Bombay High Court
Pavan @ Ompal Hoshiyar Singh vs The State Of Maharashtra on 4 November, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
3-IA St. No.2495-2020 In Appeal No 1421-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION (ST.) NO. 2495 OF 2020
IN
CRIMINAL APPEAL NO.1421 OF 2019
Pavan @ Ompal Hoshiyar Singh ... Applicant
Age : 35 Years, Occ : Stuart
(Presently lodged in Arthur Road Jail, Mumbai)
R/o. Village and Post - Kawali, Police Station,
Dahina, Taluka & District Rewari, Haryana.
Versus
1. The State of Maharashtra
2. Seema Rajendrasingh Sherawat ... Respondents
.....
Ms. Anjali Patil, Advocate for the Applicant.
Mr. A. R. Kapadnis, APP for the Respondent - State.
Ms.Deepa Amati, Amicus Curie for Respondent No.2.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 4th NOVEMBER, 2020.
PER COURT:
1. This is an application for suspension of sentence of
imprisonment imposed by Judgment and order dated 9 th September,
2019 passed in POCSO Special Case No. 523 of 2015 by Special
Judge under POCSO Act, Greater Mumbai.
2. The prosecution case in short is that, the victim aged
about 14 years old was sexually assaulted by accused. The informant
is the mother of victim. The accused Nos. 2 and 3 were serving in
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Navy. The victim's father was also serving in Navy. The FIR was
lodged on 15th July, 2015. On 17th July, 2015, the victim was in the
house. Her parents were out and they returned home in the night.
They saw accused No.2 (applicant) coming from their house. He was
confronted. He stated that he had come to meet victim. Victim was
taken into confidence. She stated that, she got familiar with accused
No.3. He was following the victim. He purchased the mobile phone
for her and he was keeping contact with victim on said mobile. She
was friendly with absconding accused No.4. He expressed his love for
her. The victim was subjected to sexual assault by him. Accused No.2
advised the victim to keep away from accused No.4. He would give
sweets and gifts to her and called the victim to his house and
sexually assaulted her. Thereafter, he went to Delhi. Accused No.2
met her on 17th July, 2015, when her parents were out. He brought
mobile phone and sweets for her. Victim's parents arrived and he was
confronted. She was familiar with accused No.1 since One year. All
the four accused contacted victim and got familiar with her. FIR was
lodged for the offences under the provisions of Indian Penal Code
(for short "IPC") as well as under POCSO Act. Applicant was arrested
on 20th July, 2015.
3. The applicant was convicted for offences under Section
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376(2)(c)(j) of IPC and Sections 4 & 6 of Protection of Children from
Sexual Offences Act (for short "POCSO Act"). He was sentenced to
suffer rigorous imprisonment for Ten years and to pay fine of
Rs.75,000/-. Accused No.3 was acquitted. Accused No.1 was
convicted for offence under Section 376 of IPC and Section 4 of
POCSO Act. He was sentenced to suffer rigorous imprisonment for
Seven years and to pay fine of Rs.50,000/-.
4. Learned advocate for the applicant submitted that, the
applicant has been falsely implicated in this case. The applicant is in
custody for a period of about Five years and Three months. The
victim was allegedly aged about Fourteen and Half years. She was
friendly with several persons. The alleged information was given to
the parents by the victim when she was confronted by them. Her
evidence suffered from contradictions and serious omissions. Learned
advocate relied on Judgment of the Supreme Court in the Case
Hussain and Others Vs. Union of India, 1. In the said decision, it was
observed that, the accused were entitled for bail as speedy trial was
their fundamental right. Learned advocate also relied on another
decision of the Supreme Court in the case of Akhtari Bi. Vs. State of
M.P. 2
in which it was observed that, prolonged delay in disposal of
1 AIR 2017, SC 1326
2 2001(2) ACR 1175 (SC)
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the trials and thereafter appeals in criminal cases, for no fault of the
accused, confers a right upon him to apply for bail. Reliance is also
placed on order dated 10th July, 2019 passed by this Court in
Criminal Application No. 1063 of 2019. The applicant therein was
convicted under Section 4 of POCSO Act and Section 363, 366 and
376 of IPC. He was sentenced to undergo rigorous imprisonment for
Ten years. The appellant had served over 50% of the sentence. The
substantive sentence was suspended and the appellant/accused was
directed to be released on bail.
5. Learned APP submitted that, the victim was minor.
Consent, if any is immaterial. The version of victim was supported by
medical evidence. The victim has specifically attributed overt act of
sexual assault to the applicant. The offence is of serious nature. The
victim was subjected to sexual assault against her wish. The accused
have committed the offence of aggravated penetrative sexual assault.
6. Learned Advocate Ms. Deepa Amati appointed to
represent respondent No.2 and the victim submitted that, the victim
was a minor girl aged about 14 years. The applicant and the co-
accused subjected her to sexual assault. The consent of the victim is
immaterial. There is sufficient evidence on record to prove the
charge. The evidence of victim child establishes the offence against
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the applicant. Hence, the application for suspension of sentence may
be rejected.
7. The complainant is mother of victim. She has referred
to incident dated 18th July, 2015, in which the applicant was
confronted when he was running from house of the complainant. She
narrated the disclosure made to her by the victim. The evidence of
victim who was aged about 16 years at the time of recording of
evidence indicate that, in February, 2015, she noticed that one boy
was looking at her. She became friendly with boy. He used to call her
daily. He gave his name as Prithvi (Accused No.4). In April, 2015,
accused No.4 called her in a building. She was sexually assaulted by
him. He again subjected her to penetrative sexual assault at her
house. She told about this incident to accused No.2(applicant). In
May, 2015, accused No.2 called her repeatedly. He gave sweets and
articles to her. In July, 2015 he subjected her to penetrative sexual
assault. Accused No.1 used to follow the victim in October, 2014. He
sexually assaulted her. Accused No.2 went to Delhi, and returned
from Delhi, he gave sweets and mobile phone. He visited house of
the victim, when he saw her father and started running. He was
confronted by victim's father. Accused No.3 had given her mobile
phone. He used to follow her, whenever she went out of house. In
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the cross examination several omissions were brought on record. The
fact that accused No.2 told her to talk to him only, accused No.4 used
to call her daily, the acts attributed to accused No.4, accused No.2
caught her hand and took her at Rushab Building, he told her that
she had no option except stay at his room, she told the police that
she was not in a position to remove him and therefore he committed
sexual intercourse with her, all the accused committed rape without
her consent and against her wish, is not appearing in her statement.
8. The victim further stated that, the fact that she used to
talk with accused No.4, accused No.3 used to follow her is not
reflected in her statement. She did not state before the police that,
accused used to call on her mobile in the month of May 2015. She
had asked accused No.2 to collect the information of Prithvi. The
incident regarding accused No.2 had occurred in first week of July
2015. She cannot tell the exact date of the incident. She stated
before the police that, accused No.2(applicant) caught her and took
her in the building but the said fact is not appearing in the
statement. She had given her mobile phone to accused No.1. Accused
No.2 has handed over sweets to her when the parents were not in
the house and also gave her mobile phone.
9. PW-13 Dr. Mane, Medical Officer, has stated that, victim
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had given history that she met accused No.4 first in Mumbai and
they became friends and used to talk on mobile phone every day. She
was sexually assaulted in June and again at her house. Thereafter,
she severed ties with accused No.4. She met a new friend-accused
No.2. She was sexually assaulted by him at once in his house.
Thereafter, she met her old friend-accused No.1 on 17 th July, 2015,
there was history of sexual assault by accused No.1 at his house. She
did not gave history of physical assault by anyone.
10. The applicant is in custody from the date of arrest and
he has undergone imprisonment of about Five years and Three
months. Considering the circumstances including the fact that, the
applicant is in custody for substantial time, the sentence of
imprisonment can be suspended. Hence, I pass following order :
ORDER
i) Interim Application (St.) No. 2495 of 2020 is allowed.
ii) The sentence of imprisonment awarded by the Special Judge under POCSO Act, Gr. Mumbai vide Judgment and order dated 9th September, 2019 in POCSO Special Case No. 523 of 2015 is suspended, during the pendency of appeal against conviction preferred by the applicant. The applicant is directed to be released on bail Sajakali Jamadar 7 of 8 ::: Uploaded on - 07/11/2020 ::: Downloaded on - 20/12/2020 11:42:04 ::: 3-IA St. No.2495-2020 In Appeal No 1421-2019.doc on executing P.R. Bond in the sum of Rs.25,000/- with one or more local sureties in the like amount.
iii) The applicant shall report Cuffe Parade Police Station, Mumbai once in three months on first Saturday of the month between 11.00 to 1.00 till further order.
iv) The concerned department shall provide professional fees to learned advocate Ms. Deepa Amati appointed as amicus curie in accordance with Rules.
v) Application stands disposed of accordingly.
11. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(PRAKASH D. NAIK, J.)
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