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Judgment
Present application has been filed for suspension of substantial sentence imposed on the applicant in Special Case (Child Prot.) No.159 of 2019 (Old Sessions Case No.358 of 2013) by learned Additional Sessions Judge, Aurangabad on 21-12-2019.
The applicant has been convicted for the offence punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and thereby sentenced to suffer rigorous imprisonment for 5 years (five years) and to pay fine of Rs.10,000/- (Rs. Ten Thousand only), in default, to suffer simple imprisonment for six months. Further he has been convicted for the offence punishable under Section 12 of the Protection of Children from Sexual Offences Act, 2012 and thereby sentenced to suffer rigorous imprisonment for three years (three years) and to pay fine of Rs.10,000/-(Rs. Ten Thousand only), in default, to suffer simple imprisonment for three months.
Heard learned Advocate Mr. Vijay R. Langhe for applicant and learned APP Mr. P. G. Borade for respondent-State.
It has been vehemently submitted on behalf of the applicant that the learned trial Judge has not appreciated the evidence properly. The possibility of tutoring of the child has not been ruled out by the prosecution and therefore, there is every hope for the applicant about the success in appeal. The victim, who is stated to be aged six years, says that she had ran away from the Madarsa where she was taking education and then by jumping on the roof of the adjacent house and then coming down to the lane for going towards her home, she says that she went near railway bridge and thereafter, when she was on the railway platform, it is stated that the accused had dragged her besides a wall and thereafter, tried to rape her by removing clothes. The learned trial Judge failed to consider that how such thing is possible when it is a crowded area. Therefore, the prosecution story itself is unbelievable. The applicant is a young person. He was on bail throughout the trial. The sentence that has been imposed on him is short sentence and therefore, he deserves suspension of sentence and released on bail.
Reliance has been placed on the following decisions :-
(i) Salman Faruq Shaikh Vs. The State of Maharashtra and Anr (Criminal Application No.671 of 2019 in Criminal Appeal No.639 of 2019 dated 30-04-2019)
(ii) Ankush Jivan Rathod Vs. State of Maharashtra Thru. P.S.O., P.S. Arni, Dist. Yavatmal passed in Criminal Appeal No.656 of 2019 dated 09-10-2019
(iii) Nagesh S/o Santosh Pise Vs. State of Maharashtra., Thru. P.S.O., P.S., Chandrapur City, Chandrapur passed in Criminal Appeal No.364 of 2019 28-05-2019.
(iv) Shaikh Waseem s/o Shaikh Fatte Ahmed Vs. The State of Maharashtra and another passed in Criminal Application No.1462 of 2018 in Criminal Appeal No.377 of 2018 dated 25-09-2018.
(v) Arvind Kishan Chaudante Vs. The State of Maharashtra and another passed in Criminal Application No.962 of 2018 in Criminal Appeal No.261 of 2018 dated 09-07-2018.
(vi) Ram s/o Pralhad Ghodke Vs. The State of Maharashtra passed in Criminal Application No.1867 of 2018 in Criminal Appeal No.431 of 2018 dated 10-08-2019.
(vii) Kiran Kumar Vs. State of M.P., (2001 AIR (SCW) 5130)
(viii) Bhagwan Rama Shinde Gosai Vs. State of Gujarat, (1999 AIR (SC) 1859).
In all these cases, sentence has been suspended, when the short sentence has been awarded.
Per contra, learned APP supported the reasons given by learned trial Judge and submitted that when there is ample evidence on record against the accused, leniency need not be shown. He also submitted that there is nothing contradictory transpired in the cross examination of the victim. The victim was not even knowing the accused prior to the incident. Therefore, there is no question of false implication of the accused or tutoring against him.
At the outset, the points which are in favour of the applicant are that he was on bail throughout the trial and there is nothing in the impugned judgment which would lead to infer that he has misused liberty. As regards the questions raised in respect of the prosecution story are concerned, they are required to be re-appreciated when the appeal is admitted. There is no doubt about the fact, as it appears from the cross-examination of the prosecution witnesses, that victim was not even knowing the accused prior to the incident. However, as per the prosecution story, certain persons who had reached the spot after hearing cry of the victim, had caught hold of him. Yet the circumstance is required to be re-appreciated that how the victim could have reached till the railway platform and whether there was such a place available on the platform to commit such offence. Therefore, in consonance with the orders on which the applicant has relied, case is made out for suspending the sentence imposed on the applicant and releasing him on bail. Hence, the following order :-
ORDER
(1) Criminal application is hereby allowed.
(2) The substantive sentence imposed on applicant Special Case (Child Prot.) No.159 of 2019 (Old Sessions Case No.358 of 2013) by learned Additional Sessions Judge, Aurangabad dated 21-12-2019 is hereby suspended till the hearing and conclusion of Criminal Appeal No.1304 of 2019.
(3) The applicant be released on P. R. Bond of Rs.50,000/-(Rupees Fifty Thousand) till the lock-down is entirely lifted. After the entire lock-down is lifted, he should, in addition, submit two solvent sureties of Rs.25,000/- (Rupees Twenty Five Thousand) each.
(4) Applicant shall attend the police station once in three months till the conclusion of the appeal.
(5) Bail before Trial Court.