35 ia 730 of 2026.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION INTERIM APPLICATION NO.730 OF 2026 IN CRIMINAL APPEAL NO.687 OF 2026 Babalu @ Mohammed Mustapha ... Applicant versus The State of Maharashtra and Anr. … Respondents Mr. M.I.Zarodarwala, for Applicant. Mr. D.J.Haldankar, APP for State. Mr. Ajay Talreja, for Respondent No.2. CORAM: N.J.JAMADAR, J. DATE : 17 SEPTEMBER 2026 P.C. 1. Heard the learned Counsel for the parties. 2. This is an application for suspension of sentence and to enlarge the applicant on bail during the pendency of the appeal. 3. By a judgment and order dated 14 May 2025, the applicant has been found guilty of the offences punishable under Sections 376(2)(i) and 506 of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012. The applicant – accused has been sentenced to suffer RI for 10 years and pay a fine of Rs.10,000/- with default stipulation. 4. The indictment against the applicant was that on 6 July 2013, at about 5.30 p.m. while the victim, who was then studying in 6th standard, was on her way to home from school, the applicant threatened to kill the brothers of the SSP 1/4 2026:BHC-AS:38133 35 ia 730 of 2026.doc victim if she did not accompany him to his house, which was on the 4th floor of the same building. The victim was, thus, forced to go to the house of the applicant. Thereupon, the applicant undressed himself and forced the victim to remove her clothes and forcibly committed sexual intercourse with the victim. After the victim returned to her home, she narrated the incident to her parents. The applicant came to be apprehended and sent for trial. 5. Mr. Zarodarwala, learned Counsel for the applicant, submitted that, there were material discrepancies in the evidence of the victim. Omissions and contradictions in the testimony of the victim rendered her evidence unworthy of credence. An endeavour was made to demonstrate the discrepancies in the testimony of the victim and the version narrated before the Medical Officer. Mr. Zarodarwala further submitted that, the applicant has already undergone a sentence of more than two and half years and as the hearing of the appeal may take time, the applicant be enlarged on bail. 6. Learned APP and the learned Counsel appointed to espouse the cause of the Respondent No.2 – victim, strongly opposed the prayer for suspension of sentence. 7. At the outset, it is necessary to note that at the stage of consideration of an Application for suspension of sentence, the Appellate Court is not expected to meticulously evaluate the material on record. Only the prima facie merits of the Appeal and the attendant factors which bear upon the exercise of SSP 2/4 35 ia 730 of 2026.doc discretion are required to be examined. On the basis of the material on record, the Court has to analyze whether the prosecution case which found favour with the Trial Court is such that the convict stands a fair chance of success in Appeal. If the Court can prima facie draw an inference that ultimately the convict may be entitled to an acquittal, the Court may exercise the discretion to suspend the sentence and enlarge the convict on bail. However, the Appellate Court is required to refrain from re-appreciating of the evidence and trying to pick up lacunae, loopholes or shortcomings in the prosecution case. 8. A case where a convict is sentenced to suffer a fixed term of imprisonment also stands on a slightly different footing. Ordinarily, where the convict is sentenced to suffer fixed term sentence and it is unlikely that the Appeal can be heard expeditiously and the convict has undergone a substantial part of sentence, the Court may exercise the discretion to grant bail during the pendency of the Appeal unless there are exceptional circumstances. 9. On the aforesaid touchstone, if the evidence and material on record is examined, I find it difficult to accede to the submissions sought to be canvassed on behalf of the applicant. Suffice to note that, the victim was steadfast in narrating the manner in which the applicant subjected her to penetrative sexual assault. Minor discrepancies as to the circumstances in SSP 3/4 35 ia 730 of 2026.doc which the victim was made to reach the house of the applicant are of no significance at this juncture. 10. Prima facie, the testimony of the victim finds support in the evidence of the Medical Officer (PW4). The Medical Officer has categorically deposed that the hymen was ruptured and there was evidence of penetrative vaginal force. Moreover, the report about the incident was lodged under few hours of the alleged occurrence. The testimony of victim’s mother, prima facie, corroborates the testimony of the victim. 11. In substance, the applicant has not succeeded in demonstrating that he has a strong chance of success in the appeal. Thus, though the applicant has been sentenced to suffer a fixed term of imprisonment, yet, the gravity of the offence, nature of the evidence, situation in life of the parties and the circumstances of the case dissuade the Court from exercising discretion in favour of the Applicant. 12. The Interim Application, thus, stands rejected. 13. However, the hearing of the Appeal stands expedited. ( N.J.JAMADAR, J. ) SSP 4/4 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 18/09/2026 18:38:17