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The Bombay High Court recently comprising of single bench of Justice Revati Mohite-Dere granted bail to the an couple in their 80s convicted under the Protection of Children against Sexual Offences (POCSO) Act for alleged sexual assault of a 4-year-old child in their building.

The bench observed that there were certain inconsistencies and omissions that had come on record in the evidence of the prosecution witnesses. Hence the Court suspended the sentence of 10 years imprisonment handed down by the Special POCSO Court.

“The Applicants vide Judgment and Order dated 11th March 2021 passed by learned Special Judge under P.O.C.S.O. Act, 2012, Greater Bombay, in POCSO Special Case No.900 of 2013, have been convicted and sentenced as under:-

- for the offences punishable under Section 6 of the Protection of Children from Sexual Offences Act, to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,000/- each, in default of payment of fine, to undergo simple imprisonment for 1 month;

 - for the offence punishable under Section 354 r/w Section 34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act. However, no separate sentence has been imposed.

- the appellants were however acquitted of the offences punishable under Section 354 r/w Section 34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act;

 - No separate sentence was imposed for the offence punishable under Section 376 of the Indian Penal Code in view of Section 42 of the Protection of Children from Sexual Offences Act.” – stated the application.

The Learned Counsel for the applicants submitted that, “the allegations against the applicants, aged 87 and 81 years respectively (husband and wife) are false and baseless. He submits that the evidence on record will show the falsity of the case. He submits that there are several inconsistencies in the evidence of witnesses, in particular, PW 1 and PW 2 so also material omissions. He submits that PW 1 – mother of the prosecutrix had initially stated that applicant No.1 had inserted his finger in the private part of the prosecutrix, however, subsequently has stated that applicant No.2 also did the same act.”

He further submitted that, “the prosecutrix has only stated that the applicant No.1 touched her inappropriately on her private part and made no allegation as against applicant No.2 of inappropriate touching. Learned Counsel relied on paras 14, 15 and 16 of the cross-examination of PW 7 – Dr. Prajakta Ahire with respect to the medical evidence that has come on record. According to the learned counsel for the applicants the reason for falsely implicating the applicants was for taking over the house of the applicants, in which they are staying. Learned Counsel further submitted that considering the age of the applicants i.e. 87 and 81 years and the fact, that the applicants were on bail and also having regard to the evidence that has come on record, the applicants sentence be suspended and they be enlarged on bail.”

However, the Additional Public Prosecutor opposed the present plea.

Taking into account the factual matrix of present case the bench observed that,

“The applicants, aged 87 and 81 years respectively were on bail pending trial and have not abused or misused the liberty granted to them. Prima facie, having considered the evidence on record, the applicants have made out a case for suspending their sentence and enlargement on bail.”

Therefore, the application was allowed and the applicants sentence was suspended and they were enlarged on bail, pending the hearing and final disposal of their Appeal, on the following terms and conditions:

“The Applicants be released on cash bail in the sum of Rs.25,000/- each, for a period of six weeks;

The Applicants shall within the said period of six weeks, furnish P.R. Bond in the sum of Rs.25,000/- each, with one or more sureties in the like amount.

The Application is allowed in the aforesaid terms and is accordingly disposed of.”

Case title: Ashwin Parikh v. State of Maharashtra