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2021 Supreme(Bom) 451
IN THE HIGH COURT OF BOMBAY
Mangesh S. Patil, J.
RAHUL SHIVPRASAD AGRAWAT - Applicant
Vs.
STATE OF MAHARASHTRA - Respondent
Cri. Appln. No. 31 of 2021 in Appeal No. 639 of 2020
Decided On : 14-1-2021
For the Applicant : A. S. Tilve
For the Respondent/State: Mrs. R. P. Gaur, APP
The court may suspend the sentence during the pendency of an appeal if there is lack of misuse of liberty and substantial grounds for doing so.
Headnote:
Protection of Children from Sexual Offences Act, 2012 - Appeal against conviction - Suspension of sentence under Section 389 of the Code of Criminal Procedure
Fact of the Case:
The appellant was convicted for offences under the Protection of Children from Sexual Offences Act, 2012, involving a minor girl less than 15 years of age. He sought suspension of sentence citing delay in lodging the FIR, lack of concrete medical evidence, and being falsely implicated due to a matrimonial dispute.
Finding of the Court:
The court found that there was enormous delay in lodging the FIR, discrepancies in medical evidence, and the possibility of false implication due to a matrimonial dispute. Considering the pendency of the appeal and lack of misuse of liberty, the court decided to suspend the sentence.
Issues: Delay in lodging the FIR, discrepancies in medical evidence, possibility of false implication, and suspension of sentence under Section 389 of the Code of Criminal Procedure.
Ratio Decidendi: The court considered the delay in lodging the FIR, discrepancies in medical evidence, lack of misuse of liberty, and the pendency of the appeal as grounds to suspend the sentence.
Final Decision: The court allowed the application and suspended the substantive sentence during the pendency of the appeal. The appellant was released on bail upon executing personal recognizance and furnishing a solvent surety.
Based on the provided legal document, the key points are as follows:
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The appellant was convicted of offences under the Protection of Children from Sexual Offences Act, involving a minor girl under 15 years of age, and sought suspension of the sentence during the pendency of the appeal (!) (!) .
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The prosecution's case involved allegations of sexual offence by the appellant, who is the minor's paternal uncle, based on the victim's statement and medical evidence indicating injury to the private part, with the injury aged approximately 48 hours at the time of examination (!) (!) .
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The appellant's defense emphasized significant delays in lodging the FIR, discrepancies in medical evidence (notably the injury age conflicting with the incident date), and claims of false implication due to a matrimonial dispute. The appellant was on bail during the trial and had not misused this liberty (!) (!) (!) .
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The court observed that there was an enormous delay in lodging the FIR, with no plausible explanation, and no immediate complaint made by the victim to any family member despite the incident occurring in the victim’s grandparents' house while they were sleeping. Medical evidence showed injuries that were 48 hours old, which conflicted with the alleged incident date, raising doubts about the veracity of the prosecution’s version (!) (!) .
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The court noted the absence of evidence of misuse of liberty and the fact that the appeal was unlikely to be heard in the near future due to the pendency of proceedings, which supported suspending the sentence (!) .
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Ultimately, the court allowed the application for suspension of the substantive sentence during the appeal’s pendency. The appellant was ordered to be released on bail upon executing personal recognizance of Rs. 25,000 and furnishing a solvent surety of the same amount, with bail to be executed before the trial court (!) (!) (!) .
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The decision emphasized the importance of considering the delays, discrepancies in evidence, and the appellant’s conduct during trial, leading to the conclusion that suspension of the sentence was appropriate under the circumstances (!) .
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JUDGMENT :
Heard.
2. In this Appeal against conviction of the applicant for the offences punishable under Section 3(b), 4, 5(m), 5(n) and 6 of the Protection of Children from Sexual Offences Act, 2012, he is seeking suspension of sentence under Section 389 of the Code of Criminal Procedure.
3. Shortly stated the prosecution case is that the prosecutrix is a minor girl, less than 15 years of age who alleged about the appellant who happens to be her paternal uncle having subjected her to sexual offence by inserting finger in her private part while she was sleeping in the house of her grant parents.
4. The learned advocate for the appellant points out that there is enormous delay in lodging the FIR. Though the incident is stated to have taken place in the night between 7-9-2013 and 8-9-2013, the FIR has been lodged on 20-9-2013. There is no plausible explanation coming forth for such delay. There is no concrete medical evidence corroborating the prosecution version. There is also material discrepancy in the medical evidence in as much one of the Medical Officers namely Dr. Patil (PW7) though has stated about having noticed injury on the private part of the victim, he has opined that the age of the injury was 48 hours. He stated to have examined her on 20-9-2013 whereas the incident had taken place more than 12 days prior thereto. He would thus submit that there is no concrete evidence to corroborate the version of the prosecutrix about sexual offence.
5. The learned advocate would then point out that there is some matrimonial dispute between the parents of the victim and he is being falsely implicated for that reason. The learned Judge has not taken into consideration these aspects and has drawn conclusion based on surmises and conjunctures.
6. Lastly, the learned advocate points out that the appellant was on bail during pendency of the trial. There are no allegations about he having misused the liberty or made any attempt to tamper the evidence. The appeal is not likely to be heard in the near future. He is ready to abide by any condition and the sentence be suspended during pendency of the Appeal. He also places reliance on the decision of the Supreme Court in the case of Bhagwan Rama Shinde Gosai and ors. vs. State of Gujarat ; AIR 1999 SC 1859.
7. The learned APP strongly opposes the Application. She points out that it is a serious offence involving a minor child. There is a special statute to meet the contingency. At this juncture there is nothing to disbelieve the version of the prosecutrix. Taking into account the fact that the appellant happens to be her paternal uncle it is highly improbable that she would come out with such false allegations.
8. The learned prosecutor would further submit that threadbare scanning of the material is not possible at this juncture. Prima facie there is medical evidence about injury to the private part and in the circumstances when the offence is heinous, the sentence may not be suspended.
9. I have carefully gone through the papers. As is pointed out, admittedly, the appellant has been on bail during pendency of the trial. There are no allegations about he having misused the liberty.
10. Besides, prima facie there is enormous delay in lodging the FIR. Pertinently, the incident is stated to have taken place in the house of the grand parents of the victim. The grandmother was very well sleeping in the house still no grievance was made by the victim to her promptly nor was any such grievance made to anybody else within reasonable time. No plausible explanation is coming forth for not disclosing the incident.
11. Similarly, though Dr. Patil (PW7) has spoken about some injury to the private part of the victim, he stated the age of the injury to be 48 hours old. He states to have undertaken such medical examination on 20-9-2013, whereas, the incident is stated to have occurred in the night intervening 7-9-2013 and 8-9-2013.
12. Considering all the aforementioned facts and circumstances and when it is writ l
