Sexual Offences Act, 2012
(for short 'POCSO Act').
5. Learned A.P.P. and learned Advocate for Respondent No.2
submitted that there is no evidence to indicate that the relationship
was consensual. The D.N.A. Report indicates that the applicant is
the biological father of the foetus. The evidence of the victim could
not be shaken. The prosecution has proved that the accused has
subjected the victim to sexual assault. Although there is acquittal
under the provisions of the POCSO Act, the applicant has been
convicted for the offence under Section 376 of IPC.
6. As stated above, the trial Court has acquitted the applicant
for the offences under the POCSO Act. The findings of the trial
Court indicate that the prosecution was not able to prove the age of
the victim girl. The FIR was not lodged immediately after the
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incident. The cross examination of the victim discloses that, even
after the alleged incident, she had attended the marriage of the
applicant and stayed in his house along with her family for a period
of about one month. The applicant is in jail for period of about six
years. Considering the nature of evidence and the fact that the
applicant is in jail for a period of six years, case for suspension of
sentence and grant of bail is made out.
ORDER
i. Interim Application No. 1436 of 2023 is allowed;
ii. The substantive sentence of imprisonment imposed
vide Judgment and order dated 21.02.2023 passed by the
learned Special Judge under POCSO Act, 2012, Gr. Bombay in
POCSO Case No.428 of 2017 is suspended and the applicant is
directed to be released on bail on executing P.R. Bond in the
sum of Rs.25,000/- with one or more sureties in the like
amount;
iii. The applicant shall report the concerned Police Station
once in six months on first Saturday of the month between
11.00 a.m. to 1.00 noon till final disposal of the appeal;
iv. Interim Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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