2025:BHC-AS:55941

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

INTERIM APPLICATION NO.2968 OF 2023

IN

CR. APPEAL NO.1255 OF 2023

Mainuddin Sagir Ali Shaikh …. Applicant

V/s.

State Of Maharashtra And Anr. …. Respondents

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Digitally signed

NILAM by NILAM Mr.Dileep Satale a/w Ms.Shagufa Patel, Ms.Saniya Sait,

SANTOSH SANTOSH

KAMBLE

KAMBLE Date: 2025.12.18 Mr.Vedastu Rave, Ms.Swati Panjwani, Mr.Athane Gidaye,

13:56:34 +0530

Ms.Padma Chinta, for the Applicant.

Mr.H.J. Dedhia, APP, for Respondent No.1-State.

Ms.Sangita Walke, for Respondent No.2.

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CORAM : R.M. JOSHI, J.

DATE : 16^th DECEMBER 2025

P.C:-

. This Application is for suspension of substantive sentence and enlargement of the Appellant on bail in connection with the judgment and order dated 5^th October 2021 passed in POCSO Case No.385 of 2019 whereby the Appellant/Accused is sentenced to suffer 15 years imprisonment with fine of Rs.10,000/- for the offences

punishable under Section 4 and 10 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short)

2. The learned counsel for the Appellant submits that, the Appellant was aged about 19 years at the time of the occurrence of the incident. It is his submission that he is behind bar 6 and ½ years. On merit it is argued that the statements made by the victim before the Trial Court as well as under Section 164 of Cr.P.C. and the history given to the medical officer are inconsistent. Attention of the Court is drawn to the evidence of the father of the victim who never claims occurrence of any other incident than incident happened on 31^st March 2019. It is his submission that having regard to these facts, the Appellant has fair chance of the success in the Appeal.

3. The learned counsel for Respondent No.2-Victim and APP opposed the Application, firstly on the ground that the offence has been committed against the child aged 12 years. It is their submission that though the father of the victim has not stated about occurrence of any other incident than the incident of 31^st March 2019, the victim has deposed about all the incidents occurred with her in the substantive evidence before the Trial Court. It is contended that having regard to the nature of offence, this is not a fit case for enlargement of the Accused on bail.

4. This Court is required to consider at this stage as to whether any prima facie case exits for the Appellant for succees in the Appeal. Perusal of the record apparently indicates that there are inconsistencies in the statement of the victim as recorded before the Trial Court in comparison the statement under Section 161 of the Cr.P.C. as well as history given to the Medical Officer. Even if it is ignored that the father of the victim does not state anything about occurrence of any other incident than the incident dated 31^st March 2019, discrepancies in the testimony of the victim cannot be ignored. In such circumstances, it would be necessary to look for the corroborative evidence. The medical evidence indicates that there was old healed hymen tear. This is not inconsonance with the allegations made by the victim with regard to the occurrence of the incident prior to 31^st March 2019, it cannot be said that the Appellant has reasonable chance of success in the Appeal. He has already spent 6 and ½ years behind the bar.

Hence he is entitled for bail.

5. The learned APP and learned counsel for Respondent No.2 seeks appropriate conditions to be imposed against the Appellant, in order to ensure that the victim is not approached and there is no harassment to the victim at the hands of Accused. The learned counsel for the Appellant, on instructions, makes statement that, the Appellant will not enter into the jurisdiction of the Wadala Truck Terminus Police Station till decision of the Appeal. The statement is accepted as an undertaking. In view of above discussion following order.

ORDER (i) The substantive sentence imposed against the Appellant-Accused by judgment and order dated 5^th October 2