[Cites 6, Cited by 0]
Bombay High Court
Shahrukh Alimulla Shaikh vs The State Of Maharashtra And Anr on 9 January, 2026
2026:BHC-AS:897 64-IA-3839-2025.DOC
Rekha Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 3839 Of 2025
IN
CRIMINAL APPEAL NO. 1154 OF 2024
Shahrukh Alimulla Shaikh ...Applicant
Versus
The State of Maharashtra and Anr. ...Respondents
Mr. Vishal Deshpande, for the Applicant/Appellant.
Mr. C.D. Mali,APP, for the Respondent-State.
PSI Usha Khose, MHB Colony Police Station, Mumbai, present.
CORAM: R. M. JOSHI, J.
DATED: 9th JANUARY, 2026.
PC:-
1. This application is for suspension of sentence and
enlargement of the appellant / accused on bail in connection with
Judgment and Order dated 22 nd August, 2024, passed in POCSO
Spl. Case No. 91 of 2018, whereby the appellant is convicted for
the offence punishable under Section 376D of the Indian Penal
Code and under Sections 4,6, 8 and 12 of Protection of Children
from Sexual Offences Act, 2012 ( for short "POCSO Act") and
sentenced to suffer rigorous imprisonment of 20 years.
REKHA
PRAKASH
PATIL
Digitally signed
by REKHA
PRAKASH PATIL
Date: 2026.01.09
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2. Learned Counsel for the appellant submits that after the
arrest of the appellant in connection with this crime, for last 8
years he is in jail. It his submission that from the evidence on
record, it cannot be said that the offence has been proved against
the appellant beyond reasonable doubt. In order to support this
submission, he drew attention of the Court to the cross-
examination of the victim as will as informant i.e. the mother of
the victim. It is his submission that the victim has admitted in the
cross-examination about recording the report to the police as per
the say of her aunt so also of the fact of her aunt giving history to
the Medical Officer as accepted by PW01. He also drew attention
of the Court to the evidence of PW-4, who is the auto driver and
claims to have been to the spot just after occurrence of the
incident. It is his submission that even to this witness no
complaint was made by the victim with regard the alleged sexual
assault caused by the accused on her. It is his further submission
that the medical evidence does not support the theory of the
prosecution with regard to the commission of rape by three
accused persons in an auto rickshaw, in view of the fact that there
are no injuries found on the person of the victim. It is submitted
that though the hymen is shown to be ruptured, there is nothing to
show that it was a fresh injury. It is his submission that the
appellant has no criminal history behind him.
3. Learned APP and learned Counsel for the respondent No.2
opposed the Application by relying upon testimony of the victim,
which according to them, is reliable. It is submitted that there is
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no delay in lodging of the FIR as the same is lodged on the next
day of the occurrence of the incident. Reference is also made to the
evidence of PW-14, who has proved the birth record of the victim,
which according to them, indicate that she was minor at the
relevant time. Reference is also made to the PW-9 Medical Officer,
who had clinically examined the victim. It is their submission that
having regard to serious nature of offence, this is not a case for
enlargement of appellant on bail.
4. In view of the settled position of law, if the appellant is in
position to make out a prima facie case qua success in the Appeal,
he would be entitled to be enlarged on bail. In this case prima facie
consideration of evidence on record indicates that the First
Information Report ('FIR') came to be lodged at the instance of
aunt of the victim so also history was given to the Medical Officer
by her. Similarly, the first informant admits that victim was in love
with the friend of the accused and in order to teach lesson to them,
the report came to be lodged. In this backdrop, if the medical
evidence is considered, it becomes practically to difficult to accept
the case of the prosecution that a gang rape was committed in an
auto rickshaw without causing any injuries on the person of the
victim. It is further gets support from the testimony of PW-4 auto
driver, though went to the spot, the victim failed to make any
complaint with regard to the incident. The statement of the auto
driver with regard to the confession given by the accused is
falsified being improvement, which has been duly proved through
the Investigating Officer- PW 12.
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5. Having regard to the aforestated facts, it can be said that the
appellant has fair chance of success in the Appeal. He is behind
the bar for the last 8 years with no other crime recorded against
him. He is not likely to flee from justice. There is no possibility of
this Appeal being taken up hearing in short period of time. Hence,
the following order.
ORDER
(a) The Interim Application is allowed.
(b) The substantive sentence imposed against the
Applicant/ Appellant by Judgment and Order dated
22nd August, 2024 passed in POCSO Spl. Case No. 91
of 2018 stands suspended till decision of the Appeal.
(c) The Applicant/Appellant be enlarged on bail on
furnishing P.R. bond of Rs.15,000/- with one surety in
the like amount.
(d) The Applicant/Appellant not to enter the jurisdiction
of MHB Colony Police Station, Mumbai, till the
decision of the Appeal.
(e) The Applicant/Appellant not to contact the victim or
his family members in any manner whatsoever.
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64-IA-3839-2025.DOC
(f) Any breach of aforestated condition shall result into
forthwith cancellation of bail.
6. In view of the above, Interim Application No. 3839 of 2025
stands disposed of.
7. It is clarified that the above observations are made on prima
facie consideration of the material on record and the same shall
not bind the parties during the final hearing of the Appeal.
(R. M. JOSHI, J.)
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