Bombay High Court
Asadkhan S/O. Asifkhan Pathan vs The State Of Maharashtra on 6 August, 2019
Author: P.R. Bora
Bench: P.R. Bora
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
906 CRIMINAL APPLICATION NO.1119 O 2019
IN
CRIMINAL APPEAL NO.284 OF 2019
ASADKHAN S/O. ASIFKHAN PATHAN .. Applicant
VERSUS
THE STATE OF MAHARASHTRA .. Respondent
...
Advocate for Applicant : Shri Gajanan G. Kadam
APP for Respondent State : Shri S.M. Ganachari
...
CORAM : P.R. BORA, J.
Dated: August 06, 2019
PER COURT :-
1. The present application is filed seeking suspension of
execution of sentence imposed upon the applicant by the Sessions
Court in Sessions Case No.39 of 2013 decided on 02.03.2019. Vide
the aforesaid Judgment, the applicant has been convicted for the
offence punishable under Section 376 of the Indian Penal Code
(hereinafter referred to as the 'IPC') and is sentenced to suffer
Rigorous Imprisonment for 10 years and to pay fine of Rs.5000/-.
The applicant has also been convicted for an offence punishable
under Section 366A of IPC and has been sentenced to suffer Rigorous
Imprisonment for 5 years and to pay fine of Rs.2000/-. The applicant
has also been convicted for an offence punishable under Section 363
of IPC and has been sentenced to suffer Rigorous Imprisonment for
three years and to pay fine of Rs.1000/- for the said offence.
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2. The learned counsel appearing for the applicant, taking
me through the notes of evidence which are placed on record as well
as the observations made by the learned Sessions Judge in the
impugned judgment, submitted that ample evidence has come on
record showing that, the prosecutrix and the accused were well
acquainted with each other. It is also pointed out that, it has come on
record in the evidence of the prosecutrix that, at the relevant time,
she accompanied the accused first in an auto and then traveled with
him by the another modes of travel. The learned counsel further
submitted that, though the prosecutrix was with the applicant as
stated by her for about a week, she did not make any grievance or
lodge any report or make any hue or cry that she was being
kidnapped by the applicant or that she was being forcibly taken by
the accused with him. The learned counsel further submitted that,
though the allegation of rape is made against the accused, the
prosecution has not examined the Medical Officer. The learned
counsel further submitted that, the age of the prosecutrix has also
been seriously disputed by the applicant - accused. The learned
counsel submitted that, during course of the trial, the applicant was
on bail and there is no complaint against the applicant - accused that
any attempt was made by him while on bail during the course of trial
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to tamper with the prosecution evidence or any other act in defiance
of the order. The learned counsel submitted that, on the date of
alleged commission of offence, the age of the applicant was 27/28
years. The learned counsel submitted that, there are no criminal
antecedents to the applicant. The learned Counsel further submitted
that, considering the aforesaid circumstances, the execution of the
sentence imposed upon the applicant be suspended and consequently
he be released on bail during pendency of the appeal filed by him.
3. The learned APP has opposed for granting the bail. The
learned APP submitted that, having regard to the quantum of
punishment and considering the nature of the offence proved to have
been committed by the applicant, the application deserves to be
rejected. The learned APP submitted that, though it has been sought
to contend that the prosecutrix was a consenting party, having regard
to the proved fact that the prosecutrix was minor on the date of the
commission of the offence, the consent has to be held immaterial.
The learned APP submitted that, ample evidence has been adduced
by the prosecution considering which the Sessions Court has held the
applicant guilty and has awarded the punishment of rigorous
imprisonment for 10 years. The learned APP, in the circumstances,
prayed for rejecting the application.
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4. I have duly considered the submissions advanced by the
learned counsel appearing for the respective parties. I have perused
the judgment in the sessions case as well as the evidence adduced in
the sessions trial. It is apparently revealed that, after the prosecutrix
is alleged to be taken away by the present applicant with him and
was in his company for 6 days, there is no such convincing evidence
to show that there was any oppose from the side of the prosecutrix to
the applicant. On the contrary, specific admissions are given by the
prosecutrix that, she did not make any complaint or has not given
any alarms suggesting that she was forcibly taken by the applicant. At
the relevant time, the prosecutrix was studying in 10th std., and was
aged about 15 years. It has also come on record that, there were
exchange of love letters between the applicant and the prosecutrix.
The applicant has also disputed the evidence as about the age of the
prosecutrix which has come on record.
5. The circumstances as above to what extent may be useful
for the accused can be considered only at the time of final hearing of
the appeal. The said circumstances, however, are certainly material
for considering the request of the applicant to release him on bail
during pendency of the present appeal. It has come on record that,
during the course of the appeal, the applicant was on bail. It has also
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come on record that, the applicant has deposited the amount of fine
imposed by the Trial Court. I am, therefore, inclined to allow the
present application. Hence, the following order.
ORDER
(i) The execution of the sentences imposed upon the applicant by Additional Sessions Judge, Nanded in Sessions Case No.39 of 2013 for the offences punishable under Sections 376, 366A & 363 of IPC, shall stand suspended till decision of the Criminal Appeal filed by the present applicant.
(ii) The applicant be released on executing P.R. Bond in the amount of Rs.30,000/- with one or two sureties in the like amount.
(iii) The applicant shall mark his presence before the Sessions Court once in every three months i.e. on the first Monday of every quarter, till decision of the appeal.
(iv) Bail before Sessions Court.
(v) The application, thus, stands allowed in the aforesaid
terms.
( P.R. BORA, J. )
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