CHETAN RAM RATHODversusTHE STATE OF MAHARASHTRA AND ORS.

                                                                           CRIA-186-2026 & CRIA-89-2026.doc


          Digitally signed
          by HARISH
                                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
HARISH
                                                    CIRCUIT BENCH AT KOLHAPUR
          VITHAL
VITHAL    CHAUDHARI
CHAUDHARI Date:
                                                  CRIMINAL APPELLATE JURISDICTION
          2026.09.23
          10:56:13 +0530




                                            CRI-INTERIM APPLICATION NO. 186 OF 2026
                                                              IN
                                                    CR. APPEAL NO. 2 OF 2025
                             Dinesh Parshu Rathod                               ...Applicant.
                                     Versus
                             The State Of Maharashtra And Another               ...Respondents.

                                                             WITH
                                             CRI-INTERIM APPLICATION NO. 89 OF 2026
                                                               IN
                                                    CR. APPEAL NO. 14 OF 2025
                             Chetan Ram Rathod                                  ...Applicant.
                                     Versus
                             The State Of Maharashtra And Others                ...Respondents.
                                                             ——————
                             Adv. Mahesh Vaswani a/w adv.Shreya Tiwari a/w Adv. Bhagyashri Mangle and
                             Adv. Ketan Patil for the Applicant in IA/89/2025.
                             Adv. Priyal Sarda a/w Adv. Onkar Bajaj for Appellant in APPEAL/2/2025.
                             Adv. B. R. Mangale for Appellant in APPEAL/14/2025.
                             Adv. Tanvi Tapkire for Respondent No.2 (Appointed through Legal Aid).
                             Dr. Ashvini A Takalkar, APP for Respondent-State.
                             Mr. Vishnu Gaikwad (API) Vijapur Naka Police Station present in court.
                                                             ——————

                                                               Coram :   Sharmila U. Deshmukh &
                                                                         Neeraj P. Dhote, JJ.
                                                       Reserved on :     17th September, 2026
                                                     Pronounced on :     23rd September, 2026

                             FINAL ORDER : (PER NEERAJ P. DHOTE J.)


                             1.       These are the Interim Applications by convict No. 2 Dinesh Parshu

                             Rathod (Tiktok King) and convict No. 3 Chetan Ram Rathod for



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suspension of sentence awarded by the learned Special Judge, Solapur

in Special Case No. 275 of 2020 by Judgment and Order dated 5 th

November 2024. The operative order of the Judgment is reproduced

below:

         1.      Accused No.1 Rohit Sham Rathod, No. 2 Dinesh Parshu
         Rathod (Ticktock King) and No. 3 Chetan Ram Rathod are
         found guilty and hereby convicted under section 235 (2) of
         the Code of Criminal Procedure, for the offences PUS 376 (2)
         (n), 376 (3) and 506 of the I.P.C and U/s.3 PUS 4 and U/s.5
         PUS 6 of POCSO Act.

         2.      Accused No.1 Rohit Sham Rathod, No. 2 Dinesh Parshu
         Rathod (Ticktock King) and No. 3 Chetan Ram Rathod are
         hereby sentenced to suffer Rigorous Imprisonment for Life
         which shall mean imprisonment for the remainder of their
         natural life for the offence U/s.3 PUS 4 of Protection of
         Children from Sexual Offences Act, 2012 and liable to pay
         fine of Rs.10,000/- each, in default of payment of fine, to
         suffer further Rigorous Imprisonment for two months each.

         3.      Accused No.1 Rohit Sham Rathod, No. 2 Dinesh Parshu
         Rathod (Ticktock King) and No. 3 Chetan Ram Rathod are
         hereby sentenced to suffer Rigorous Imprisonment for Life
         which shall mean imprisonment for the remainder of their
         natural life for the offence U/s.5 (g) PUS 6 of Protection of
         Children from Sexual Offences Act, 2012 and liable to pay
         fine of Rs.10,000/-each, in default of payment of fine, to
         suffer further Rigorous Imprisonment for two months each.

         4.      Accused No.1 Rohit Sham Rathod, No. 2 Dinesh Parshu
         Rathod (Ticktock King) and No. 3 Chetan Ram Rathod are
         hereby convicted for offence PUS 506 of IPC and sentenced to
         suffer Rigorous Imprisonment for Two Years and liable to pay
         fine of Rs.1,000/- each, in default of payment of fine, to
         suffer further Rigorous Imprisonment for two months each.

         5.     All the above sentence shall run concurrently.

         6.     In view of Section 42 of POCSO Act, no separate


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         sentence is awarded for offences PUS 376 (2)(n), 376 (3) and
         376 (DA) of the Indian Penal Code.

         7.     Accused No.1 Rohit Sham Rathod, No. 2 Dinesh Parshu
         Rathod (Ticktock King) and No. 3 Chetan Ram Rathod are
         acquitted of the offence PUS 3 (1)(w)(i) and 3 (2)(va) of the
         SC and ST (Prevention of Atrocities) Act.
         8.     Accused No.1 Rohit Sham Rathod and No. 3 Chetan
         Ram Rathod are in jail from 12/03/2020 and No. 2 Dinesh
         Parshu Rathod (Ticktock King) is in jail from 17/02/2020.
         Therefore, set-off for the said period be given to them as per
         Section 428 of Cr.P.C.

         9.     …..   …..    …..   …..   …..     …..   …..   …..    …..”

         10.    …..   …..    …..   …..   …..     …..   …..   …..    …..”

         11.    …..   …..    …..   …..   …..     …..   …..   …..    …..”

         12.    …..   …..    …..   …..   …..     …..   …..   …..    …..”

         13.    …..   …..    …..   …..   …..     …..   …..   …..    …..”

         14.    …..   …..    …..   …..   …..     …..   …..   …..    …..”



2.        It is the prosecution's case that, the victim who at the relevant

time was the child aged about 15 years and 2 months was subjected to

forcible sexual intercourse by different persons at different times

between September 2019 and 11th                February 2020. As against the

present crime is concerned, it is the prosecution's case that, all the three

convicts went to the college where the victim was studying and took her

in front of the Samruddhi Mangal Karyalay which was ahead of D-Mart

by the car. She was raped forcefully and thereafter she was dropped at


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one place by threatening that, she should come again otherwise she

would be killed. When on 11 th February 2020, the victim was seen crying

at the Maruti temple by one person, the said person informed the police

and the police took the victim to the police station. The victim's mother

was informed. The victim narrated the various incidences of forcible

rape on her by various persons and narrated the incident in question.

For the incident in question, the crime came to be registered against the

Applicants and convict No. 1 for the offences punishable under Section

376(2)(n), 376(3) and 506 of Indian Penal Code, 1860 (for short 'IPC'), for

the offences punishable under Section 4 and 6 of the Protection of

Children from Sexual Offences Act, 2012 (for short 'POCSO') and under

Section 3(1)(w)(i) and Section 3(2)(v)(a) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SCST

Act').

3.       After investigation, the charge-sheet came to be filed and charge

for the offences punishable under the aforesaid sections came to be

framed against the Applicants and convict No. 1. The prosecution led

the evidence and considering the evidence on record, the learned trial

Court convicted and sentenced the Applicants and convict No. 1.

4.       Heard the learned counsels for the Applicants, learned APP for

the prosecution and learned counsel for the victim.

(a)      It is submitted by learned counsel for the Applicant in Interim


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Application No. 186 of 2026 that, the evidence on record goes to show

that the Applicant was not known to the victim prior to the date of

incident. It has come in the evidence of the victim that, the Applicant

was not the auto driver. There are material improvements/omissions in

the testimony of the victim. The Test Identification Parade (TIP) was

conducted in flagrant violation of the rules/guidelines. The identity of

the Applicant as the person who committed rape is not established. The

place of offence was not proved. The victim did not disclose the incident

immediately to anybody. Before the medical examination, the victim

narrated all the incidents between September 2019 and December 2019

and the offence in question was of 6 th January, 2020. The Applicant is

behind bars for a period of about 6 years and 7 months and he be

released on bail by suspending the sentence during pendency of the

Appeal.

(b)      It is submitted by learned counsel for the Applicant in Interim

Application No. 89 of 2026 that, the Applicant was not known to the

victim. The victim in her evidence nowhere deposed that, the Applicant

had penetrative sexual assault with her. The role attributed to the

Applicant was that, he was guarding the place of incident. The memo of

the TIP was prepared after 7 days, which creates a serious doubt about

the process of TIP. There are vital improvements/omissions in the

testimony of the victim, which makes her testimony unbelievable. The


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history given to the medical officer was of the incidences from

September 2019 to December 2019. The evidence on record do not

establish the charge against the Applicant and he be released on bail by

suspending his sentence during pendency of the Appeal. The Applicant

is behind bars for a period of more than 6 years.

5.       It is submitted by learned APP and the learned counsel for the

victim that, the prosecution proved that, the victim was the child below

the age of 16 years. The date of birth of the victim was proved by

examining the witness from the office of Municipal Council where her

birth record was maintained. The evidence of the victim goes to show

that, prior to the incident she knew the Applicants. The victim identified

the Applicants in the Court and also in the TIP. The prosecution proved

the foundational facts of the case and the presumption under Section

29 and 30 of the POCSO comes into play. The Applicants failed to rebut

the presumption. The Explanation to Section 5(g) of the POCSO would

bring the Applicant in Interim Application No. 89 of 2026 within the

ambit of the charge for the offence under Section 5 of POCSO and

punishable under Section 6 of POCSO. The evidence of the victim was

natural and she had no reason to falsely implicate the Applicants. There

is sufficient material in support of the charge and the learned trial Court

has rightly convicted and sentenced the Applicants and the Applications

be rejected.


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6.       Both the sides took us through the relevant evidence on record,

particularly the evidence of the victim who is examined as PW-2. In her

substantive evidence before the learned trial Court, she deposed of the

incident of sexual assault by the convicts in the case at hand. The

relevant part of her deposition is reproduced below:

          “11}        After 1-2 days, Rohit, ticktock king and Chetan
          came to my college by car. Ticktock king and Chetan were the
          friends of Rohit. At that time, college was over. The car was
          silver coloured. They took me to the road in front of Smruddhi
          Mangal Karyalaya which is ahead to D Mart by that car. Rohit
          was driving that car. Ticktock king was sitting near to Rohit on
          front seat. I was sitting on the back side. Chetan sat near me
          on back side seat. Ticktock king is also known by the name of
          Dinesh. Firstly, Rohit established forcibly sexual intercourse
          with me in the same car. Ticktock king and Chetan were out of
          car and keeping watch. Then, ticktock king established
          forcibly sexual intercourse with me in the same car. At that
          time Chetan and Rohit were out of car and keeping watch.
          When I refused they gagged my mouth. They used condom
          while causing forcibly sexual intercourse with me. They all
          threatened me in terms not to disclose incident anyone
          otherwise they will not live me. They dropped me at saat rasta
          by the same car. While returning, Chetan sat near me. He was
          touching my whole body. He was moving his hand from my
          body. He was attempting to kiss me. I was attempting to
          shaken but he was not listening. They also threatened me that
          I should come again otherwise they will kill myself and my
          family members.”

7.       The learned counsel for the Applicants would emphasise that the

cross-examination of the victim shows that, prior to the incident, she

was not knowing the Applicants. The evidence of the victim shows that,



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at the time of recording her evidence, she identified the Applicants. The

said identification has come in paragraph No. 61 of her evidence. Her

evidence shows that, the incident was of broad day light. The

identification of the Applicants before the learned trial Court is

corroborated by the identification in the TIP. The learned trial Court

made the following observations in respect of the evidence of TIP:

         “Test Identification Parade :

         118.        Evidence of PW11 Suvarna, Nayab Tahsildar and
         PW-12 Pundlik Kashid is about the test identification parade
         of accused No.1 Rohit Sham Rathod, No.2 Dinesh Parshu
         Rthod (Ticktock King) and No. 3 Chetan Ram Rathod. Before
         this incident, accused No.2 Dinesh is having prior
         acquaintance with the victim and he was stalking the victim
         continously. Accused No. 1 Rohit is having prior acquantance
         with the victim as, he is carrying the victim in aforesaid car
         and in other car also (in SP.C no. 273/2020) prior to this
         incident. Accused No. 3 Chetan was accompanied with
         accused Nos. 1 and 2 at the time of incident. Accused No. 1 to
         3 took the victim in car in broad day light and committed
         forceful sexaul intercrouse with the victim on the spot of
         incident. Therefore, the victim and accused No.1 to 3 have
         spent sufficient time to have prior and subsequent
         acquaintance. It is not the case based on circumstantial
         evidence. It is not the case of the accused no. 1 to 3 that at the
         time of incident, there was no broad day light and victim was
         unable to see them. Inspite of that identification parade of the
         accused No.1 to 3 was taken, during identification parade and
         dock identification in Court, the victim has identified accused
         No.1 to 3. In such circumstances, Test Identification is not
         necessary when the accused No.1 to 3 is well known to the
         witness. If the witness is already familiar with the accused
         No.1 to 3, there may be no need for a formal identification


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          parade. It's worth noting that Test Identification Parades are
          not always essential and their necessity can vary based on the
          circumstances of the case.….”

8.       It is the settled position under the law that, the Appellate Court is

not expected to re-appreciate the evidence at the stage of considering

the application for suspension of sentence. The legal position in that

regard is reiterated in Aasif alias Pasha vs. State of U.P. and Others;

[2025 SCC OnLine SC 1644] and Dhan Jee Pandey vs. The State of

Bihar and Another; [2026 SCC OnLine SC 581]. What is required to be

seen at this stage is as to whether the convicts have fair chances of

acquittal. The parameters governing the suspension of sentence post-

conviction are qualitatively distinct from those applicable at the stage

of pre-trial bail. Upon conviction, the presumption of innocence stands

displaced by a judicial determination of guilt and the appellate Court is

required to exercise its jurisdiction under Section 389 of the Cr.P.C. with

due circumspection and restraint.

9.       The learned counsel for the Applicant in Application No. 89 of

2026 relied on the Judgments in Sunil Kumar vs. Vipin Kumar and

Others; [(2014) 8 SCC 868] and Kashmira Singh vs. State of Punjab;

[(1977) 4 SCC 291]. In Sunil Kumar (supra), the Appellant who was

studying in the college happened to be at the Shikarpur crossing when

convicted Respondent Nos. 2 and 3 dragged him into their house and

began to assault. Hearing the cries, the Appellant's father and brother


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arrived at the scene to his rescue. In the scuffle which ensued, both the

father and the brother of the Appellant got injured which led to the

consequential death of the Appellant's brother. The charge-sheet was

submitted for the offences punishable under Section 302, 307 read with

34 of IPC and for the offence punishable under Section 4 read with 25 of

the Arms Act. The High Court by using the discretionary powers under

Section 389 of Cr.P.C. granted bail and they were on bail on earlier

occasion and they did not misuse the liberty. The order of granting bail

was not interfered with and the Appeal was dismissed. In Kashmira

Singh (supra), the Appellant was convicted for the offence punishable

under Section 323 of IPC and was acquitted for the offence punishable

under Section 302 of IPC. In the Appeal preferred by the State against

acquittal, the High Court set aside the order of acquittal and convicted

the Appellant for the offence punishable under Section 302 and

sentenced him to suffer imprisonment for life. The Petition for Special

Leave to Appeal was filed and the Special Leave was granted. On finding

that the Appellant was having prima facie good case to consider and the

Special Leave to Appeal was granted, the prayer for bail was granted.

10.      It is clear that the facts of the aforesaid cases and the facts of the

case at hand are different. The conviction is for the offence of rape and

for the offence punishable under the POCSO Act. The prosecution led

the evidence to prove that the victim was child at the time of incident by


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proving her date of birth by bringing on record her birth certificate.

Section 29 and Section 30 of the POCSO provides for presumption. The

Explanation to Section 5(g) of the POCSO, which is in respect of

aggravated penetrative sexual assault and in respect of gang

penetrative sexual assault on a child, provides that “when a child is

subjected to sexual assault by one or more persons of a group in

furtherance of their common intention, each of such persons shall be

deemed to have committed gang penetrative sexual assault within the

meaning of this clause and each of such person shall be liable for that act

in the same manner as if it were done by him alone; or.” In the light of the

said provisions under Section 5(g) of the POCSO, the submission of the

learned counsels for the Applicant in Interim Application No. 89 of 2026

that the role attributed to the Applicant was that he was guarding the

place of incident will not be of any assistance.

11.      From the evidence on record, it is seen that, prima facie, the

prosecution has established the foundational facts of the incident in

question by examining the victim. The medical evidence in the nature of

testimony of PW-8 Dr. Savitri R. Nandimath indicates that, on

examination of the victim on 12.02.2020, she found that, hymen was

torn, there were multiple tears, injury present, edges were irregular,

bleeding absent, oedme absent. The learned trial Court, on appreciating

the evidence on record and by considering the relevant provisions of IPC


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and POCSO, observed that “From the oral and documentary evidence, it

is clear that as per Section 376 (2)(n), 376(3) of Indian Penal Code and

under Section 3 PUS 4, U/s. 5(g) PUS 6 of POCSO Act, the prosecution has

proved that the accused No. 1 to 3 have committed gang penetrative

sexual assault repeatedly/one after another with the victim, who is a child

within the meaning of Section 2(d) of POCSO Act. The accused No. 1 to 3

have threatened the victim and thereby committed offence PUS 506 of

IPC. Thus, the accused No. 1 to 3 are held guilty for aforesaid offence.

Here, I take pause to hear accused No. 1 to 3 on the point of sentence.”

12.      Considering the nature of the proved offence, the punishment

imposed and in the light of the aforesaid discussion, in our considered

view, this is not a fit case to exercise the powers of suspension of

sentence and hence, the following order:

                                   ORDER

          Interim Application No. 186 of 2026 in Criminal Appeal No. 2
          of 2025 and Interim Application No. 89 of 2026 in Criminal
          Appeal No.14 of 2025 are dismissed.



 [Neeraj P. Dhote, J.]                       [Sharmila U. Deshmukh, J.]




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