1 CrApln 1621-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1621 OF 2018
(IN CRIMINAL APPEAL NO. 404 OF 2018)
Gopal Gajendra Giri,
Age : 31 years, Occu. : Agri/Labour,
R/o Adgaon Darade, Tq. Sailu,
Dist. Parbhani. …Applicant
Versus
The State of Maharashtra,
Through Police Station, Bori,
Dist. Parbhani. …Respondent
…….
Mr. D. M. Shinde, Advocate for Applicant.
Mr. S. P. Sonpawale, A. P. P. for Respondent-State.
…….
CORAM : SMT. VIBHA KANKANWADI, J
RESERVED ON : 26-11-2018.
PRONOUNCED ON : 27-11-2018.
JUDGMENT :
01. Present application has been filed by the
original accused No. 1 for suspension of sentence during
the pendency of his appeal.
02. The present appellant was original accused No. 1
who has been convicted on 19.4.2018 by learned Sessions
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Judge, Parbhani in Special (POCSO) Case No. 36 of 2017 for
committing offence punishable under Section 376(2)(i) of
Indian Penal Code.
03. The applicant contends that the prosecution had
examined in all 5 witnesses. He has a very good case on
merits. The learned Trial Court has not appreciated the
evidence properly. He was on bail during the trial. He
has been acquitted of other offences. He is ready to
abide by the terms of the bail.
04. The application has been objected on the ground
that he has been convicted on merits.
05. Heard learned Advocate Mr. D. M. Shinde for the
applicant and learned A. P. P. Mr. S. P. Sonpawale for the
State. Perused the record and proceedings.
06. It is to be noted that the accused faced trial
for the offence punishable under Sections 363, 376(2)(i)
of I. P. C. and Section 4 and 8 of Protection of Children
from Sexual Offences Act, 2012. Prosecution examined in
all 5 witnesses. Accused has been convicted for
committing the offence punishable under Section 376(2)(i)
and has been sentenced to suffer rigorous imprisonment for
10 years and to pay fine of Rs. 5,000/-, in default to
suffer rigorous imprisonment of one year. He has stated
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3 CrApln 1621-2018
that he has paid the fine amount. He has been acquitted
from the offence punishable under Section 363 read with
34, 354 and Section 8 of POCSO Act. The learned Advocate
appearing for the applicant has stated that the age of the
victim was not proved properly and conclusively. The
victim has stated her age as 11 years and 6 months. It is
stated that she was kidnapped by giving false promise of
marriage. In order to prove her age, the Head Master of
Zilla Parishad School has been examined. It is stated
that while admitting the victim in first standard noting
of Anganwadi Sevika was taken. Birth certificate was not
produced. Under such circumstance, the learned Sessions
Judge ought not to have held that she was a minor. He
relied on the decisions in Ravi Anandrao Ghurpude V/s The
State of Maharashtra, (2017 AllMR Cri. 1509) wherein birth
certificate of the prosecutrix was not produced and
therefore, she was not held to be a child. Further
reliance has been placed on the decision in Criminal
Appeal No. 68 of 2018 Sujoy @ Sanjoy Laltu Chakravarti V/s
The State of Maharashtra decided on 26.2.2018 on the
similar point. It was observed by the learned Sessions
Judge that it appears to be the matter of love affair
because the said fact itself was stated by the victim in
her statement and merely because consent of the minor is
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no consent at all it is stated that the appellant has
committed offence of rape. Therefore, the appellant has
good arguable case.
07. The learned A. P. P. submitted that the age of
the prosecutrix is properly proved.
08. It is to be noted that the age of the victim was
disputed by the present appellant. Further, it was also
for the prosecution to prove her age beyond reasonable
doubt. Here, in this case, appellant has been acquitted
of the charges under POCSO Act. Therefore, it is required
to be seen as to whether in general the case is covered
under Section 376(2)(i) of I. P. C. or not. For that
purpose the age may not be so relevant. However, the plus
point for the accused is that he was on bail throughout
the trial. He has been sentenced to suffer rigorous
imprisonment for 10 years. Under such circumstance,
taking into consideration the ratio laid down in Kiran
Kumar V/s State of M. P., (2001 AIR SCW 5130), the appeal
filed by the present appellant is admitted and it will
definitely take longer time to decide. Therefore, case is
made out to release him on bail pending the appeal.
09. Hence, following order;
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5 CrApln 1621-2018
ORDER
(i) The application is hereby allowed.
(ii)The substantive sentence passed against the
appellant Gopal Rajendra Giri by learned
Sessions Judge, Parbhani in Special (POCSO)
Case No. 36 of 2017 on 19.4.2018 is hereby
suspended till the hearing and disposal of the
criminal appeal No. 404 of 2018.
(iii)The Applicant be released on PR of Rs.
30,000/- and with two sureties of Rs. 15,000/-
each.
(iv)The applicant shall not act prejudicial to
the interest of witnesses.
(v)Furnish the bail before Trial Court.
(vi)Send back the record and proceedings for
preparation of paper book.
[SMT. VIBHA KANKANWADI]
JUDGE
Dahibhate/-.
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