Allowed

Avinash Appaso Mulik v. the State of Maharashtra

Bombay HC4 Aug 2021IA/714/2021

Case brief

AI extract

What is this about?

The High Court allowed an interim application for suspension of sentence and bail during the pendency of a POCSO appeal. Citing hostile witnesses and custody duration, the court released the appellant on bail with a condition to pay Rs. 25,000 as provisional cash bail and refrain from staying in a specific village.

What did the court decide?

Sentence suspended; release on bail with Rs. 25,000 provisional cash bail for 12 weeks; stay in Girjawade village prohibited.

Avinash Appaso Mulik Vs the State of Maharashtra — Child Sexual Offences (POCSO) | Bombay HC (2021)

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rpa 1 / 4 11 ia 714 2021.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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INTERIM APPLICATION NO.714 OF 2021 IN CRIMINAL APPEAL NO.333 OF 2020

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Avinash Appaso Mulik .. Applicant/ Appellant Versus State of Maharashtra .. Respondent

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Mr.Satyavrat Joshi, Advocate for the Applicant/Appellant. Mr.S.R. Agarkar, APP for the Respondent – State.

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CORAM : PRAKASH D. NAIK, J.

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DATED : AUGUST 4, 2021.

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P.C. :

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Digitally signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER AHER Date: 2021.08.04 17:40:38 +0530

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This is an application for suspension of sentence and grant of bail during the pendency of criminal Appeal No.333 of 2020, preferred by the applicant challenging the judgment and order dated 11^th February, 2020, passed by Special Judge for POCSO and Additional Sessions Judge, Islampur, under the Protection of Children from Sexual Ofences Act (“POCSO Act”, for short) in Special Case No.16 of 2017.

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The applicant is convicted for the ofence punishable

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under Section 376(2)(n) of IPC and Section 4 of POCSO Act. He has been sentenced to sufer R/I for 10 years and to pay fne of Rs.5000/- and in default to sufer further S/I for six months. The complainant was served. She is not present. On the previous date of hearing, learned APP tendered on record a statement of the prosecutrix recorded on 23^rd June, 2021, pursuant to the order of this Court. The statement refected that she is not desirous of appearing before the Court in the application fled by the applicant seeking bail on account of fnancial dificulties and she has also stated that the Court may proceed with the application in her absence.

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3 Learned counsel for the applicant submitted that the applicant is in custody for a period of about 2 years 10 months without remission. There is no evidence to connect the applicant for the alleged ofence. The victim has not supported the prosecution case. Trial Court has convicted the applicant on the basis of DNA test report. However, there are discrepancies in relation to the evidence of DNA of the victim. It is submitted that the victim herself have stated that her blood sample was not taken for DNA purpose. Learned counsel relied upon the crossexamination of the medical oficer P.W.7, and, submitted that the

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said witness has admitted that if the blood is transfused to any person, than it cannot be taken for six months for DNA report. He relied upon the decision of this Court in the case of Nagesh Made Vs. State of Maharashtra¹ .

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4 Learned APP submitted that there is vital evidence in the form of DNA Report which supports the prosecution case. The victim was minor. Trial Court has rightly convicted the applicant.

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5 The victim and her parents have turned hostile. Trial Court has convicted the applicant only on the basis of DNA Report. The defence has challenged the report contending that there are discrepancies in the said evidence. It is true that the discrepancies will have to be considered at the stage of fnal hearing of the Appeal. However, considering the nature of evidence and that the applicant is in custody for more than 2 years, sentence of imprisonment can be suspended.

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:: O R D E R ::

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(i) Interim Application No.714 of 2021 , is allowed;

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(ii) The sentence of imprisonment of appellant

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1 2019 All MR (Cri.)2224

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awarded vide judgment and order dated 11^th February, 2020 passed by the Special Judge for POCSO and Additional Sessions Judge, Islampur, is suspended during the pendency of Appeal, and the applicant is directed to be released on bail on executing P.R.Bond in the sum of Rs.25,000/-, with one or more sureties in the like amount;

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(iii) Applicant is permitted to furnish provisional cash bail in the sum of Rs.25,000/-, for a period of 12 weeks, in lieu of surety;

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(iv) Applicant shall attend the trial Court once in six months;

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(v) Applicant shall stay out of village Girjawade, till further orders;

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(v) Interim Application No.714 of 2021, stands disposed of accordingly.

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( PRAKASH D. NAIK, J.)

Avinash Appaso Mulik v. the State of Maharashtra

Case brief

What is this about?

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Avinash Appaso Mulik v. the State of Maharashtra

Case brief

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