Dismissed¶38

Anil S/O Bajirao Madavi v. the State of Maharashtra through Pso Ps Dhanora Dist Gadchiroli

Bombay HC14 Jan 2025APEAL/465/2024

Case brief

AI extract

What is this about?

Section 389 CrPC suspension of sentence; fair chances of acquittal; no re-appreciation of evidence at appellate stage; POCSO Section 6; Section 376(2)(i) IPC; Section 506-II IPC; penetrative sexual assault; victim aged 11; medical evidence corroboration; PW-7 teacher witness; Omprakash Sahni v. Jai Shankar Chaudhary; delay in FIR; Rs.12,000 settlement; Nagpur Bench Bombay High Court; Urmila Joshi-Phalke; expedited paper book; out of turn hearing; Criminal Appeal No. 465 of 2024; Criminal Application No. 821 of 2024

What did the court decide?

Suspension of sentence and release on bail refused; office directed to expedite preparation of the paper book and list Criminal Appeal No. 465 of 2024 for final disposal out of turn. ¶38

Anil S/O Bajirao Madavi vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2025)

What the court decided

AI extract

Outcome

Suspension of sentence and release on bail refused; office directed to expedite preparation of the paper book and list Criminal Appeal No. 465 of 2024 for final disposal out of turn.

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Issue for consideration

Whether the appellant's sentence should be suspended and he released on bail pending disposal of the appeal (application under Section 389 Cr.P.C.). +2 more

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Court's answer

Nothing was brought before the Court to show that the appellant had fair chances of acquittal; the application for suspension of sentence therefore deserved rejection, and was rejected.

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Ratio / Principle

In dealing with an application for suspension of sentence at the appellate stage, the Court does not re-appreciate the evidence; the enquiry is limited to whether the appellant has made out a case showing fair chances of acquittal in the appeal.

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Key takeaways

The evidence showed the 11-year-old victim was subjected to penetrative sexual assault, corroborated by the medical evidence (injuries on breast and private parts noted by the Medical Officer) and by PW-7, the teacher, who saw the accused in the school playground on the day of the incident.ratio¶29
Considering the 20-year sentence imposed, the office was directed to expedite preparation of the paper book and, upon its preparation, to list Criminal Appeal No. 465 of 2024 for final disposal out of turn.ratio¶44

Detailed headnote1 paragraphs

Suspension of sentence under Section 389 CrPC refused — Bombay High Court (Nagpur Bench), Urmila Joshi-Phalke, J., January 14, 2025: Anil s/o Bajirao Madavi, convicted by the Special Judge under Section 376(2)(i) and 506-II IPC and Sections 4 and 6 POCSO for the 2018 sexual assault of an 11-year-old neighbour (R.I. 20 years and fine Rs.75,000/- under Section 6 POCSO; R.I. 5 years and fine Rs.25,000/- under Section 506-II IPC), failed to establish fair chances of acquittal. Relying on Omprakash Sahni v. Jai Shankar Chaudhary (SC, decided 02-05-2023), the Court held that evidence is not re-appreciated at this stage; the victim's account of penetrative assault, corroborated by medical evidence and by PW-7 (the teacher), left nothing on record showing fair chances of acquittal, and the bail/suspension application was rejected. In the connected appeal (No. 465 of 2024), noting the 20-year sentence, the office was directed to expedite preparation of the paper book and to list the appeal for final disposal out of turn.

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61.appa.821.24.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

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CRIMINAL APPLICATION NO.821 OF 2024 IN

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CRIMINAL APPEAL NO.465 OF 2024

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(Anil s/o Bajirao Madavi Vs. State of Maharashtra)

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Office Notes, Office Memoranda of Court's or Judge's Order Coram, appearances, Court's Orders or directions and Registrar's order

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Mr. K.G. Rathi, Advocate (appointed) for the appellant. Ms R.V. Sharma, APP for the State.

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CORAM:- URMILA JOSHI-PHALKE, J. DATED :- JANUARY 14, 2025.

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By this application, the applicant is seeking suspension of sentence and releasing him on bail.

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The appellant was prosecuted of the offence punishable under Sections 376, 506-II, and 202 of the IPC read with Section 34 of the Indian Penal Code and under Sections 4, 6 and 21(1) of the Protection of Children from Sexual Offences Act, 2012.

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As per the prosecution case, the informant who is the mother of the victim lodged FIR alleging that on 17/01/2018 when she was present in the house, the victim girl who was 11 years of age had come back from the school and she asked the victim to go to the pond for washing the clothes. Accordingly, at about 2.00 PM, victim girl went to the pond for washing the cloths and at about 3.45 PM she returned back from the pond. At the relevant

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time, the accused Anil who was her neighbour came towards her in a drunken condition and laid down himself on the bed and started murmuring by saying that "He played mischief with his niece but nothing happened and I don't know whether Pungati lady discloses the same to the villagers" and therefore, she suspected and she made enquiry with the victim girl and victim girl has disclosed that the present appellant has subjected her for the forcefule sexual assault. On the basis of the said report, police have registered the crime against the present appellant.

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After completion of the investigation, the charge-sheet was submitted against the accused and the prosecution has examined in all 9 witnesses in support of the prosecution case. The material witnesses on which prosecution placed reliance on is the evidence of the victim who is aged about 11 years and the medical evidence. On the basis of the same, the trial Court held the accused guilty and sentenced him. As per the order of the Special Judge the offence under Section 376(2)(i) and 506-II of the IPC as well as Sections 4 and 6 of the POCSO Act are proved against the present appellant. He is convicted of the offence punishable under Section 6 of the POCSO Act to suffer rigorous imprisonment for twenty years and to pay fine of Rs.75,000/- in default of payment of fine he shall undergo further rigorous imprisonment for one year. He is further sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.25,000/-

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of the offence punishable under Section 506-II of the IPC and in default of payment of fine he shall undergor further rigorous imprisonment for three months.

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Being aggrieved and dissatisfied with the same, present appeal is preferred by the appellant and he is seeking suspension of sentence.

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Learned Counsel for the appellant submitted that there is inordinate delay in lodging the FIR. The evidence of the victim and the mother is not consistent. As per the evidence of the victim prosecutrix had been to the pond at about 2:00 PM and thereafter she again attended the school whereas the evidence of the mother shows that she had been to the house at 2:00 PM and she was sent for washing the clothes at pond and after returning, she has disclosed the incident. There is no corroboration to the evidence of the victim, and therefore, it is not inspiring the confidence. He further submitted that the case of penetrative sexual assault is not made out against the present appellant. The medical evidence is not adduced to show that she was subjected for the penetrative sexual assault. In view of that also the appellant has every chance of success in the present appeal, and therefore, the execution of the sentence be suspended as the appeal would take its own time for its final disposal. He further submitted that as mother of the victim has also admitted that she has not received the money of Rs.12,000/- towards the settlement, and

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therefore, the report was not filed is not taken into consideration.

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Learned APP strongly opposed the said application and submitted that 11 years girl was subjected for the forceful sexual assault. Not only the evidence of the victim but the evidence of PW-7 - Sukhdev Kewalram Gahane who was serving as a Teacher and the medical evidence shows the involvement of the present appellant in the alleged offence. The 11 years girl was subjected for the sexual assault. The injuries which were noticed by the Medical Officer after seven days of the incident speaks for itself. At this stage, re-appreciation of the evidence is not to be done but what is to be seen is whether the appellant is having any chance of success in the present appeal. In view of that, the application deserves to be rejected.

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I have heard learned Counsel for both the parties. Perused the impugned judgement as well as the evidence on record. The evidence of the victim was recorded wherein she has narrated the entire incident. As far as the defence of the accused is concerned that the mother of the victim was demanding some money which was denied to be paid, and therefore, the appellant is falsely implicated is denied by the victim. Though mother of the victim has admitted that there was a meeting in the village and the appellant has agreed to pay the amount of Rs.12,000/- and the same was not paid, and therefore, the alleged FIR is lodged. Even if, taken into consideration the

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evidence of the victim shows that she was subjected for the penetrative sexual assault which appears to have been corroborated by the medical evidence as well as evidence of PW-7 i.e. the Teacher Sukhdev Kewalram Gahane which shows that he has noticed the accused Anil Madavi in the play ground of the school on the day of incident. The medical evidence also shows that the Medical Officer has witnessed various injuries not only on her breast but also on her private part. Admittedly, the re-appreciation of the evidence, at this stage, is not to be done. What is to be seen is whether the appellant has made out a case to show that he has fair chances of acquittal in the present appeal. This aspect is dealt by the Hon’ble Apex Court in the case of Omprakash Sahni Vs. Jai Shankar Chaudhary in Criminal Appeal No.1331-1332/2023 decided on 02/05/2023 along with the connected appeals. After considering the catena of decisions as to the principle while considering the application under Section 389 of Cr.P.C. for suspension of sentence, the Hon’ble Apex Court held in para No.33 as under:

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Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the

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affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.

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In the case in hand what the evidence on record shows that the 11 years girl was subjected for the forceful sexual assault, the evidence of the victim is not only corroborated by the witnesses but is also corroborated by the medical evidence. At this stage, whether the evidence suffering from any infirmities and whether that infirmities goes to the root of the case are to be seen. At this stage, nothing is brought before the Court to show that there are fair chances of acquittal are shown

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by the present appellant. In view of that, the application for suspension of sentence deserves to be rejected.

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10. Accordingly, the application is rejected.

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CRIMINAL APPEAL NO.465 OF 2024

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Heard.

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R. and P. is already received.

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Considering the appellant is behind bar, the office to prepare the paper book.

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Learned Counsel for the appellant submitted that the appellant is behind bar since last 7 years.

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Considering the punishment imposed to the appellant is of 20 years, office to expedite the preparation of the paper book and after preparation of the paper book appeal be listed for the final disposal out of turn.

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(URMILA JOSHI-PHALKE, J.)

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*Divya

Anil S/O Bajirao Madavi v. the State of Maharashtra through Pso Ps Dhanora Dist Gadchiroli

Case brief

What is this about?

What did the court decide?

Anil S/O Bajirao Madavi v. the State of Maharashtra through Pso Ps Dhanora Dist Gadchiroli

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

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Procedural history

Parties & counsel

Coram

Case details

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