1/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application [APPA] No.279 of 2026 IN Criminal Appeal No.177 of 2026 Mahesh Maroti Chawale Vs. The State of Maharashtra and another. Office Notes, Office Memoranda of Coram, Appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. Anil Mardikar, Senior Advocate assisted by Mr. S.A.Kanetkar, Advocate for applicant/appellant. Ms. Prachi Joshi, APP for Non-Applicant no.1. Ms.Varsha A. Warade, Advocate(Appointed) for Non-applicant no.2/Victim. CORAM : Y.G. KHOBRAGADE, J. DATE OF RESERVING THE ORDER : 23.09.2026 DATE OF PRONOUNCING THE ORDER: 05/10/2026. 1. Heard Mr.Anil Mardikar, learned Senior Counsel appearing for applicant, Ms. Prachi Joshi, learned APP appearing for non-applicant no.1 and Ms. Varsha A.Warade, learned counsel appearing for non-applicant no.2. 2. By the present application under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS’), the applicant seeks suspension of sentence and grant of bail consequent upon the judgment and order dated 04/03/2026 passed by the learned Special Judge-1 & Additional Sessions Judge, Kelapur, District Yavatmal, in Special Case Child Prot.No.6/2017, whereby the applicant/accused was convicted and sentenced as follows: a) Rigorous Imprisonment (R.I.) for six months for the offence punishable under Section 342 of the Indian Penal Code (for short `the IPC’) with fine of Rs.500/-. b) R.I. for three years for the offence punishable under Section 354 of IPC with fine of Rs.5,000/-. c) R.I. for two years for the offence punishable under Section 354-D of IPC with fine of Rs. 2,000/- 2/6 d) R.I. for two years for the offence punishable under Section 506 of IPC with fine of Rs. 1,000/-. e) R.I. for twenty years for the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) with fine of Rs. 10,000/-. f) R.I. for three years for the offence punishable under Section 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 (for short `the Act of 1989’) with fine of Rs. 2,000/-. g) R.I. for three years for the offence punishable under Section 3(1)(w)(ii) of Act of 1989 with fine of Rs. 2,000/-. h) R.I. for three years for the offence punishable under Section 3(2) (va) of the Act of 1989 in respect of Section 354 of IPC with fine of Rs. 3,000/-. i) R.I. for 10 years for the offence punishable under Section 3 (2) (va) of the Act 1989 in respect of offence u/s Section 376 of IPC with fine of Rs. 5,000/-. However, no separate sentence was awarded for the offence under Section 376(2)(n) and (i) of IPC, in view of Section 42 of the POCSO Act for the offence punishble under Section 4 of the POCSO Act. 3. Mr. Mardikar, learned Senior counsel for the applicant has canvassed that, the conviction recorded by the learned Trial Court suffers from serious infirmities in appreciation of the evidence. It is further canvassed that, material omissions and contradictions have been brought out in the testimony of the Victim/PW-3 and other prosecution witnesses. It is also submitted that, the prosecution has not examined Nisha, a friend of the victim, who, according to the prosecution, was accompanying the victim immediately prior to the alleged occurrence and was stated to be a material witness. 4. It is further canvassed that, the medical evidence does not disclose any external injuries on the body of the victim. The learned Senior counsel 3/6 appearing for the applicant canvassed that, the circumstances appearing from the record itself indicate that, the prosecution has failed to establish its case beyond reasonable doubt. It is, therefore, submitted that the applicant has raised substantial grounds for suspension of sentence and is entitled to be released on bail during the pendency of appeal. 5. Per contra, the learned APP strongly opposes the application for suspension of sentence and grant of bail. It is canvassed that, at the time of offence, the victim was a child within the meaning of Section 2(d) of POCSO Act. Even prior to the incident, the applicant/accused had allegedly been stalking the victim while she was going to school. It is further submitted that, on the day of incident i.e.13-01-2017 at about 6.30 pm., when the victim was returning home after her dance practice, the applicant/accused caught hold of her right hand and dragged her away, due to which Nisha, the friend of victim, was frightened and fled away from the spot. Thereafter, the applicant forcefully took the victim to a field, tied her both legs and hands and forcibly subjected her to sexual intercourse two or three times during the said night. Further, the prosecution has proved the charges against the applicant beyond reasonable doubt. Hence, the applicant is not entitled for suspension of sentence or grant of bail. The learned APP, therefore, prays for rejection of the application. 6. No doubt, it is a matter of record that, Crime No.5 of 2017 was registered at Shirpur Police Station against the applicant/accused for the offences punishable under Sections 342, 354, 354-D, 376(2)(n), 376(2)(i), 506 of the IPC, Section 4 of the POCSO Act, and Sections 3(1)(w)(i), 3(1)(w)(ii) and 3(2)(va) of the Act, 1989. The prosecution examined a total of twelve witnesses. Upon conclusion of trial, the learned Trial Court passed the impugned judgment and order, convicting the applicant for aforesaid offences and awarded a maximum sentence of twenty years’ rigorous imprisonment for the offence punishable under Section 4 of the POCSO Act. 7. According to the prosecution, the date of birth of victim is 30-01-2002, and the incident occurred on 13-01-2017. Accordingly, the victim was a child within the meaning of Section 2 (d) of the POCSO Act. However, it is submitted that, the prosecution has not produced the victim’s birth certificate 4/6 maintained under the provisions of the Registrations of Births and Deaths Act, 1969. The prosecution has proved the School Admission Register at Exhibit-205. However, P. W. 9 - the Head Master of the Victim's School, admitted in his cross- examination that, there was no document or information to show that, prior to 01-07-2011, the victim was taking education in any School. As per the original Register at Exhibit-105, no document establishing the victim’s age was either obtained or verified. Therefore, it appears that, there is material contradictions in respect of date of birth of the victim. 8. The medical evidence also assumes significance. As reflected in Exhibit-90, the medical examination of the victim does not disclose any external injuries. This circumstance assumes significance in the context of the victim’s testimony that, she was tied to a babool tree with a yellow nylon rope. The Medical Officer (PW-7) opined that, he had not noticed any injury over the back region of the victim. Therefore, in absence of injuries, by itself, cannot disprove an allegation of sexual assault. However, the medical findings constitute a relevant circumstance which, when considered cumulatively with the other material on record, gives rise to an arguable issue at the stage of suspension of sentence. 9. In the case at hand, the circumstances relating to the place of incident also merit consideration. The material on record indicates that the alleged place of occurrence was not entirely isolated location. If the alleged occurrence had taken place at such an open and accessible location, the possibility of the presence of persons, who could have witnessed the occurrence cannot be completely ruled out. The non-examination of such a material witness like Nisha and non-disclosure of fact that the applicant had taken the victim away by the applicant/ accused soon after the victim's father met Nisha at her house and enquired about the whereabouts of the victim. These circumstances, particularly when it is considered along with the medical evidence, omissions and contradictions appearing on record, give rise to issues that require consideration at the time of hearing the appeal. 10. It is matter of record that, the applicant was on bail throughout the trial, from 14/07/2017 till 25/02/2026. There is no material on record to 5/6 indicate that, the applicant/accused misused the liberty granted to him while on bail, attempted to influence any witness, or otherwise obstructed during the course of the trial. So also, the applicant has no criminal antecedents apart from the present conviction. In the case at hand, while considering an application under Section 430 of the BNSS, this Court is required to exercise its discretion judiciously and for reasons to be recorded. At this stage, a detailed reappreciation of the evidence, as would be undertaken at the final hearing of the appeal, is not warranted. 11. Therefore, taking into consideration the fact that, the applicant is a young person with no criminal antecedents apart from the present conviction and having regard to the evidence available on record coupled with applicant's conduct while on bail during the trial, this Court is of the view that that, the sentence awarded deserves to be suspended during the pendency of the appeal and that the applicant is entitled to release on bail. 12. The observations made herein are prima facie in nature and are confined to the consideration of the present application under Section 430 of the BNSS. They shall not be construed as an expression of opinion on the merits of the appeal. The issues relating to the credibility of witnesses, omissions and contradictions, appreciation of medical and other evidence, and the ultimate sustainability of the conviction shall be considered independently at the time of final hearing. 13. In view of the above, I am inclined to suspend the substantive sentences awarded to the applicant and enlarge him on bail during the pendency of appeal. Hence, I proceed to pass the following order: O R D E R (i) Criminal Application No. 279 of 2026 is hereby allowed. (ii) The substantive sentences awarded to the applicant by the learned Special Judge-1 & Additional Sessions Judge, Kelapur, District Yavatmal, vide judgment and order dated 04-03-2026 in Special Case Child Prot.No.6/2017, are hereby suspended during the pendency of the appeal. (iii) The applicant - Mahesh Maroti Chawale, shall be released on bail upon furnishing a P.R.bond in the sum of Rs.25,000/- (Rupees Twenty-Five 6/6 Thousand Only), with two solvent sureties in the like amount, in connection with Crime No.5/2017 registered at Police Station, Shirpur, Taluka Wani, District Yavatmal. The bond and sureties shall be furnished before the Trial Court. (iv) The applicant shall attend concerned Police Station once in every month, i.e. on the 10th day of every month, until further orders. (v) The applicant shall furnish his current address and mobile number to the concerned Police Station and shall keep his mobile number operational during the pendency of the appeal. The applicant shall not change the address without prior permission of the Investigating Officer and shall supply cell numbers of his two closed relatives. (vi) The applicant shall not tamper with the prosecution evidence or influence the prosecution witnesses in any manner. (vii) The applicant shall not commit any offence during the period of suspension of sentence and shall abide by the conditions mentioned hereinabove. In the event of breach of any of these conditions, the bail granted to the applicant/appellant shall be liable to be cancelled. (viii) The legal fees for the appointed counsel for non-applicant no. 2 shall be quantified and paid by the High Court Legal Services Authority, Nagpur, in accordance with the applicable Rules. The application stands disposed of in the aforesaid terms. (Y. G. Khobragade, J.) mukund ambulkar Signed by: Ambulkar (MLA) Designation: Senior Pvt. Secretary Date: 05/10/2026 11:57:51