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Gopal S/O. Gajendra Giri vs The State Of Maharashtra on 27 November, 2018

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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2 CrApln 1621-2018

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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4 CrApln 1621-2018

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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