BABALU @ MOHAMMED MUSTAPHA IMTIYAZ SHAIKHversusTHE STATE OF MAHARASHTRA AND ANR

2026:BHC-AS:38133

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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION
                              INTERIM APPLICATION NO.730 OF 2026
                                              IN
                                CRIMINAL APPEAL NO.687 OF 2026

            Babalu @ Mohammed Mustapha                           ...         Applicant
                 versus
            The State of Maharashtra and Anr.                    …           Respondents

            Mr. M.I.Zarodarwala, for Applicant.
            Mr. D.J.Haldankar, APP for State.
            Mr. Ajay Talreja, for Respondent No.2.

                                CORAM:      N.J.JAMADAR, J.

                                DATE :      17 SEPTEMBER 2026

            P.C.

            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 14 May 2025, the applicant has been

            found guilty of the offences punishable under Sections 376(2)(i) and 506 of

            the Indian Penal Code, 1860 and Section 4 of the Protection of Children from

            Sexual Offences Act, 2012. The applicant – accused has been sentenced to

            suffer RI for 10 years and pay a fine of Rs.10,000/- with default stipulation.

            4.      The indictment against the applicant was that on 6 July 2013, at about

            5.30 p.m. while the victim, who was then studying in 6 th standard, was on her

            way to home from school, the applicant threatened to kill the brothers of the


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victim if she did not accompany him to his house, which was on the 4 th floor of

the same building. The victim was, thus, forced to go to the house of the

applicant. Thereupon, the applicant undressed himself and forced the victim

to remove her clothes and forcibly committed sexual intercourse with the

victim. After the victim returned to her home, she narrated the incident to her

parents. The applicant came to be apprehended and sent for trial.

5.    Mr. Zarodarwala, learned Counsel for the applicant, submitted that,

there were material discrepancies in the evidence of the victim. Omissions

and contradictions in the testimony of the victim rendered her evidence

unworthy of credence.       An endeavour was made to demonstrate the

discrepancies in the testimony of the victim and the version narrated before

the Medical Officer. Mr. Zarodarwala further submitted that, the applicant has

already undergone a sentence of more than two and half years and as the

hearing of the appeal may take time, the applicant be enlarged on bail.

6.    Learned APP and the learned Counsel appointed to espouse the cause

of the Respondent No.2 – victim, strongly opposed the prayer for suspension

of sentence.

7.    At the outset, it is necessary to note that at the stage of consideration of

an Application for suspension of sentence, the Appellate Court is not expected

to meticulously evaluate the material on record. Only the prima facie merits of

the Appeal and the attendant factors which bear upon the exercise of


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discretion are required to be examined. On the basis of the material on

record, the Court has to analyze whether the prosecution case which found

favour with the Trial Court is such that the convict stands a fair chance of

success in Appeal. If the Court can prima facie draw an inference that

ultimately the convict may be entitled to an acquittal, the Court may exercise

the discretion to suspend the sentence and enlarge the convict on bail.

However, the Appellate Court is required to refrain from re-appreciating of the

evidence and trying to pick up lacunae, loopholes or shortcomings in the

prosecution case.

8.    A case where a convict is sentenced to suffer a fixed term of

imprisonment also stands on a slightly different footing. Ordinarily, where the

convict is sentenced to suffer fixed term sentence and it is unlikely that the

Appeal can be heard expeditiously and the convict has undergone a

substantial part of sentence, the Court may exercise the discretion to grant

bail during the pendency of the Appeal unless there are exceptional

circumstances.

9.    On the aforesaid touchstone, if the evidence and material on record is

examined, I find it difficult to accede to the submissions sought to be

canvassed on behalf of the applicant. Suffice to note that, the victim was

steadfast in narrating the manner in which the applicant subjected her to

penetrative sexual assault. Minor discrepancies as to the circumstances in


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                      which the victim was made to reach the house of the applicant are of no

                      significance at this juncture.

                      10.      Prima facie, the testimony of the victim finds support in the evidence of

                      the Medical Officer (PW4). The Medical Officer has categorically deposed

                      that the hymen was ruptured and there was evidence of penetrative vaginal

                      force. Moreover, the report about the incident was lodged under few hours of

                      the alleged occurrence.          The testimony of victim’s mother, prima facie,

                      corroborates the testimony of the victim.

                      11.      In substance, the applicant has not succeeded in demonstrating that he

                      has a strong chance of success in the appeal. Thus, though the applicant has

                      been sentenced to suffer a fixed term of imprisonment, yet, the gravity of the

                      offence, nature of the evidence, situation in life of the parties and the

                      circumstances of the case dissuade the Court from exercising discretion in

                      favour of the Applicant.

                      12.      The Interim Application, thus, stands rejected.

                      13.      However, the hearing of the Appeal stands expedited.




                                                                           ( N.J.JAMADAR, J. )




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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 18/09/2026 18:38:17