Bombay High Court
Nitin Arjun Jadhav vs The State Of Maharashtra And Anr on 13 March, 2023
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2439 OF 2022
IN
CRIMINAL APPEAL NO.737 OF 2022
Nitin Arjun Jadhav .. Applicant
Versus
The State of Maharashtra & Anr. .. Respondents
...
Mr.Mohansinh Rajput for the Applicant.
Mr.S.R.Agarkar, A.P.P. for the State.
Mr.Yashodeep Deshmukh with Ms.Vaidehi Pradeep for the
Respondent No.2.
...
CORAM: BHARATI DANGRE, J.
DATED : 13th MARCH, 2023
P.C:-
1. The present application is taken out by the
Appellant/Applicant, seeking suspension of sentence and his
release on bail, during the pendency of the Appeal instituted
by him, wherein he has called in question the Judgment
delivered by the learned Special Judge, Satara in POCSO
Special (Child) Case No.54 of 2018 on 05/07/2022.
By the said Judgment, the Applicant is convicted for the
offences punishable under Sections 5(1) and 6 of the POCSO
Act, 2012 and sentenced to suffer R.I. for 10 years with fne of
Rs.5,000/-, in default to suffer S.I. for 3 months.
M.M.Salgaonkar
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As far as the charge under Sections 363, 366 and 376(2)
(i)(n) of the IPC is concerned, there is no clear-cut fnding of
his acquittal, but the learned Special Judge has recorded that
the punishment under Section 6 of the POCSO Act, 2012 is
more effective in nature and, hence, there is no sentence
imposed.
The legality and propriety of such an observation in the
impugned Judgment, though not specifcally challenged by the
prosecution, deserve a consideration at the time when the
Appeal will be heard.
2. The Appellant face a charge of removing a minor girl,
aged 15 years, from lawful guardianship, on a promise of
marriage. On removing the girl from the lawful custody, her
custody was retained by him from 30/03/2018 to 28/04/2018
and he is charged of repeatedly committing rape on the girl,
thereby attracting Section 376(2)(i)(n) of IPC.
3. On being charged for the aforesaid offence, the victim girl
herself has stepped into the witness box and she categorically
deposed that she became acquainted with the Appellant, as he
used to come on cite for work of a house of her cousin uncle,
which was being undertaken in front of her house. She
categorically deposed that the acquaintance turned into a love
affair and the Appellant gave her a new mobile with SIM card
on which, they used to establish contact with each other. He
assured that he will marry her.
M.M.Salgaonkar
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As per the victim herself, she accompanied the
Appellant, when he assured that he will marry her. She was
taken to his village and made to stay there from 30/03/2018 to
28/04/2018, when she was taken to temple, probably for the
purpose of solemnization of marriage, but was required to go to
Lonand police station, as her family members lodged a
complaint.
4. Admittedly, the victim girl is minor, but it can be seen
that from 30/03/2018 to 28/04/2010, till she was brought to
the police station, she continued to reside with the Appellant
and his family and she narrated to the Medical Offcer, during
her medical examination, that on the particular date, since the
quarrel was ensued in the house by her grand-mother, she left
with the Appellant and continued to reside with him alongwith
his parents for a period of one month and during the said
period, they had sexual relations for seven to eight times. She
also categorically disclosed to the Medical Offcer that it was
not forcible. The last date on which they established sexual
relationship was 26/04/2018.
The above aspect is deposed by the Medical Offcer i.e.
P.W.4 and she categorically corroborated the fact that the
victim was subjected to sexual intercourse. She deposed that
there was no fresh injuries, but opined that the possibility of
rape cannot be ruled out. Undisputedly, the victim girl was 14
years and 7 months on the date when the incident took place
and is a minor.
M.M.Salgaonkar
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5. The learned Special Judge has recorded that she being a
minor, her consent was immaterial. This aspect defnitely
warrants consideration as the consent of a girl below 18 years,
will assume no signifcance as far as the offnece under the
POCSO Act is concerned. However, the fact that she continued
to reside with the Appellant for a period of almost one month
and she never made an attempt to escape herself from the
house of the Appellant or lodge a complaint, are the important
circumstances, which must be appreciated, in the wake of the
decision in the case of S.Varadarajan Vs. State of Madras1.
6. Considering the fnding recorded in the impugned
Judgment and the fact that the Appellant at the relevant time
was aged 26 years and now informed to be married and so is
the victim, I deem it appropriate to suspend the sentence and
release the Appellant on bail. Hence, the following order.
: ORDER :
1. The interim application is allowed.
2. The conviction of the Appellant in Special (Child) Case
No.54 of 2018 is hereby suspended.
2. The Appellant be released on bail and he shall abide by
the same terms and conditions imposed on him, while he was
released on bail, subject to furnishing a fresh bail bond within
a period of four (4) weeks from today.
( SMT. BHARATI DANGRE, J.)
1 (1965) 1 SCR 243
M.M.Salgaonkar
