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cran 1796.22.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.1796 OF 2022

IN

CRIMINAL APPEAL NO.413 OF 2022

SHOYAB DILAWAR SHAIKH

VERSUS

THE STATE OF MAHARASHTRA AND ANOTHER

...

Advocate for Appellant : Mr. Temkar Rajendra K.

APP for Respondent : Mr. R D Sanap

...

CORAM : SHRIKANT D. KULKARNI, J.

Dated : September 16, 2022

…

PER COURT :-

1.

It is an application for suspension of sentence and bail

moved by the applicant.

2.

Heard Mr. Temkar, learned counsel for the applicant,

Mr. Sanap learned APP for the State/Respondent no.1 and

Mr. Nagarsoge, learned counsel (appointed) for respondent

no.2.

3.

Mr. Temkar, learned counsel for the applicant invited

my attention to the impugned judgment and order of

conviction passed by the learned Additional Sessions Judge,

Sangamner in Sessions Case no.64 of 2016. He further

invited my attention to the copies of depositions of victim

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cran 1796.22.odt

girl, father of the victim, Medical Offcer and Police Station

offcer, who has recorded the FIR. He pointed out that the

prosecution has miserably failed to prove the age of the

victim girl on the date of the alleged incident. No witness is

examined even, from the school regarding birth date of the

victim girl. He submitted that, the learned Additional

Sessions Judge has committed an error in relying upon the

school leaving certifcate wherein date of birth of the

prosecutrix is mentioned.

4.

He submitted that, according to the provisions of

Protection of Children from Sexual Offences Act, 2012 (for

short POCSO Act), it was incumbent upon the prosecution to

examine the witness to prove what was the exact age of the

prosecutrix on the date of the incident. He, therefore,

submitted that fnding recorded by the learned Additional

Sessions Judge is erroneous.

5.

He further invited my attention to the evidence of two

witnesses. Learned counsel submitted that, Medical offcer

Dr. Sneha Gote has stated in her evidence that there was no

injury on private part of the victim girl. Victim girl had not

sustained injuries on her person. Medical certifcate

nowhere indicates sexual assault on the victim. He,

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cran 1796.22.odt

therefore, submitted that, the fndings recorded by the

Additional Sessions Judge thereby convicting the applicant

u/s 366-A, 376 of the IPC coupled with POCSO Act is

completely erroneous.

6.

Learned counsel for the applicant further invited my

attention to the evidence of victim girl and her statement

recorded by the Magistrate under section 164 of the CrP.C.

and pointed out that there is material variance. Victim girl

has changed her stand. In her statement recorded before

the Magistrate she has admitted that she has love affair with

the applicant and both of them ran away from the house and

stayed at various places. She has not disclosed before the

Magistrate that there was any physical relations between

them. However, subsequently, she has stated before the

Court that there was physical relations; which is not

supported by the medical evidence. He further invited my

attention to the evidence of father of victim girl and pointed

out as to how his evidence is again at variance. He has even

denied portion marked ‘A’ out of his FIR. It is nowhere stated

in the FIR that there was sexual assault on his daughter.

7.

Learned counsel for the appellant submitted that,

present appellant was on bail during the trial and in the

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interregnum period, he was taken into custody and again

released on bail. After conviction, he has been taken into

custody. There are no extra ordinary circumstance