Bombay High Court
Wajid Harun Shaikh vs State Of Maharashtra And Anr on 15 October, 2025
Author: R.N.Laddha
Bench: R.N.Laddha
Digitally
signed by
CHITRA
CHITRA SANJAY
SONAWANE
2025:BHC-AS:45058 SANJAY
SONAWANE Date:
2025.10.15
20:01:20
+0530
Chitra Sonawane. 55-IA-2889-2025.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Interim Application No.2889 of 2025
In
Criminal Appeal No.800 of 2025
Wajid Harun Shaikh
Aged: 43 yrs, Indian Inhabitant,
Add: Room No.16, F-Chawl,
Radha Krishnan Nagar,
Andheri Kurla road, Jarimari,
Mumbai-400 072.
(At present lodged in Nashik Road
Central Prison) ... Applicant/Org Accused.
Vs.
1) The State of Maharashtra
(through Sakinaka Police Station
CR No.258 of 2017)
2) XYZ
(through Sakinaka Police Station,
CR No.258/2017) ... Respondent.
---
Mr Afzal Payak for the applicant.
Mr Arfan Sait, APP for the respondent / State.
Ms Aishwarya Sharma for respondent No.2 (through Legal
Aid).
PSI Sopan Bhagwat Wadkar, Sakinaka Police Station.
---
Coram : R.N.Laddha, J.
Date : 15 October 2025.
P.C.:
Heard Mr Afzal Payak, learned Counsel appearing on
behalf of the applicant, Mr Arfan Sait, learned Additional
Page 1 of 7
__________________________________________________
15 October 2025
::: Uploaded on - 15/10/2025 ::: Downloaded on - 15/10/2025 21:58:59 :::
Chitra Sonawane. 55-IA-2889-2025.docx
Public Prosecutor representing respondent No.1/ State, and Ms
Aishwarya Sharma, learned Counsel appointed for respondent
No.2.
2. The gravamen of the prosecution's case is that, in January
2017 and February 2017, the applicant engaged in sexual
intercourse with the victim, aged about sixteen years at the
relevant time, thereby committing the offence of rape. It is
further alleged that the victim became pregnant as a
consequence of the said acts. Pursuant to these allegations, an
FIR was lodged under Sections 376(2)(n) and 506(2) of the
Indian Penal Code (IPC) and for the offences punishable under
Sections 4, 6, 8 and 12 of the Protection of Children from
Sexual Offences Act (POCSO) by Sakinaka Police Station,
Mumbai, and investigation was carried out. During trial, the
prosecution examined 17 witnesses in support of its case. Upon
appreciation of the oral and the documentary evidence
adduced, the learned trial Court was satisfied that the
prosecution had established the guilt of the applicant.
Consequently, by judgment and order dated 5 July 2025, the
applicant was convicted and sentenced to suffer rigorous
imprisonment for 10 years and a fine of Rs.50,000/- with
default stipulations for offence punishable under Section 376(2)
(n) IPC, and rigorous imprisonment of 2 years and fine of
Page 2 of 7
__________________________________________________
15 October 2025
::: Uploaded on - 15/10/2025 ::: Downloaded on - 15/10/2025 21:58:59 :::
Chitra Sonawane. 55-IA-2889-2025.docx
Rs.500/- for the offences punishable under Section 506(2) of
the IPC with default stipulations. Since the punishment was
imposed under Section 376(2)(n) of the IPC, no separate
sentence was imposed on the applicant for the offence
punishable under Section 4, 6, 8 and 12 of the POCSO Act.
Aggrieved thereby, the applicant preferred an appeal before this
Court and filed the present application seeking suspension of
the sentence and release on bail.
3. Mr Afzal Payak, learned Counsel appearing on behalf of
the applicant, has assailed the conviction on multiple grounds,
primarily contending that the prosecution has failed to establish
the age of the victim beyond reasonable doubt, sine qua non for
invocation of the provisions of the POCSO Act. It is submitted
that two birth certificates are placed on record, which are
mutually contradictory. While one certificate indicates that the
victim was a minor at the time of the alleged incident, the other
unequivocally reflects that she had attained the age of majority.
In such circumstances, it is argued that the benefit of doubt
ought to have been extended to the applicant.
4. The learned Counsel further submits that the trial Court
erred in placing reliance upon the ossification test to determine
the age of the victim, and accepted a margin of error merely six
Page 3 of 7
__________________________________________________
15 October 2025
::: Uploaded on - 15/10/2025 ::: Downloaded on - 15/10/2025 21:58:59 :::
Chitra Sonawane. 55-IA-2889-2025.docx
months, which is contrary to the settled legal position. Reliance
is placed on the judgment of the Supreme Court in Jaya Mala
Vs Home Secretary, Government of J & K (1982)2 SCC 538,
wherein it was held that the ossification test carries an inherent
margin of error of two years on either side.
5. It is also contended that the trial Court failed to
appreciate material contradictions and procedural irregularities
in the investigation, particularly in relation to the collection,
preservation, and transmission of DNA samples. The learned
Counsel submits that there were glaring lapses in the chain of
custody and handling of forensic evidence, which rendered the
DNA analysis unreliable and legally untenable. Further
discrepancies in the testimonies of prosecution witnesses have
not been adequately addressed, thereby vitiating the evidentiary
value of the DNA report. It is also brought to the attention of
this Court that the applicant has already undergone
incarceration for a period of 8 years and 5 months out of the
10-year sentence imposed upon him.
6. Mr Arfan Sait, learned Additional Public Prosecutor
representing respondent No.1/ State and Ms Aishwarya
Sharma, learned Counsel appearing for respondent No.2,
opposing the applicant's request, emphasise the gravity of the
Page 4 of 7
__________________________________________________
15 October 2025
::: Uploaded on - 15/10/2025 ::: Downloaded on - 15/10/2025 21:58:59 :::
Chitra Sonawane. 55-IA-2889-2025.docx
offence. They contend that the evidence on record strongly
supports the prosecution's case and does not warrant
suspension of the sentence and the applicant's release on bail.
7. This Court has given anxious consideration to the rival
contentions and perused the record.
8. In Bhagwan Rama Shinde Gosai Vs State of Gujarat 1, the
Hon'ble Supreme Court observed as follows:
"3. When a convicted person is sentenced to a
fixed period of sentence and when he files an
appeal under any statutory right, suspension of
sentence can be considered by the appellate court
liberally unless there are exceptional
circumstances. Of course, if there is any statutory
restriction against suspension of sentence it is a
different matter. Similarly, when the sentence is
life imprisonment the consideration for
suspension of sentence could be of a different
approach. But if for any reason the sentence of a
limited duration cannot be suspended every
endeavour should be made to dispose of the
appeal on merits more so when a motion for
expeditious hearing of the appeal is made in such
cases. Otherwise the very valuable right of appeal
would be an exercise in futility by efflux of time.
When the appellate court finds that due to
practical reasons such appeals cannot be disposed
of expeditiously the appellate court must bestow
1
(1999) 4 SCC 421.
Page 5 of 7
__________________________________________________
15 October 2025
::: Uploaded on - 15/10/2025 ::: Downloaded on - 15/10/2025 21:58:59 :::
Chitra Sonawane. 55-IA-2889-2025.docx
special concern in the matter of suspending the
sentence so as to make the appeal right,
meaningful and effective. Of course, appellate
courts can impose similar conditions when bail is
granted."
9. Similarly, in Atul Vs State of Madhya Pradesh2, the
Hon'ble Supreme Court observed as follows:
"Before parting with order, we must note here
that notwithstanding several decisions of this
Court holding that when there is a fixed term
sentence and especially when the appeal is not
likely to be heard before completing entire
period of sentence, normally suspension of
sentence and bail should be granted. We find that
in several deserving cases, bail is being denied.
Such cases should never be required to be
brought before this Court."
10. In the present case, the applicant has undergone a
significant term of his sentence, and the appeal challenging the
conviction has been filed in 2025 and is unlikely to be heard
immediately. If, at this juncture, the relief is denied, the
applicant is likely to complete the entire term of the sentence
before the appeal is heard. In this backdrop, a case is made out
for grant of suspension of sentence pending the appeal and
grant of bail. Hence, the following order:
2
Cri.Appeal No.579 of 2024 dt.2/2/2024.
Page 6 of 7
__________________________________________________
15 October 2025
::: Uploaded on - 15/10/2025 ::: Downloaded on - 15/10/2025 21:58:59 :::
Chitra Sonawane. 55-IA-2889-2025.docx
ORDER
(i) The sentence imposed upon the applicant vide
judgment and order dated 5 July 2025 in Special
POCSO Case No.279 of 2017, is suspended during
the pendency of the appeal, subject to the applicant
executing a PR Bond of Rs.25,000/- and furnishing
one or more sureties in the like amount.
(ii) The applicant shall refrain from entering the
jurisdiction of the concerned Police Station where
the victim resides and making contact, in any
manner, with the victim and her family members.
(iii) The applicant shall inform and update the
Investigating Officer about his contact number and
address.
11. The interim application stands disposed of
accordingly.
[R.N. Laddha, J.]
__________________________________________________
15 October 2025
