Aarish Siraj Mansuri v. State Of Maharashtra And ANR.

Gokhale

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION INTERIM APPLICATION NO. 3311 OF 2024 IN CRIMINAL APPEAL NO.886 OF 2024 Aarish Siraj Mansuri ..Applicant

Versus

The State of Maharashtra & Ors.

..Respondents __________ Ms. Saba Shaikh for Applicant.

Ms. Ranjana D. Humane, APP for State/Respondent. __________ CORAM : SARANG V. KOTWAL, J.

DATE : 11 SEPTEMBER 2024 PC :

1.

This is an application for bail pending appeal. The Applicant was the accused in Special (Atrocity) Case No.15 of 2013 before the Special Judge, Malegaon. The learned Judge, vide the Judgment and order dated 15.07.2024 convicted the applicant for the offence punishable under section 354 of the I.P.C. for each of the three instances and was sentenced to suffer R.I. for two years each for the three offences. In all, the sentence imposed was R.I. for six years and to pay a fine of Rs.10000/- for each of the three offences and in default to suffer R.I. for three months for Digitally signed by VINOD BHASKAR GOKHALE Date:

2024.09.12 14:42:58 +0530 VINOD BHASKAR GOKHALE

each of the three offences.

2.

The applicant was also convicted for commission of offence punishable U/s.509 of the I.P.C. and was sentenced to suffer S.I. for six months and to pay a fine of Rs.2000/- and in default to suffer S.I. for one month. He was further convicted U/s.323 of the I.P.C. and was sentenced to suffer R.I. for six months and to pay a fine of Rs.1000/- and in default to suffer R.I. for 15 days. He was convicted U/s.504 of the I.P.C. and was sentenced to suffer R.I. for one year and to pay a fine of Rs.2000/- and in default to suffer R.I. for one month. The substantive sentences under section 354 of the I.P.C. were directed to run consecutively and for the other sections, the sentences were directed to run concurrently.

3.

The applicant was acquitted from the offence punishable under section 3(1)(w)(i)(ii) r/w. Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC & ST Act'). The applicant was given set off U/s.428 of the Cr.p.c. The compensation of Rs.10000/- each was directed to be paid to the victims PW-2, PW-3

and PW-5 and Rs.2000/- to PW-4.

4.

The prosecution case is that the incident took place on 15.10.2019 in the evening at about 6:45p.m., 3 to 4 friends who were the victims in this case were going home after attending their class at around 8:00p.m. Suddenly, one boy came on his motorcycle and outraged modesty of these victims. One of them gave her F.I.R. which was registered at Satana police station vide C.R.No.I 178 of 2012.

5.

Learned counsel for the applicant submitted that the learned Judge committed an error by imposing separate sentences of two years each for different allegations of committing the offence of outraging modesty of the victims separately. No separate charge for those offences was framed and, therefore, the impugned Judgment is not sustainable. She further submitted that, identity of the applicant is in serious doubt. Admittedly, the offender was not known to the victims. The test identification parade was not conducted. The applicant was identified by the victims in the trial Court after about 10 years. The applicant was the sole accused, therefore, it was not very difficult to identify him in the Court.

6.

Learned APP submitted that, there is evidence to show that the applicant was at the spot. The Judgment indicates that the applicant has accepted his presence at the spot. She submitted that the identification in the court is sufficient. 7.

I have considered these submissions. As submitted by the learned counsel for the applicant, the charge is framed against the applicant U/s.354, 509, 323 and 504 of the I.P.C. and U/s. 3(1)(w) (i)(ii) r/w. Section 3(1)(r)(s) of the SC & ST Act. However, in the first paragraph of the charge it is mentioned that the applicant had used criminal force in outraging modesty of three girls. No separate charge for each of the incidents was framed. Therefore, the submissions made by the learned counsel for the applicant that the operative part of the impugned judgment is unsustainable will have to be considered seriously at the final hearing stage. According to her, no separate charges were framed. The learned Judge could not have separately convicted for each of those allegations and the learned Judge could not have made those sentences consecutive. She invited my attention to the evidence of the victims who were examined in this case.

8.

PW-3 had identified the applicant in the court. However, there was no test identification parade held. The allegations are that the applicant had touched her inappropriately on her chest. Similar is in the case of PW-4. She had also identified the applicant only in the court after about 10 years from the date of incident. There was no test identification parade to enable her to identify the applicant at around time the offence was committed. 9.

PW-5 was another victim. She was declared hostile. She has deposed that no such incident had taken place. 10.

PW-6 has supported the prosecution case, but she was not made to identify the applicant in the court as the applicant was granted exemption when her evidence was recorded. Again, in her case, the test identification parade was not conducted. Her evidence was recorded after about 10 years.

11.

The learned Judge has relied on the evidence of PW-7 who has mentioned that, he and others had gone to the spot in search of the offender when one of the victims had narrated the incident to PW-7 and others. He has further deposed that, one boy was intercepted when he was riding the motorcycle. He begged for

pardon. The police came and took him away. However, PW-7 did not identify the applicant in the Court. Thus, it can be seen that, identity of the applicant is in serious doubt. 12.

Considering all this discussion, the applicant has made out a case for grant of bail during pendency of his Appeal. The applicant was on bail during trial. There are no allegations that he had misused that liberty. Even after his conviction, the applicant was granted bail U/s.389 of the Cr.p.c.

13.

Hence, the following order:

O R D E R

i) During pendency and final disposal of Criminal Appeal No.886 of 2024, the Applicant is directed to be released on bail on his furnishing P. R. bond in the sum of Rs.30000/- with one or two sureties in the like amount.

ii) The Application is disposed of.

(SARANG V. KOTWAL, J.)