Bombay High Court
Vinayak Shantwan Shinde vs State Of Maharashtra And Anr on 4 September, 2024
Author: Neela Gokhale
Bench: A. S. Gadkari, Neela Gokhale
2024:BHC-AS:35481-DB
sns 1-ia-139-2024-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 139 OF 2024
IN
CRIMINAL APPEAL NO. 31 OF 2024
Vinayak Shantwan Shinde,
Aged-37 years, Occu: Business,
R/a-Survey No.2, Mother Teressa Nagar
Gadital, Yerwada, Pune
(At present Yerawada Central Jail). .....Applicant
In the Matter Between :
Vinayak Shantwan Shinde,
Aged-37 years, Occu: Business,
R/a-Survey No.2, Mother Teressa Nagar
Gadital, Yerwada, Pune
(At present Yerawada Central Jail) .....Appellant
Vs.
1. The State Of Maharashtra,
(Through P. I. Yeerwada
Police Station, District-Pune)
(CR No.-65/2014).
2. XYZ
Age: 26 years,
Through P.I.Yerawada
Police Station, Pune. .....Respondents
Ms. Pooja Agarwal with Mr. Shubham Sane, i/b. Mr. Vaibhav Kulkarni, for
the Appellants.
Mr. Vinod Chate APP, for Respondent No.1-State.
Ms. Sakshee P. Chavan, Appointed Advocate for Respondent No.2-State.
CORAM : A. S. GADKARI AND
DR NEELA GOKHALE, JJ.
RESERVED ON : 30th AUGUST, 2024.
PRONOUNCED ON : 4th SEPTEMBER, 2024.
ORDER :
- (Per Dr. Neela Gokhale, J.)
1) This is an Application for suspension of sentence and releasing
the Applicant on bail during the pendency of his Appeal.
sns 1-ia-139-2024-J.doc
1.1) Applicant is the original accused in Special Child POCSO Case
No.133 of 2014. By a Judgment and Order dated 4 th December 2023, the
Additional Sessions Judge, Pune held the Appellant guilty for the offense
punishable under Sections 376 of the Indian Penal Code, 1860 (I.P.C.) and
Section 3 punishable under Section 4 of the Protection of Children From
Sexual Offences Act, 2012 ('POCSO'). The Applicant is sentenced to suffer
imprisonment for life for the offense punishable under Section 376 of the
I.P.C. along with fine of Rs.50,000/- and in default of payment of fine to
suffer three months of simple imprisonment. He has also been sentenced to
suffer imprisonment for life along with fine of Rs.50,000/- for the offense
under Section 3 punishable under Section 4 of the POCSO and in default of
payment of fine to suffer simple imprisonment for three months. Both the
sentences are directed to run concurrently.
2) Heard Ms. Agarwal for Applicant, Mr. Chate, APP for State and
Ms. Sakshi Chavan, learned Advocate appointed by the Legal Aid to
represent Respondent No.2.
3) The case of the prosecution as discerned from the Judgment
and Order of the trial Court is as follows:
3.1) Respondent No.2 ('Victim') being 16 years of age, reported on
11th February 2014 that, she was residing with her mother at Chandan
Nagar, Kharadi, Pune and studying in 9 th standard in Netaji Subash Chandra
Bose Vidyalaya, New Khadki, Airport Road, Yerwada, Pune. Her father died
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in April 2013 and she lives with her mother, who is serving as a nurse. Her
school timings were from 7 a.m. to 12 p.m. She traveled to school partly by
bus and walks rest of the way.
3.2) In December 2013, after school hours, she was accosted by the
Applicant while she was drinking water at tea stall. He tried to talk to her
and gave her his phone number. The victim was annoyed and threw away
the chit. The Applicant introduced himself as 'Vinod Shantanu Shinde'. He
followed her every day, as she returned from school, making an effort to
catch her attention. On the fatal day on 20th December 2013 at around 12
p.m., the Applicant stopped her as she was on the way, professed his love
for her and caught her hand. He insisted that, she accompany him to his
house despite her refusal. When she tried to resist, he grabbed her hand
and pulled her. The victim was terrified and didn't call for help. He then
took her to his house and raped her.
3.3) She was frightened to narrate the incident to her mother.
However, she confided in her friend, who in turn shared this with other
girls in the class. At the time of the incident, Miss.'L' a friend of the victim,
was attending a workshop at India Sponsorship Institute, Yerwada, Pune.
She shared the victim's ordeal with the social workers of the Institute, who
promptly contacted the victim's mother and informed her of the situation.
The victim's mother, accompanied by the social workers, filed a FIR with the
Police.
sns 1-ia-139-2024-J.doc
3.4) The offence was registered and the investigation commenced.
The victim was medically examined. The victim's Age/Birth Certificate was
procured from her school which ascertained that she was a minor. Her
statement was recorded under Section 164 of the Cr. P. C. and the
statements of other witnesses were also recorded by the Police. Medical
reports of chemical analysis were also collected from the Forensic
Laboratory. As all the evidence confirmed commission of alleged offence, a
charge sheet came to be filed by the Police.
4) At the very outset, Ms. Agarwal attempted to impress upon us
that, this was a case of mistaken identity and the victim had never
identified the Applicant. She said that, the victim had stated the name of
the Applicant to be one 'Vinod Shantanu Shinde' whereas the Applicant's
name was 'Vinayak Shantanu Shinde'. Ms. Agarwal also contended that, the
trial Court failed to appreciate that, the FIR was lodged under the guidance
of and in consultation with the social workers, who were Prosecution
Witnesses No.2 and 5. She also argued that, the spot of the alleged incident
was a thickly populated area, adjacent to a fish market and it is highly
improbable that a school going girl in uniform was dragged and nobody
noticed. Ms. Agarwal argued that, the medical evidence was not
appreciated in the proper perspective. Most importantly she contended
that, the prosecution failed to establish applicability of POCSO Act and that,
the victim was a minor. Ms. Agarwal finally stated that, the Applicant
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enjoyed bail throughout the trial and he had not misused the liberty. She
thus urged us to suspend the sentence of the Applicant and enlarge him on
bail during the pendency of his Appeal.
5) Ms. Chavan contended that, the statements of the Victim in the
FIR was reiterated by her in her statement recorded under Section 164 of
the Cr. P. C. as well as in her deposition during the trial. P.W.3 also proved
the seizure of clothes and P.W.4 Miss.'L', the victim's friend deposed
regarding the victim narrating the incident about the sexual assault. Ms.
Chavan pointed out that, the School Leaving Certificate proved the date of
birth of the victim to be 27th December 1997 and hence, the minority of the
victim was established. She further drew our attention to the deposition of
P.W.8 namely, Dr. Sakshi Mundada, who deposed regarding Medical Report
of the victim which established penetrative vaginal sexual intercourse.
Thus, she prayed that, the Application be dismissed.
6) Mr. Chate strongly supported the case of the prosecution and
reinforced the arguments of Ms. Chavan.
7) In reference to the arguments of Ms. Agarwal regarding
mistaken identity of the Applicant, we perused the depositions relied by her.
There is nothing on record to demonstrate that 'mistaken identity' as a
defence was suggested to any of the witnesses in cross-examination by the
Applicant. The victim, during her examination-in-chief, testified that the
Applicant had introduced himself as 'Vinod Shantanu Shinde' and that she
sns 1-ia-139-2024-J.doc
had no prior acquaintance with him. In her cross-examination, she also
specifically deposed that, the accused in the trial was the person, who
chased her while she proceeded to walk to school and accosted her on
various occasions. There is no suggestion given by the defence to any
witnesses during trial that, the Applicant was not the person identified by
the victim as the person committing the offence. In fact, a case is tried to
be made out that, the victim was in relationship with the Applicant and she
lodged the FIR only when she learnt that, he was already married and had a
child. This demolishes the defence of the Applicant regarding mistake in
identity. In any case there was no way for the victim to know the real name
of the Applicant and she only knew him by the name that he himself had
told her. The name of the Applicant does not hold much significance in
view of the fact that, the victim has identified the Applicant. This clearly
negates the argument of the Applicant relating to the conviction being
based on mistaken identity and hence, bad in law.
8) The P.W.2 namely, Mayuri Joshi, a Social Worker working with
the India Sponsorship Institute has specifically deposed about Miss.'L'
sharing the ordeal suffered by the victim and thereafter revealing the same
to the victim's mother and accompanying her to the Police Station. Notably
disposition of Miss.'L' dispels any doubts about the incident as she
corroborates the victim's entire account. Additionally, P.W.5 namely, Kranti
Dabir, a fellow Social Worker also corroborates the statement of Mayuri
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Joshi, her co-worker confirming that they only provided guidance and
support to the victim and her mother in reporting the incident to the Police.
P.W.6 namely, Bhanudas Khandve, the in-charge Head-Master of the school,
where the victim was admitted in 5 th standard deposed regarding the
School Leaving Certificate issued by the Municipal Corporation School
No.72 (Girls'). He corroborated with the original General Register that, the
date of birth of victim is 27th December 1997. PW-8 namely, Dr. Sakshi also
deposed that, as per her clinical examination, the victim had penetrative
vaginal sexual intercourse. Upon consideration of the entire evidence, the
trial Court has concluded that, the victim's age as on the date of incident
was below 16 years.
9) In the overall conspectus of the matter, two things emerge,
firstly that the victim was a minor below 16 years of age and secondly, she
was subjected to a penetrative sexual assault.
Section 29 of the POCSO Act provides for presumption as to
certain offences under the Act. It reads as :
"Section 29: Presumption as to certain offences:- (1)
Where a person is prosecuted for committing or abetting
or attempting to commit any offence under sections 3, 5,
7 and section 9 of this Act, the Special Court shall
presume, that such person has committed or abetted or
attempted to commit the offence, as the case may be
unless the contrary is proved."
10) There is no material on record to demonstrate anything
contrary to the allegations made by the victim, supported by the testimony
sns 1-ia-139-2024-J.doc
of the witnesses examined by the prosecution. In this context, the Supreme
Court recently observed in an order in the case of Bhupatji Sartajji Jabraji
Thakor v. The State of Gujarat , (SLP (Cri.) Diary No.27298 of 2024) dated
5th July 2024 that, a life convict can be granted the benefit of suspension of
sentence only if prima facie it appears that, the conviction is unsustainable
and the convict has a high chance of succeeding in Appeal against the
conviction. The Apex Court said that, the benefit of suspension of sentence
cannot be granted to the convict, if there is nothing palpable to conclude
that, the conviction was unsustainable in law. In the present matter,
considering the evidence on record and appreciation of the same by the
trial Court, we find nothing palpable to conclude the conviction to be
unsustainable in law.
11) The Supreme Court in its recent decision in the matter of
Omprakash Sahni v. Jai Shankar Chaudhary & Anr.,1 held as under:
"33. Bearing in mind the aforesaid principles of law, the
endeavour on the part of the Court, therefore, should be to
see as to whether the case presented by the prosecution and
accepted by the Trial Court can be said to be a case in
which, ultimately the convict stands for fair chances of
acquittal. If the answer to the above said question is to be in
the affirmative, as a necessary corollary, we shall have to
say that, if ultimately the convict appears to be entitled to
have an acquittal at the hands of this Court, he should not
1 (2023) 6 SCC 123.
sns 1-ia-139-2024-J.doc
be kept behind the bars for a pretty long time till the
conclusion of the appeal, which usually take very long for
decision and disposal. However, while undertaking the
exercise to ascertain whether the convict has fair chances of
acquittal, what is to be looked into is something palpable.
To put it in other words, something which is very apparent
or gross on the face of the record, on the basis of which, the
Court can arrive at a prima facie satisfaction that the
conviction may not be sustainable. The Appellate Court
should not reappreciate the evidence at the stage of Section
389 of the CrPC and try to pick up few lacunas or loopholes
here or there in the case of the prosecution. Such would not
be a correct approach."
12) The offense held to have been committed by the Applicant is
serious. From the evidence on record it appears that, the Applicant has
taken undue advantage of a young school going girl of a tender age of
barely 16 years. He himself at the relevant time was about 26 years of age.
It is apparent that, he abused his dominant position to abuse the young
victim and ruined a promising future. The victim was made to undergo
mental as well as physical trauma of being physically mauled by the
Applicant. Since the victim is indubitably under the age of consent, the
defence of the Applicant relating to consensual relationship is of no
consequence.
13) From the observations of the Supreme Court in various
precedents it is clear that, while undertaking the exercise to ascertain
sns 1-ia-139-2024-J.doc
whether the Applicant has fair chance of acquittal, what is to be looked into
is something palpable. From the strict perusal of the appreciation of
evidence by the trial Court, we have neither found anything which is very
apparent or gross on the face of the record, nor have we found any
noticeable and perceivable error in the findings of trial Court. For this
reason, we are unable to accept the contention of Ms. Agarwal that, it
would be meaningless, improper and unjust to keep the Applicant behind
bars for a further period than that which has already undergone after
conviction till the disposal of his Appeal.
In any case, the Applicant has never suffered any incarceration
during the entire period of the trial. The Supreme Court in various decisions
has also held that, the mere fact that during the period of trial, the accused
was on bail and there was no misuse of liberty, does not per se warrant
suspension of execution of sentence and grant of bail. What is really
necessary is to consider whether reasons exist to suspend execution of the
sentence and grant of bail. We are thus not inclined to suspend the
sentence of the Applicant and grant him bail during the pendency of the
Appeal.
14) The Application is accordingly dismissed.
(DR NEELA GOKHALE, J.) (A.S. GADKARI, J.)
Signed by: Raju D. Gaikwad
Designation: PS To Honourable Judge
Date: 04/09/2024 14:11:14
