MOHAMMED KAUSAR ABDUL KALAM SHAIKHversusSTATE OF MAHARASHTRA AND ANR

                                                    10-IA3950-2025INAPEAL1306-2025.DOC

                                                                               Santosh

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION


                              INTERIM APPLICATION NO. 3950 OF 2025
                                               IN
                                CRIMINAL APPEAL NO. 1306 OF 2025

                   Mohammed Kausar Abdul Kalam Shaikh                   ...Applicant-
                                                                            Appellant
                                    Versus
                   State Of Maharashtra And Anr                      …Respondents


SANTOSH             Mr. Harshada Morey, for the Applicant - Appellant.
SUBHASH             Mr. D. J. Haldankar, APP for the State – Respondent No.1.
KULKARNI
Digitally signed by
                    Ms. Savvy Kolhekar, Appointed Advocate for Respondent No.2.
SANTOSH SUBHASH
KULKARNI            PSI Mr. R. G. Gujar, Malad Police Station, present.
Date: 2026.08.28
17:30:58 +0530


                                                    CORAM: N. J. JAMADAR, J.
                                                    DATED: 27th AUGUST, 2026

                   Order:-

                   1.   Heard the learned Counsel for the parties.

                   2.   By this application, the applicant seeks the suspension of

                   sentence imposed upon him by the learned Special Judge in

                   Special POCSO Case No. 531 of 2021 and release on bail, till the

                   final disposal of the appeal.

                   3.   By a judgment and order dated 20 th May, 2025 in Special

                   POCSO Case No. 531 of 2021, the applicant has been convicted

                   for the offences punishable under Sections 4 and 6 of the

                   Protection of Children from Sexual Offences Act, 2012 (“the

                   POCSO Act, 2012”) and Section 376(2)(n), read with Section
                                                   1/5
                                 10-IA3950-2025INAPEAL1306-2025.DOC

376(3), 354A(2) and 506 of Indian Penal Code, 1860 (“the Penal

Code”). For the major offence punishable under Section 6 of the

POCSO Act, 2012, the applicant has been sentenced to suffer

rigorous imprisonment for 20 years and pay a fine of

Rs. 15,000/-, with default stipulation.

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

the respondent No. 2 victim girl's grandmother was vending

garments at a footpath besides the stall of the applicant. The

victim was then under 16 years of age. The victim used to help

her grandmother in the said business. In the month of July

2021, when the victim had been to the godown of the applicant

situated at Dixit Bungalow to collect the raincoats, the applicant

had forcible sexual intercourse with the victim. The applicant

threatened the victim with dire consequences if she disclosed

the incident to anybody. The applicant again subjected the

victim to aggravated penetrative sexual assault on 15 th August,

2021 at the same place. As the applicant continued to demand

sexual favours, the victim called the police by dialing 100.

Thereupon, the law was set in motion.

5.   After appraisal of the testimony of the victim, her

grandmother and the medical officer, the learned Special Judge




                               2/5
                                  10-IA3950-2025INAPEAL1306-2025.DOC

was persuaded to return the finding of guilt and sentence the

applicant, as indicated above.

6.   Ms. Morey, the learned Counsel for the applicant,

submitted that there was a material contradiction in the

testimony of the victim, who had deposed before the Court

about the third incident of alleged sexual assault in the month

of September 2021; that was not at all narrated before the

police. The learned Special Judge committed an error in not

appreciating the import of the said contradiction, despite noting

the same. Secondly, the genesis of the prosecution was in the

dispute which the grandmother of the victim had with the

applicant over running the stalls on the footpath. Thirdly, since

the applicant has undergone a sentence of almost 5 years, and

the sentence is of a fixed term, the applicant deserves to be

enlarged on bail during the pendency of the appeal.

7.   Mr. Haldankar, the learned APP and Ms. Kolhekar, the

learned Counsel appointed to espouse the cause of the victim,

strongly opposed the prayer of suspension of sentence and

release on bail. It was submitted that, there is overwhelming

evidence to sustain the guilt of the applicant, and having regard

to the gravity of the offences, the applicant does not deserve to

be enlarged on bail.

                                 3/5
                                 10-IA3950-2025INAPEAL1306-2025.DOC

8.    From the perusal of the material on record, especially the

deposition of the victim, it becomes prima facie evident that the

victim has given a vivid account of the manner in which the

applicant had sexually exploited her. Prima facie, the testimony

of the victim went virtually unimpeached during the course of

the cross-examination. Neither the omission, which Ms. Morey

pressed into service, was elicited in the cross-examination in

the manner known to law, nor the alleged reason of false

prosecution was put to the victim, even by way of a suggestion.

It is trite, the testimony of a victim of a sexual assault does not

warrant corroboration as a matter of law. Yet, prima facie, the

medical evidence lends corroboration to the version of the

victim. The testimony of the grandmother and the other

witnesses also lends support.

9.    In the backdrop of the aforesaid evidence, at this juncture,

this Court is not persuaded to exercise discretion in favor of the

applicant.

10.   To put it in other words, the gravity of the offences, the

quality of evidence adduced by the prosecution, and the prima

facie failure of the applicant to make out a case that he has a

fair chance of success in the appeal, dissuade the Court from

suspending the sentence and enlarging the applicant on bail.

                                4/5
                                  10-IA3950-2025INAPEAL1306-2025.DOC

11.   The decision in the case of Aasif @ Pasha vs. The State of

U.P. and Ors.1 is of no assistance to the applicant, in the facts of

the case at hand.

12.   The interim application thus stands rejected.

13.   The hearing of the appeal stands expedited.



                                           [N. J. JAMADAR, J.]




1     Criminal Appeal/3409/2025 dated 6/8/2025.
                                5/5