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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL INTERIM APPLICATION NO.974 OF 2021

IN

CRIMINAL APPEAL NO.251 OF 2021

1.

Ashwin Mohanlal Parikh

2.

Vimlaben Ashwin Parikh

...Applicants

Versus

State of Maharashtra and Anr.

...Respondents

Mr. Dinesh Tiwari a/w Mr. Mikhail Dey, Mr. Ansh Karnawat and Mr.

Santosh Pawar i/b Dinesh D. Tiwari and Associates, for the Applicants.

Ms. S. V. Sonawane, A.P.P for the Respondent No.1 – State.

Ms. Ameeta Kuttikrishnan, Appointed Advocate for the Respondent No.2.

CORAM : REVATI MOHITE DERE, J.

DATE : 8^th APRIL, 2021

P.C. :

1.

Heard learned counsel for the parties.

2.

By this application, the applicants seek suspension of their

sentence and enlargement on bail, pending the hearing and final disposal

of their appeal.

3.

The Applicants vide Judgment and Order dated 11^th March

2021 passed by learned Special Judge under P.O.C.S.O. Act, 2012, Greater

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Bombay, in POCSO Special Case No.900 of 2013, have been convicted

and sentenced as under:-

-

for the offences punishable under Section 6 of the Protection of

Children from Sexual Offences Act, to suffer rigorous imprisonment for 10

years and to pay fine of Rs.1,000/- each, in default of payment of fine, to

undergo simple imprisonment for 1 month;

-

for the offence punishable under Section 354 r/w Section 34 of the

Indian Penal Code and Section 4 of the Protection of Children from Sexual

Offences Act. However, no separate sentence has been imposed.

-

the appellants were however acquitted of the offences punishable

under Section 354 r/w Section 34 of the Indian Penal Code and Section 4

of the Protection of Children from Sexual Offences Act;

-

No separate sentence was imposed for the offence punishable under

Section 376 of the Indian Penal Code in view of Section 42 of the

Protection of Children from Sexual Offences Act.

4.

Learned Counsel for the applicants submits that the allegations

against the applicants, aged 87 and 81 years respectively (husband and

wife) are false and baseless. He submits that the evidence on record will

show the falsity of the case. He submits that there are several

inconsistencies in the evidence of witnesses, in particular, PW 1 and PW 2,

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so also material omissions. He submits that PW 1 – mother of the

prosecutrix had initially stated that applicant No.1 had inserted his finger in

the private part of the prosecutrix, however, subsequently has stated that

applicant No.2 also did the same act. He submits that the prosecutrix has

only stated that the applicant No.1 touched her inappropriately on her

private part and made no allegation as against applicant No.2 of

inappropriate touching. Learned Counsel relied on paras 14, 15 and 16 of

the cross-examination of PW 7 – Dr. Prajakta Ahire with respect to the

medical evidence that has come on record. According to the learned

counsel for the applicants the reason for falsely implicating the applicants

was for taking over the house of the applicants, in which they are staying.

Learned Counsel further submitted that considering the age of the

applicants i.e. 87 and 81 years and the fact, that the applicants were on bail

and also having regard to the evidence that has come on record, the

applicants sentence be suspended and they be enlarged on bail.

5.

Learned APP as well as learned appointed advocate for the

respondent No.2 opposed the application.

6.

Perused the papers.

Prima facie, there are certain

inconsistencies that have come on record in the evidence of PW 1 and PW

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2. There are also certain omissions that have come on record in the

evidence of PW 1 with respect to what was deposed to, by her in her

examination-in-chief. The medical evidence on record will also have to be

considered in particular, having regard to what is st