Bombay High Court
Akash S/O. Devidas Ingle vs State Of Mah. Thr. Pso, Ps Ural Tq. ... on 22 January, 2024
Author: M.W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:914
1 24-Cri.Appeal 610.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 993 OF 2023
IN
CRIMINAL APPEAL NO. 610 OF 2023
Akash S/o Devidas Ingle
..VS..
State of Maharashtra through PSO, P.S. Ural, Tq. Balapur, Dist. Akola & Anr.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. A.S. Londhe, Advocate for applicant/appellant.
Mr. H.D. Futane, APP for respondent No.1/State.
Ms. Shubhada Phaltankar, Advocate (appointed) for respondent
No.2.
CORAM : M.W. CHANDWANI, J.
DATED : JANUARY 22, 2024
Heard.
2. The appellant seeks suspension of substantive
sentence in Special Case No.52/2020 passed by the Extra
Joint District Judge and Additional Sessions Judge,
Akola.
3. The appellant has been convicted by the learned
Additional Sessions Judge by judgment and order dated
08.06.2022 for the offences punishable under Sections
363 and 366 of the Indian Penal Code (for short 'IPC')
and sentenced to suffer rigorous imprisonment for seven
years along with fine of Rs.7,000/- in default to suffer
simple imprisonment for the period of three months. The
appellant is also further convicted for the offences
2 24-Cri.Appeal 610.2023
punishable under Sections 376 of the IPC and Sections 3
and 4 and 5(j)/6 of the Protection of Children from
Sexual Offences Act, 2012 (for short the 'POCSO Act')
and he was sentenced to suffer ten years rigorous
imprisonment along with fine amount of Rs.10,000/- in
default to suffer simple imprisonment for the period of
six months.
4. The learned Counsel for the appellant invited my
attention to the evidence of the victim, who was sixteen
years old. He further submits that the marriage proposal
was sent twicely by appellant to the family of the victim,
which came to be rejected. It is also contended that the
victim all of way went along with the accused with her
own will and they stayed together for some days where
the alleged sexual intercourses taken place. Thereafter,
when on the death of her father she came back to home,
at the instance of family members of the victim, the
aforesaid offence has came to be registered. The
contention is that the victim was of understanding age,
she has not raised alarm while accompanied with the
appellant. According to him, there was love affair
between the victim and the appellant, the victim willingly
eloped with the appellant. The appellant has good case
on merit, hence, prayed for suspension of sentence.
5. Per contra, the learned APP vehemently objected
the application on the ground that at the time of alleged
incident, the victim was minor therefore, consent of the
3 24-Cri.Appeal 610.2023
victim is immaterial hence, sought rejection of the
application.
6. I quite see the provisions of POCSO Act wherein
the consent of minor is insignificant. But, certainly her
consent for offence punishable under Section 363 of the
IPC would definitely be significant. Since, she was of
understanding age, she could have raised alarm if she
was being taken to various places. The record shows that
victim resided with appellant for some time.
7. Record shows that there was marriage proposal
from the appellant to marry the victim which was refused
by the father of the victim. The victim willingly eloped
with the appellant. Prima facie, a case is made out to
give thoughtful consideration to the entire evidence of
these facts at the time of hearing of appeal. Considering
the pendency, the appeal will take its own time. The
appellant has no criminal antecedents coupled with the
fact that he has convicted for the fixed term for ten years
and the fact that during the trial he was on bail and has
not misused the liberty. Hence the following order :
(i) The Criminal Application is allowed.
(ii) The execution of sentence imposed upon the
appellant on 08.06.2022 by the Additional
Sessions Judge (Special Judge) in Special Case
No.52/2020 for the offences punishable under
Sections 363, 366 and 376 of the Indian Penal
4 24-Cri.Appeal 610.2023
Code as well as Sections 3, 4 and 5(j)/6 of the
POCSO Act is hereby suspended till decision of the
appeal.
(iii) The appellant shall pay fine amount imposed by
the learned trial Court.
(iv) The appellant - Akash S/o Devidas Ingle shall be
released on bail on furnishing P.R. bond in the sum
of Rs.25,000/- with one solvent surety in the like
amount.
(v) The appellant shall remain present before this
Court at the time of final hearing of the appeal.
(vi) The professional fees of the learned appointed
Counsel for the respondent No.2 be quantified and
paid in accordance with rules.
The application is disposed of accordingly.
(M.W. CHANDWANI, J.)
Kirtak
Signed by: Mr. B.J. Kirtak
Designation: PA To Honourable Judge
Date: 23/01/2024 17:45:50
