Bombay High Court
Sampa Vishwas Roy vs The State Of Maharashtra And Anr on 21 January, 2022
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.725 OF 2021
IN
CRIMINAL APPEAL NO.183 OF 2021
Sampa Vishwas Roy .. Applicant/ Appellant
Versus
State of Maharashtra and Anr. .. Respondents
......
Ms.Anjali Patil, Advocate for the Applicant/Appellant.
Mr.S.V. Gavand, APP for the Respondent - State.
Ms.Saili N. Dhuru, Advocate for Respondent No.2.
......
CORAM : PRAKASH D. NAIK, J.
DATED : JANUARY 21, 2022.
P.C. :
This is an application for suspension of sentence and
grant of bail pending Criminal Appeal No.183 of 2021, preferred
by the applicant/appellant challenging the impugned judgment
and order dated 24th December, 2020, passed by the Special
Court under the POCSO Act. The applicant has been convicted for
Digitally
the ofence under Section 370(2),, 370 A (2),, 376 read with 109 of
signed by
RAJESHRI
RAJESHRI PRAKASH
PRAKASH
AHER
AHER
Date:
Indian Penal Code ("IPC", for short), read with Section 5 of
2022.01.24
16:05:09
+0530
Prevention of Immoral Traficking Act ("PITA Act", for short),. She
has been sentenced to sufer imprisonment of fve years for the
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ofence under Section 5 of PITA Act, 7 years for the ofence under
Section 370(2), of IPC, 5 years for the ofence under Section 370
A(2),, and, 12 years for the ofence under Section 376 read with
109 of IPC. The applicant is acquitted for the ofences punishable
under Section 370 A, 370(4), of IPC and Sections 4 and 6 of
POCSO Act read with Section 4 of PITA Act.
2 Learned counsel for the applicant submitted that the
applicant is in custody for a period of about six years seven
months. She is a lady. There are discrepancies in the evidence of
the witnesses. The evidence of the victim sufers from serious
omissions and contradictions. The medical evidence does not
support the version of the victim/complainant. The Appeal
preferred by the applicant/appellant has been admitted by this
Court, and, pending for fnal disposal. The Appeal has been
admitted recently, and, it may not come up for hearing within
short span of time. Learned advocate pointed out the evidence of
the witnesses and submitted that most of the part of the version
reflected in the evidence of victim is in the nature of omissions.
The medical evidence as spelt out in the deposition of P.W.4, does
not support the version of the victim. The sentence of 12 years
imposed for conviction under Section 376 read with 109 of IPC is
arbitrary.
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3 Learned APP submitted that on perusal of the FIR
lodged by the victim and her evidence would indicate that there
are no serious omissions. The specifc role has been attributed to
the applicant/appellant and the co-accused. The victim was
subjected to illicit traficking. The evidence adduced before the
trial Court supports the prosecution case. The husband of
applicant had sexually assaulted the victim and the applicant has
aided accused no.2 in committing the said act.
4 Learned advocate for respondent no.2 supported
submissions of learned APP. It is submitted that victim was
brought to Mumbai and subjected to illicit traficking. The
accused no.2 has sexually assaulted victim with the aid of
applicant.
5 The applicant/appellant and her husband (accused
no.2), were prosecuted for the ofence punishable under Sections
376(2),(i),(j),(k),(n),, 376 (1), read with 34 of IPC, Section 3(a),, 4, 5(p),
of POCSO Act and Sections 4 and 5 of the PITA Act.
8 The prosecution case is that the victim was a minor.
Her neighbour used to visit the house of victim. She ofered the
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victim to go to Mumbai for a job with salary of Rs.30,000/-. The
victim came to Mumbai from Delhi on 21st May, 2015. She stayed
with accused no.1. The husband of accused no.1 committed
sexual intercourse with the victim. Accused no.1 (applicant), aided
and abetted the co-accused in commission of the said ofence. The
victim was subjected to illicit traficking. She managed to leave
the house of accused and lodged the complaint on 22 nd June,
2015.
7 During the trial, the prosecution has examined about
12 witnesses. The victim has deposed that her neighbour Sita
Buva had induced her to visit Mumbai for job. On 23 rd May, 2015,
she left Delhi with accused and came to Mumbai. The husband of
applicant (accused no.2), committed sexual intercourse with
victim. She stated that she was not taken to Delhi for making
inquiry about Sita Buva. She could not disclose details of train
from Delhi to Mumbai. The role attributed to applicant in the
evidence, that she removed her clothes and caught her legs is not
reflected in her FIR. Her version before Court, that she was taken
to Hyderabad is omission. The investigating oficer had not made
any attempts to fnd out the whereabouts of the neighbour of the
victim, who persuaded her to come to Mumbai. From the
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evidence of P.W.4, Medical oficer who examined the victim stated
that hymen of victim was not intact. There was no evidence of any
tear bleeding or injuries. There is no mention of hymen tears.
Accused no.2 is the husband of the applicant/appellant. He had
allegedly subjected the applicant/appellant to sexual intercourse.
He is also convicted for similar ofences and sentenced to the
maximum sentence of 12 years imprisonment for ofence under
Section 376 of IPC.
8 It is noted that the applicant/appellant is in custody
for six years and seven months. Thus, she has almost undergone
the imprisonment which is awarded to the ofence under Section
370(2), and 270 (A),(2), of IPC. The judgment of the trial Court also
indicate that it is not proved that, victim is minor. The applicant
has been acquitted for the ofences under POCSO Act. The
applicant is acquitted for the ofences under the POCSO Act and
Section 370 A and 370(4), of IPC read with Section 4 of PITA Act.
The applicant is in custody for more than six years.
9 Considering the aforesaid facts and circumstances,
the sentence of imprisonment can be suspended.
10 Hence, I pass the following order:
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:: O R D E R ::
(i), Interim Application No.725 of 2021, is allowed;
(ii), During the pendency of Criminal Appeal No.183 of 2021, the applicant/appellant 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;
(iii), Applicant/appellant is permitted to furnish cash bail security of Rs.25,000/-, for a period of eight weeks, in lieu of surety;
(iv), The applicant/appellant shall attend the trial Court once in six months on frst Saturday of the month between 11:00 a.m. to 01.00 p.m.;
(vi), In the event of two consecutive defaults in attending the trial Court, the prosecution is at liberty to move an application for cancellation of bail;
(vi), Interim Application No.725 of 2021, stands disposed of accordingly.
(PRAKASH D. NAIK, J.)