IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION INTERIM APPLICATION NO. 1024 OF 2021 IN CRIMINAL APPEAL NO.34 OF 2021 Narbahadur Kalesingh Damai @ Ramsing …Applicant/

Appellant Versus State of Maharashtra & Anr. …Respondents Ms. Anjali Patil, Advocate for the Applicant/Appellant.

Mr. S. H. Yadav, APP for the Respondent No.1 – State. Ms. Manisha Deokar, Advocate for Respondent No.2.

CORAM : PRAKASH D. NAIK, J.

DATE : 11^th JANUARY, 2022 PER COURT :

1. This is an application for suspension of sentence and grant of bail during the pendency of Criminal Appeal No.34 of 2021 preferred by the applicant challenging the judgment and order dated 24^th November, 2020 passed by the learned Special Judge under the POCSO Act, convicting the applicant for offence under Section 376(2)(i)of Indian Penal Code (for short “IPC”) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’).

2. The case of the prosecution is that the victim is Digitally signed by SAJAKALI S LIA YJ AA KK AA TLI L JAIY MA AK DA AT R Sajakali Jamadar

1 of 7 JAMADAR Date:

2022.01.12

15:02:38 +0530 minor girl aged about 12 years at the time of of incident. On 6^th July, 2017, the relative of the complainant had expired and the post funeral rites were to be performed on 12^th July, 2017. The victim and her father had attended the said rites. They returned home. The victim was found in disturbed state of mind. The complainant made inquiry with her. The victim had disclosed to her mother that the accused had sexually assaulted her by putting finger in her private part. The First Information Report (for short ‘FIR’) was registered. The victim was taken for medical examination. The accused was arrested. The statements of the victim was recorded under Sections 161 and 164 of Cr.P.C. On completing investigation, charge-sheet was filed.

3. The trial proceeded. The prosecution examined about 8 witnesses. The applicant was convicted for the aforesaid offences. He was sentenced to undergo rigorous imprisonment for 15 years and 5 years respectively on both the counts. The sentences were directed to run concurrently. 4. Learned Advocate for the applicant submitted that there is no evidence to convict the applicant for the aforesaid offences. There is variation in statements of the victim recorded under Sections 161 and 164 of Cr.P.C. The medical evidence does not support the prosecution case. The identity of the applicant/accused is under the clouds of suspicion. It was not possible to commit such an act at the residential premises, where several other persons were present for attending the post funeral rites. The name of the accused was disclosed by the cousin of the victim. There was no proper identification of the accused. No parade was conducted. The applicant was on bail during the pendency of trial. He has not misused the facility of bail. The applicant is in custody from 24^th November, 2020. The appeal may not come up for hearing within short span of time. Hence, sentence of imprisonment may be suspended and the applicant be directed to be released on bail.

5. Learned APP submitted that the victim was minor. There is no reason to disbelieve her version. Victim was subjected to sexual assault by the accused. The offence is proved beyond doubt. The victim and the complainant had supported the prosecution case.

6. Learned Advocate representing the respondent No.2 submitted that there is sufficient evidence against the applicant. The victim had no reason to falsely implicate the applicant. She was minor. Small infirmities in the evidence does not affect the prosecution case. The presumption under the POCSO Act supports the case of the prosecution. The offence is of serious nature.

7. During the pendency of trial, this Court had granted bail to the applicant/accused by order dated 18^th June, 2018, on the ground that there is variation in the statements under Sections 161 and 164 of Cr.P.C. The Medical Officer had opined that there w