AKASH SUBHASH RATHODversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:46574


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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD
                                CRIMINAL APPLICATION NO. 77 OF 2026
                                                IN
                                  CRIMINAL APPEAL NO. 138 OF 2026

                      Akash s/o Subhash Rathod
                      Age: 27 years, Occu.: Private Service,
                      R/o. Shivneri Society, H.No.05,
                      Bajajnagar, Aurangabad,
                      Permanent R/o. Sevanagar Taibhi,
                      Taluka and District Yavatmal              … Applicant
                                                                 [Accused]
                               Versus

                 1.   The State of Maharashtra
                      Through Police Station,
                      M.I.D.C. Waluj,
                      Taluka and District Aurangabad.

                 2.   X.Y.Z.                                    … Respondent

                                                  …..
                 Mr. Sopan B. Bobade, Advocate for the Applicant.
                 Mr. N. D. Raje, APP for the Respondent No.1-State.
                 Ms. Ashwini A. Lomte, Advocate for Respondent No.2 (Appointed
                 Through Legal Aid).
                                                  .....

                                         CORAM :       ABHAY S. WAGHWASE, J.
                                   RESERVED ON : 05.10.2026
                                PRONOUNCED ON : 06.10.2026

                 ORDER :


                 1.   Instant application is for suspension of sentence awarded in

                 Special Case (POCSO) No.397 of 2021 dated 18.03.2024 for offence

                 under Section 377 of the Indian Penal Code [IPC] and under Section
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4(2), 8 of the Protection of Children from Sexual Offences Act

[POCSO Act] and equally, prayer is raised for grant of bail also.


2.    Learned counsel for the applicant would submit that there is

false implication. Except the child witness, who is tutored, there is no

other evidence. Moreover, the prosecution had not conducted a Test

Identification Parade for establishing the identity of the accused. The

scientific evidence also does not support the prosecution. Such crucial

aspects have not been considered and properly appreciated by the

learned Trial Court. Hence, the present appeal has been preferred.

The applicant has been in jail since 05.11.2021, and as the appeal is

of the year 2026, it may not be heard immediately. Therefore, he

prays for suspension of sentence and grant of bail.


3.    Learned APP for respondent No.1 as well as learned Counsel for

respondent No.2/victim have strongly opposed the application and

relief by pointing out that serious offence is proved to be committed.

That, testimony of victim finds support from medical evidence. That,

DNA report also confirms involvement of accused.


4.    Perused the papers. Applicant seems to be tried vide Special

Case (POSCO) No.397 of 2021 for offence under Section 377 of IPC

and under Sections 4(2) and 8 of POCSO Act. Case of prosecution in
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Trial Court is based on eight witnesses. Crucial evidence is of PW1

victim boy, PW2 mother of the victim and PW5 medical officer.


5.    PW1 Victim, in his evidence at Exhibit-19, gave his age as seven

years. In his examination-in-chief, he has stated that accused resides

in his neighbourhood. He had called victim and asked him to remove

his half pant and after making him sleep, accused inserted his penis in

his anus. Accused offered him coin of Rs.10/-. He further deposed

that he went home and reported his mother. PW2 the mother of the

victim also deposed that, in the evening, when she returned home,

she noticed that her son was wearing Grey pant instead of black pant,

which he had worn earlier. She questioned him about the same, and

he allegedly told her that the black pant had become wet. When she

insisted to show her the pant to verify whether he had urinated on it,

she noticed white spots and a smell emanating from the pant. She

therefore became doubtful and made further inquiries and he

narrated that uncle residing in the neighbourhood called him, made

him sleep, removed his pant and committed the above act and that

thereafter accused has wiped his own male organ with the pant of the

victim. She reported the incident to her sister-in-law and then police

was approached.
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6.    PW5 Medical officer opined that possibility of sexual assault

cannot be ruled out. PW8 chemical analyzer claims that DNA profile

obtained from semen stains cutting from full pant of victim and

controlled DNA profile obtained from the blood samples of accused

are identical and of the same male origin. Thus, prima facie, there

seems to be positive scientific evidence.


7.    Considering the above material, this Court is not inclined to

suspend the sentence and grant bail, however, if the applicant so

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

proceed to pass the following order:


                                ORDER


           .      Criminal Application is rejected.



                                            [ABHAY S. WAGHWASE, J.]



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