Mohammed Shoaib Naseer Khan v. The State Of Maharashtra

Tilak 1/4 (19)APEAL-97-14

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.97 of 2014 WITH CRIMINAL APPLICATION NO.335 OF 2014 IN CRIMINAL APPEAL NO.97 OF 2014 Mohammed Shoaib Naseer Khan .. Appellant

Versus

The State of Maharashtra .. Respondent --- Mr.Satyavrat Joshi i/b Mr.Amol D. Joshi, Advocate for the appellant.

Mr.D.P. Adsule, APP for the Respondent State. --- CORAM : ABHAY M. THIPSAY, J.

DATED : 21st SEPTEMBER, 2015 --- P.C:- The Appeal filed by the applicant challenging his conviction in respect of an offence punishable under section 376 of the IPC, and the sentence of Rigorous Imprisonment for 7(seven) years and the fine of Rs.10,000/-, has already been admitted. By the present application, the applicant prays that pending the hearing and final disposal of the Appeal, the substantive sentence imposed upon him be suspended, and that he be released on bail. I have heard Mr.Satyavrat Joshi, learned counsel for the applicant. I have heard Mr.D.P. Adsule, learned APP for the

Tilak 2/4 (19)APEAL-97-14 State. With their assistance, I have glanced through the evidence adduced during the trial. I have gone through the evidence of the victim (PW 1), her husband Rafique (PW 2), Sanjay (PW 3) and Sharad Kumar (PW 6). I have also carefully gone through the medical evidence i.e. the evidence of Dr.Abasaheb Chavan (PW 7). The learned counsel for the applicant submitted, primarily that the case appears to be of consensual sexual intercourse between the appellant and the victim. He submitted that the cross-examination of the victim reveals that the victim and the applicant were friendly, and that the victim had infact accepted costly and expensive presents from the applicant. He submitted that because of the pressure from the victim's husband, a false complaint alleging rape came to be lodged against the applicant. The medical evidence does not show any mark of injury indicating forcible sexual intercourse. The Medical Officer has not given any opinion in that regard.

The case rests solely on the testimony of the victim. The applicant is in custody since 29th June 2012. In the ordinary course, the Appeal is not likely to be heard and disposed of within a short time.

Arguable points, needing consideration have been raised.

Tilak 3/4 (19)APEAL-97-14 In the circumstances, I am inclined to allow the application.

Pending the hearing and final disposal of the Appeal, the substantive sentence imposed upon the applicant shall stand suspended, and the applicant shall be released on bail in the sum of Rs.30,000/- with one surety in like amount on the condition that the applicant shall report to the trial Court on the first Monday of each calendar month, till the disposal of the Appeal. The applicant shall not change his residential address, without giving prior intimation to the Investigating Agency and to this Court about such change and without furnishing his new address.

Application is disposed of accordingly.

(ABHAY M. THIPSAY, J)

Tilak 4/4 (19)APEAL-97-14 CERTIFICATE Certified to be true and correct copy of the original signed Judgment/Order.