Sopan S/O. Vitthal Kajalkar vs The State Of Maharashtra
2023 Latest Caselaw 2734 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                  910 CRIMINAL APPLICATION NO.3503 OF 2022
                             IN APPEAL/524/2020


                                   SOPAN VITTHAL KAJALKAR
                                           VERSUS
                  THE STATE OF MAHARASHTRA AND ANOTHER
                                             ...
                          Mr. P.P. More, Advocate for applicant
                    Mrs. V.S. Choudhari, APP for respondent No.1
           Mr. V.P. Savant, Advocate (appointed) for respondent No.2
                                             ...

                                        CORAM :     SMT. VIBHA KANKANWADI AND
                                                    Y.G. KHOBRAGADE, JJ.

                                        DATE :      21st MARCH, 2023


PER COURT :



1              Present application has been filed for suspension of substantive

sentence imposed on the applicant by learned Special Judge, under POCSO

Act, Jalna on 11.08.2020 in Special Case (Child) No.26/2019 after holding

him guilty for committing an offence punishable under Section 376(2)(i),

341, 452 of the Indian Penal Code, 1860 and under Section 4 of the

Protection of Children from Sexual Offences Act, 2012. He has been

sentenced thus -

                                             2                                Cri.Appln_3503_2022



        1)       Accused Sopan Vitthal Kajalkar is convicted for the offences

punishable under Sections 376(2)(i), 341 and 452 of the Indian Penal Code as well as for the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012.

2) He is sentenced to suffer imprisonment for life which shall mean imprisonment for the remainder of his natural life and to pay fine of Rs.10,000/- (Rupees Ten Thousand only) in default of payment of fine, he shall suffer rigorous imprisonment of 3 (three) years for the offence punishable under Section 376(2)(i) of the Indian Penal Code.

3) He is sentenced to suffer simple imprisonment for a term of 1 (one) month and shall pay fine of Rs.500/- (Rupees Five Hundred only), in default of payment of fine he shall suffer simple imprisonment of 10(ten) days for the offence punishable under Section 341 of the Indian Penal Code.

4) He is sentenced to suffer simple imprisonment of 5 (five) years and to pay fine of Rs.5,000/- (Rupees Five Thousand only), in default of payment of fine, he shall suffer simple imprisonment of 1 (one) year for the offence punishable under Section 452 of the Indian Penal Code.

        5)       ................


        6)       All the sentences shall run concurrently.


2              Heard learned Advocate Mr. P.P. More for the applicant, learned

APP Mrs. V.S. Choudhari for respondent No.1 and learned Advocate Mr. V.P.

                                        3                                Cri.Appln_3503_2022



Savant for respondent No.2.


3              With the help of learned Advocate for the applicant and learned

APP we have gone through the evidence that was before the learned Trial

Judge.

4 The victim has deposed in this case. She has stated her age and

the birth date in her examination-in-chief, however, it appears that First

Information Report was silent in respect of her birth date. Any way, she has

stated her age as 13 years on the date of incident. The learned Advocate

appearing for the applicant has pointed out the testimony of PW 5, who was

working as Village Secretary to Panchayat Samiti, Badnapur and had issued

the birth certificate i.e. the certified copy Exh.34. In her cross-examination

she has stated that she was not aware about who had carried out the entries

in the original birth register. She was not the said person and in the original

birth register there is no stamp regarding designation of the person i.e. by

whom that entry was taken. The record is also silent in respect of place of

birth of the victim. On the basis of the said cross-examination it was tried to

be submitted that the age of the girl is not proved, so also the Medical Officer

in respect of age had stated that she had referred the victim to Radiologist for

determination of age. However, he had not received the report from the

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Radiologist. It was then tried to be submitted that the age of the girl is not

established beyond reasonable doubt. The learned Trial Judge ought not to

have held the victim as child as defined in Section 2(D) of the POCSO Act. It

has been further submitted on the basis of the testimony of the victim that

though she had told that it was the forcible sexual intercourse by the accused,

the medical report and the testimony of PW 4 Dr. Smita Gawade is not

corroborating the ocular evidence. The Medical Officer has in categorical

term stated that she had not found any injuries on the person of the victim

when she was examined. It was stated in the examination-in-chief by the

Medical Officer that except the old hymen rupture there was no other

symptom to show that there was forcible sexual intercourse on the victim.

Therefore, when the ocular evidence is not corroborated by the medical

evidence, benefit ought to have been given to the accused. Another fact,

which was not considered by the learned Special Judge, was that there was

enmity or quarrel with the father of the victim and the accused and,

therefore, there was reason for implication of the accused for the informant

and her family members. With this evidence and the other points, those the

applicant wants to canvass at the time of final hearing, he need not be kept

behind bars. As it will take long time to take up the appeal he should be

released on bail. His wife and minor daughter are dependent on him. It was

also then submitted that taking into consideration the age of the

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appellant/applicant the appeal be expedited.

5 Per contra, the learned APP strongly opposed the application and

submitted that the learned Trial Judge has considered each and every aspect

involved in the matter and the accused has been held guilty. When a well

reasoned Judgment is given, then it need not be interfered with any manner

i.e. even for considering the suspension of sentence.

6 At the outset, we would make it very clear that for a limited

purpose we are considering the evidence. In other words, we will have to see

whether case is made out for suspension of sentence when there is an

evidence on record and also the reasoned Judgment. Here, the testimony of

the victim would show that she was 13 years of age and she has given her

birth date. Though it appears that in First Information Report she had not

mentioned the birth date, but certainly she had mentioned her age. First

Information Report is not an encyclopedia, but then at the time of collection

of evidence the Investigating Officer has collected the birth certificate. If the

birth certificate is issued by the local authority/the appropriate Local Body

under the Registration of Births and Deaths Act, 1969 and the rules framed

thereunder, then it would become the public document. Now, as regards the

original Birth Register is concerned, certain things have been brought on

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record in the cross-examination of PW 5 Savita, who had issued the certified

copy of the original birth register. Definitely, it would be considered at the

time of final hearing, but prima facie we will have to give, its due weightage

to the birth certificate. Secondly, as regards the medical evidence is

concerned, no doubt, in the medical examination report as well as testimony

of PW 4 Dr. Smita Gawade, she has stated about the fact that she had not

seen any external injury on the person of the victim, however, she had found

with the hymen of the girl was ruptured and she has termed it as "old hymen

rupture". On the basis of what she had categorized it as "old" is required to

be considered. But apparently her cross-examination is silent on this point.

We will also have to consider as to what would be the effect of discrepancy in

the ocular evidence and medical evidence, which evidence will have to be

given importance. But certainly, now, there is evidence against the present

appellant, and a competent Court has come to the conclusion that the

appellant has committed one of the heinous crimes against a minor girl. It

can be further seen that the appellant was never released on bail since the

date of his arrest. Under such circumstance, we do not find this to be a fit

case where the sentence should be suspended. It deserves to be rejected.

7 As regards the oral prayer by the learned Advocate for the

applicant for expeditious hearing of the matter is concerned, we will have to

7 Cri.Appln_3503_2022

put it on record that at present we are dealing with the jail appeals of 2015

and 2016. There are about 280-290 jail appeals and even as regards the

appeals which have been already expedited wherein the appellants are in jail

are 30 in number. So, we may advice the applicant to make appropriate

application after one year. Application stands rejected.

( Y.G. Khobragade, J. ) ( Smt. Vibha Kankanwadi, J. )

agd