Bombay High Court
DINESH PARSHU RATHODversusTHE STATE OF MAHARASHTRA AND ANR
- Disposal
- Dismissed
Holding
The Court dismissed the interim applications and refused to suspend the sentence of the convicted appellants.
Summary
Convicts Dinesh Parshu Rathod and Chetan Ram Rathod, along with Rohit Sham Rathod, were convicted by a Special Judge in Solapur for gang penetrative sexual assault of a minor under IPC sections 376(2)(n), 376(3), 506 and POCSO sections 3, 4, 5(g), 6, as well as offences under the SC/ST Act. While in prison, they filed interim applications (IA 186/2026 and IA 89/2026) seeking suspension of their life sentences pending appeal, alleging flaws in the victim's testimony, improper conduct of the Test Identification Parade, and lack of direct evidence. The prosecution countered that the victim’s evidence was credible, the presumption under POCSO sections 29 and 30 applied, and the TIP was unnecessary as the accused were already known to the witness. The Court held that on appeal the court does not re‑appreciate evidence and, given the gravity of the offences, there was no basis to grant suspension of sentence. Consequently, both interim applications were dismissed.
Issues considered
- Whether the conviction of the appellants can be set aside or the sentence suspended pending appeal
- Whether the evidence, including the victim’s testimony and the Test Identification Parade, is sufficient to sustain the conviction
Legislation cited
- Code of Criminal Procedure — s. 235(2), 389, 428
- Indian Penal Code, 1860 — s. 376(2)(n), 376(3), 506
- Protection of Children from Sexual Offences Act, 2012 — s. 29, 3, 30, 4, 42, 5(g), 6
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — s. 3(1)(w)(i), 3(2)(v)(a)
Subjects
- suspension of sentence
- interim application
- POCSO Act
- gang rape
- conviction
- appellate jurisdiction
- Section 389 CrPC
- identification parade
- presumption under POCSO
Judgment
CRIA-186-2026 & CRIA-89-2026.doc
Digitally signed
by HARISH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
HARISH VITHAL
VITHAL CHAUDHARI
CHAUDHARI Date:
CIRCUIT BENCH AT KOLHAPUR
2026.09.23
10:56:13 +0530 CRIMINAL APPELLATE JURISDICTION
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 ofences 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 sufer Rigorous Imprisonment for Life
which shall mean imprisonment for the remainder of their
natural life for the ofence U/s.3 PUS 4 of Protection of
Children from Sexual Ofences Act, 2012 and liable to pay
ine of Rs.10,000/- each, in default of payment of ine, to
sufer 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 sufer Rigorous Imprisonment for Life
which shall mean imprisonment for the remainder of their
natural life for the ofence U/s.5 (g) PUS 6 of Protection of
Children from Sexual Ofences Act, 2012 and liable to pay
ine of Rs.10,000/-each, in default of payment of ine, to
sufer 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 ofence PUS 506 of IPC and sentenced to
sufer Rigorous Imprisonment for Two Years and liable to pay
ine of Rs.1,000/- each, in default of payment of ine, to
sufer 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 ofences 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 ofence 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-of for the said period be given to them as per
Section 428 of Cr.P.C.
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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 diferent persons at diferent 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 ofences punishable under Section
376(2)(n), 376(3) and 506 of Indian Penal Code, 1860 (for short 'IPC'), for
the ofences punishable under Section 4 and 6 of the Protection of
Children from Sexual Ofences 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 iled and charge
for the ofences 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 Identiication Parade (TIP) was
conducted in lagrant violation of the rules/guidelines. The identity of
the Applicant as the person who committed rape is not established. The
place of ofence 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 ofence 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 oicer 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 oice 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 identiied
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 ofence 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 suicient 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 identiied the Applicants. The
said identiication has come in paragraph No. 61 of her evidence. Her
evidence shows that, the incident was of broad day light. The
identiication of the Applicants before the learned trial Court is
corroborated by the identiication in the TIP. The learned trial Court
made the following observations in respect of the evidence of TIP:
“Test Identiication Parade :
118. Evidence of PW11 Suvarna, Nayab Tahsildar and
PW-12 Pundlik Kashid is about the test identiication 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 suicient 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 identiication parade of the
accused No.1 to 3 was taken, during identiication parade and
dock identiication in Court, the victim has identiied accused
No.1 to 3. In such circumstances, Test Identiication 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 identiication
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parade. It's worth noting that Test Identiication 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 scule 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 ofences punishable under Section 302, 307 read with
34 of IPC and for the ofence 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 ofence punishable
under Section 323 of IPC and was acquitted for the ofence 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 ofence punishable under Section 302 and
sentenced him to sufer imprisonment for life. The Petition for Special
Leave to Appeal was iled and the Special Leave was granted. On inding
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 diferent. The conviction is for the ofence of rape and
for the ofence 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 certiicate.
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 ofence PUS 506 of
IPC. Thus, the accused No. 1 to 3 are held guilty for aforesaid ofence.
Here, I take pause to hear accused No. 1 to 3 on the point of sentence.”
12. Considering the nature of the proved ofence, the punishment
imposed and in the light of the aforesaid discussion, in our considered
view, this is not a it 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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