GANESH ASARAM KALEversusTHE STATE OF MAHARASHTRA AND ANR

2026:BHC-AS:38135

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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION
                              INTERIM APPLICATION NO.1817 OF 2026
                                              IN
                                CRIMINAL APPEAL NO.576 OF 2026

            Ganesh Asaram Kale                                   ...         Applicant
                 versus
            The State of Maharashtra and Anr.                    …           Respondents

            Mr. Aniket Vagal, for Applicant.
            Smt. R.S.Tendulkar, APP for State.
            Mr. Ajay Talreja, Appointed Advocate for Respondent No.2.

                                CORAM:      N.J.JAMADAR, J.

                                DATE :      17 SEPTEMBER 2026

            ORDER :

            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 21 March 2025, the learned Special

            Judge has convicted the applicant for the offences punishable under Section

            376(3) of the Indian Penal Code and Section 4 of the Protection of Children

            from Sexual Offences Act, 2012 and sentenced the applicant to suffer RI for a

            term of 20 years and pay a fine of Rs.20,000/-, with default stipulation.

            4.      The gravamen of indictment against the applicant is that, on the night of

            occurrence at about 11.00 p.m., while the victim, then 14 years of age, was on

            her way to a public toilet, the applicant-accused accosted her, put his hand on


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her mouth and forcibly took her behind Madhuban building and forced himself

upon her. The accused threatened to repeat the act if the victim disclosed the

same to any person. Thereafter, the accused took her to an autorikshaw and

while she was crying in the autorikshaw, a boy, who was her relative, noticed

her in that state.   As the said boy and her mother approached towards

rikshaw, the applicant fled away.

5.    Mr. Vagal, learned Counsel for the Applicant, submitted that the medical

evidence renders the testimony of the victim completely unreliable. Laying

emphasis on the testimony of the Medical Officer (PW5), Mr. Vagal submitted

that the victim has narrated an altogether different version before the Medical

Officer. It was categorically deposed by the Medical Officer (PW5) that no

history of peno vaginal / peno anal or other form of intercourse was given by

the victim.   The Medical Officer (PW5) went on to admit in her cross-

examination that, she did not find any evidence of sexual assault.

6.    Mr. Vagal would urge, had the applicant subjected the victim to

aggravated penetrative sexual assault, as deposed to by the victim, there

would have been evidence in the form of some injuries on the person of the

victim. Thus, the applicant who has been in custody since 24 September

2019, deserves to be enlarged on bail.

7.    Smt. Tendulkar, learned APP, countered the submissions on behalf of

the applicant. It was submitted that the evidence of the victim cannot be


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discarded on account of minor discrepancies in the narration before the

Medical Officer. Smt. Tendulkar invited attention of the Court to the testimony

of another Medical Officer who had examined the applicant and before whom

the applicant narrated the history, which broadly corresponds with the

prosecution case.

8.    At this juncture, while considering the prayer for suspension of

sentence, the Appellate Court is not expected to reappreciate the evidence.

The Appellate Court is expected to examine whether prima facie the applicant

has a fair chance of success in the appeal, and, whether eventually, the Court

may render a finding of acquittal. It is impermissible to meticulously evaluate

the evidence with a view to find out the lacunae, loopholes or shortcomings in

the prosecution case.

9.    Keeping the aforesaid broad principle in mind, if the material on record

is appraised, the victim was forthright in asserting that the applicant had

forcibly taken her behind Madhuban building and had forcible sexual

intercourse.   The Medical Officer (PW5), has, however, deposed that the

victim had narrated that the accused took her inside the autorikshaw, pressed

her mouth with his hand, kissed her and removed her pant / legging and

touched his penis against her genitalia.

10.   At this juncture, the aforesaid medical evidence cannot be said to be in

complete dissonance with the version of the victim. The testimony of the


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                      victim before the Court, prima facie, commands more weight. There appears

                      corroboration to the testimony of the victim in the testimony of other witnesses

                      and the circumstantial evidence, as the clothes the victim wore at the time of

                      occurrence, were found to be stained with human blood.            Thus, it cannot be

                      said that the applicant has succeeded in demonstrating that the applicant has

                      a strong chance of success in the appeal.

                      11.      Resultantly, the Interim Application stands dismissed.

                      12.      However, having regard to the period of sentence already undergone

                      by the applicant, hearing of the appeal stands expedited.

                      13.      Post the Appeal for hearing and final disposal on 29 October 2026.




                                                                          ( N.J.JAMADAR, J. )




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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 18/09/2026 18:38:51