3-ia-2145-2146-2021.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL SIDE APPELLATE JURISDICTION

INTERIM APPLICATION NO.2145 OF 2021

WITH

INTERIM APPLICATION NO.2146 OF 2021

IN

CRIMINAL APPEAL NO. 715 OF 2021

Mr. Anwar A. Idrisi

..

Applicant.

v/s.

The State of Maharashtra & Another

..

Respondents.

Mr. Satyendra Kumar Pandey, for the Applicant in both the Appeals..

Mr. H. J. Dedhia, APP for Respondent No.1-Staten in both the Appeals.

Ms. Savita Yadav, for Respondent No.2 in both the Appeals.

CORAM: PRAKASH D. NAIK, J.

DATED : 25^th FEBRUARY, 2022.

PER COURT

:

These applications are preferred by the Applicant, seeking

suspension of sentence and grant of bail, pending Criminal Appeal No.715

of 2021. Applicant is convicted vide judgment and order dated 26^th

February, 2021 passed by Special Judge, under POSCO Act. Applicant has

been convicted for the offences punishable under Section 376 of Indian

Penal Code read with Sections 4, 8 & 12 of Protection of Children from

Sexual Offences Act, 2012 (POSCO Act). He is sentenced to undergo

imprisonment for 3, 10 and 5 years respectively.

2

The alleged incident had occurred on 27^th October, 2017.

Victim is a minor child. She went to the cycle shop for repairs of the cycle.

Accused was sitting in auto-rickshaw. Accused called the victim in the

S.R.JOSHI

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SMITA

RAJNIKANT

JOSHI

Digitally signed

by SMITA

RAJNIKANT

JOSHI

Date:

2022.03.01

16:45:03 +0530

3-ia-2145-2146-2021.doc

auto-rickshaw and subjected her to sexual assault. Victim returned home

and informed about this to the complainant and her mother. Complainant

went to the spot along with the victim. One person was running from the

place of incident. Member of public informed the complainant that he is

the accused. Accused was taken to the police station. FIR was registered.

Accused was arrested. On completing the investigation, charge-sheet was

filed.

3

Learned Advocate for the Applicant submitted that, case is

false. Applicant is not a person who allegedly subjected the victim to

sexual assault. There is no evidence of identification. Incident had

occurred in the public place which is un-believable that such incident can

happened at the public place.

4

Evidence of PW-1 & 2 is contradictory. Accused was identified

on the basis of photographs. There was no identification parade. There is

no medical examination. Member of public who has informed the

complainant that Accused is present who had subjected the victim for

sexual assault, was not examined. Mother of victim was not cross

examined. Medical Officer does not support the prosecution case. Medical

examination report indicates that there are no signs of the sexual assault.

Applicant is in custody for a period of four years. There are no criminal

antecedents against the Accused.

5

Learned APP submitted that in the nature of act attributed to

the Accused, there can’t be any medical evidence. Trial Court has

considered this aspect. Trial Court has observed that medical evidence

has given reference to the possibility of touching her private part. There is

no evidence to dis-believe the version of victim and the complainant.

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6

Learned Advocate for Respondent No.2 supported the

submissions of learned APP. Accused has been convicted for the serious

offence.

7

The alleged incident had occurred on 27^th October, 2017.

Victim had allegedly visited cycle shop for repairing cycle. One person was

sitting in auto-rickshaw, who had subjected her to sexual assault.

According to PW-1 (Complainant), victim had disclosed her about the fact

that Accused had touched her private part. Complainant and the victim

then went to the place of incident. Victim is a daughter of her brother-in-

law. The member of public stated that Accused is running from the place

of incident. She further stated that Accused then brought to the Police

Station. Although there is reference of member of public gathered at the

spot and the acc