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Bombay High Court

ARUN BHAGWAN GAVLIversusTHE STATE OF MAHARASHTRA

Disposal
DISPOSED OFF

Holding

The Court held that there was no ground to grant suspension of sentence or bail as the victim was a minor and consent is not a defence.

Summary

The accused, Arun Gavli, was convicted by a Special Judge under Sections 363 and 376(2)(i)(n) of the IPC and Section 6 of the POCSO Act for kidnapping and rape of a minor. He filed an application seeking suspension of his sentence and bail, arguing that the victim had spent time with him and that the relationship was consensual, and that the appeal pending could be heard later. The State contended that the victim was a minor (14 years 8 months) and that consent is not a defence under the POCSO Act. The High Court examined the evidence, including the victim’s age proof and medical evidence of impregnation, and concluded that the victim was 15 years old at the time, making her a minor and invalidating any claim of consent. Finding no merit in the applicant’s claim of better prospects of success on appeal, the Court refused to grant bail or suspend the sentence. The application was therefore rejected, though the Court noted the appeal could be taken up for hearing.

Issues considered

  • Whether the accused is entitled to suspension of sentence and bail pending appeal.
  • Whether consent can be a defence when the alleged victim is a minor under the POCSO Act.
  • Whether the age of the victim was correctly determined for the purpose of conviction.

Legislation cited

Subjects

  • kidnapping
  • rape
  • POCSO
  • minor victim
  • consent
  • bail
  • suspension of sentence
  • appeal

Judgment

2026:BHC-AUG:41521


                                                                       CriAppln-2896-2026
                                                      -1-

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD
                                 CRIMINAL APPLICATION NO. 2896 OF 2026
                                                  IN
                                    CRIMINAL APPEAL NO. 66 OF 2026

                        Arun s/o Bhagwan Gavli,
                        Age: 30 years, Occu.: Labour,
                        At present in jail,
                        R/o. Village Gummi,
                        Tq. and Dist. Buldhana.                      … Applicant
                                                                      [Accused]
                        Versus

                 1.     The State of Maharashtra
                        Through Police Inspector,
                        Pachora Police Station,
                        Tq. Pachora, Dist. Jalgaon.

                 2.     X. Y. Z.                                     … Respondent
                                                  …..
                 Mr. Sunil. G. Magre, Advocate for the Applicant.
                 Mr. S. M. Ganachari, APP for the Respondent No.1-State.
                 Ms. Kalpana Sonpawale Kulkarni, Advocate for Respondent No.2
                 (Appointed)
                                                  .....

                                           CORAM :          ABHAY S. WAGHWASE, J.
                                      RESERVED ON : 08.09.2026
                                   PRONOUNCED ON : 09.09.2026

                 ORDER :


                 1.     Instant application is for suspension of sentence awarded in

                 Special Case No. 12 of 2017 dated 17.01.2025 by the learned Special

                 Judge (POCSO), Jalgaon for offence under Section 363, 376(2)(i)(n)

                 of the Indian Penal Code [IPC] and equally, prayer is raised for grant

                 of bail also.
                                                    CriAppln-2896-2026
                                    -2-

2.    It is submitted that the learned Trial Court has accepted the

case of the prosecution by relying only upon the testimony of PW1

and PW5, i.e. the informant and the victim. However, in the cross-

examination of PW1, there are vital admissions. That, victim spent

sufficient time in the company of applicant and at no point of time

any alarm was raised. The medical evidence does not support the case

of the prosecution. There was no use of force and whatever relations

were developed were consensual. It is further submitted that the

applicant has challenged the judgment and order of conviction by

filing an appeal, however, the appeal is of the year 2026 and the same

may not be heard immediately. As the applicant is behind bars for

more than three years and eleven months, the relief of suspension of

sentence and grant of bail is urged for.


3.    Learned APP for respondent No.1/State as well as learned

Counsel for respondent No.2/victim opposed the application on the

ground that victim is proved to be minor. She was 14 years and 8

months old only. Therefore, the defence of consensual relations or

acts has been rightly discarded by learned Trial Court. There is

medical evidence and therefore, relief of suspension of sentence as

well as grant of bail is opposed.
                                                     CriAppln-2896-2026
                                  -3-

4.    Heard. Perused the papers. It seems that charges were framed

before the learned Trial Court against the applicant for the offences

punishable under Sections 363 and 376(2)(i)(n) of the IPC and under

Sections 4, 5(j)(ii)(l), 6, 7 and 8 of the Protection of Children from

Sexual Offences Act (POCSO Act). Ultimately, conviction seems to

have been recorded for the offences punishable under Sections 363

and 376(2)(i)(n) of the IPC and Section 6 of the POCSO Act. There

does not seem to be any serious challenge on the point of the age of

the victim. The learned Trial Court has taken into account the

testimony of the victim, her grandfather and the evidence of PW6 on

the point of age and, in paragraph No.17 of the judgment, has

reached a finding that she was 15 years old and less than 16 years of

age at the time of the incident. The victim has deposed as PW5.

Though she spent time in the company of the applicant, going by the

age proof produced by the prosecution, her passive consent, if any,

also cannot be taken into account at this stage. She was also

impregnated and, therefore, the act of sexual intercourse is also

demonstrated by the prosecution before the learned Trial Court.

Therefore, taking such evidence into account, and there being no

good ground to hold that there are better prospects of success in the

appeal, in view of the nature of the charges proved, this Court is not

inclined to grant the relief as prayed for. However, if the applicant so
                                                     CriAppln-2896-2026
                                 -4-

desires, his appeal itself can be taken up for hearing.      Hence, I

proceed to pass the following order:


                               ORDER


           .     Criminal Application is rejected.



                                          [ABHAY S. WAGHWASE, J.]



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