Convicted applicant sought bail under POCSO Act. High Court rejected application, citing planned manner of offence, resident status causing victim trauma, and strong medical and testimonial corroboration of guilt.
Application for bail rejected; prayer to suspend substantive sentence not allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1108-19-APPA=.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1108 OF 2019 IN
CRIMINAL APPEAL NO. 942 OF 2019
Shahnawaz Rehman Shaikh .. Applicant
v/s.
The State of Maharashtra & Anr. .. Respondents
Ms. Anjali Patil a/w Mr. Aashay Topiwala for the applicant Ms. M.R. Tidake, APP for the respondent State
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 14th FEBRUARY, 2020
PRONOUNCED ON : 24th FEBRUARY, 2020
P.C.
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sentences were directed to run concurrently.
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bushes. The victim tried to raise shouts, however, both of them gagged her mouth. The applicant had forcibly removed the clothes from the person of the victim and thereafter removed his pant. He inserted his penis in her vagina and at the same time the juvenile who had grasped the victim from behind, inserted his penis in the anus. Due to the severe pain, the victim made all efforts to get herself rescued from the clutches of the applicant and the juvenile but she could not as both of them had tightly grasped her from either side. At the same time, both of them were touching her private part and were talking in vulgar language. No one was there. After some time they left the victim on the spot and escaped.
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therefore, the identity of the applicant has not been established as he was unknown to the victim. It is contended that it is not clear from the evidence of the victim whether reference qua the accused as Papa, is with regard to the applicant or it was someone else. No medical history has been given to the doctor about the sexual intercourse. It is submitted that the history given by the victim and the evidence is contradictory. There are no injuries or mark of violence. There was no fresh tear of hymen, no injury to the anal portion. It is submitted that the applicant was in the custody for 4 years who has been falsely implicated in this case. The evidence is not sufficient to hold him guilty.
of the applicant on bail by pointing out that the victim was a minor
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who was studying in 10th standard at the time of incident. The learned APP has pointed out to testimony of PW-2 – mother of the victim who has clearly deposed about the age of the victim at the relevant time, which is corroborated from the evidence of PW-4 – Teacher of the School, where the victim was studying. As per the testimony of this witness, the date of birth of the victim is 7th January, 2000, meaning thereby the victim was about 16 years of age at the relevant time. The Bonafide Certificate to that effect is at Exh.25 and the School Leaving Certificate is at Exh.26.
evidence of the doctor which supports the testimony of the victim
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and her mother. The arrest panchanama also confirms the fact that the applicant and Papa is one and the same person.
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Hospital, examined the victim on 29.09.2015 and had given a history that on the earlier date as on 28.09.2015 around 7.00 p.m. while she was going to the tuition classes, her classmate (juvenile) hired a rickshaw in the midway and thereafter along with the applicant she was dragged in the jungle adjoining the railway track. She was subjected to intercourse by the applicant while the juvenile was holding her hands. The history given to the doctor further reveals that there was no history of peno-vaginal intercourse. When the victim was examined, PW-5 noticed that the hymen was torned at 6.00 O’clock with tenderness and congestion present. Anal tenderness was present. It is opined that she was subjected to sexual intercourse / assault. The tenderness on the anus was because of sexual intercourse through anus. Thus, the medical evidence corroborates the version of the victim.
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(PRITHVIRAJ K. CHAVAN, J.)
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2 issues framed by the court
Whether the applicant should be released on bail by suspending substantive sentence given he was convicted of molestation of a minor and resides in the neighbourhood.
Whether the evidence regarding the victim's age and the identity of the applicant is sufficient to deny bail.
3 provisions across 2 enactments
Shahnawaz Rehman Shaikh
The State of Maharashtra
Prithviraj K. Chavan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
