Bombay High Court
Dilip S/O. Sudam Karale vs The State Of Maharashtra on 3 May, 2019
(1) criapln3725.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3725 OF 2018
IN
CRIMINAL APPEAL NO.560 OF 2018
Dilip S/o. Sudam Karale, ...APPLICANT
Age-55 years, Occu-Labourer & Agriculturist
R/o.Tokewadi, Shivari, Adgaon,
Tq. Nagar, Dist. Ahmednagar
Mr.Maharashtra
VERSUS
The State of Maharashtra ...RESPONDENT
At the Instance of,
Nagar Taluka Police Station,
Tq. Nagar, Dist. Ahmednagar
Mr.Ostwal Abhaykumar D., Advocate for the applicant
Mr.V.S.Badakh, APP for the respondent/State
CORAM : S.M.GAVHANE,J.
RESERVED ON : 16.04.2019
PASSED ON : 03.05.2019
O R D E R :
. By this application applicant/accused who has been convicted for the offence punishable under Section 376 (2)(l) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for the period of 10 years and to pay a fine of Rs.60,000/-, in default of payment, ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (2) criapln3725.18 to suffer simple imprisonment for year as per the judgment and order dated 14.06.2018 in Special Case No.137/2017 passed by the Additional Sessions Judge, Ahmednagar has prayed to suspend the aforesaid substantive sentences pending hearing and final decision of his appeal bearing Criminal Appeal No.560/2018 challenging the conviction recorded against him and to release him on bail and it appears that the appellant has deposited fine amount on the same day.
2. Case of the prosecution is that the victim girl aged about 23 years is mentally retarded deaf and dumb lady. She was residing with her parents. Her parents are labours and they used to be out from the house in the day time for labour work. The victim girl used to be alone at the house. Her grand-mother used to be residing in the adjoining house which is her parental aunt. The applicant who is resident of the same village is an agriculturist. The house of the victim girl is on the way of the agricultural land of the applicant. It was alleged that in July, 2016 parental aunt of the victim girl visited the house of the victim girl and noticed some change in the appearance of the victim girl. She pointed out the said change in the appearance of the victim girl to the informant mother of the victim girl. The victim girl was ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (3) criapln3725.18 taken to Medical Officer on 03.08.2016. The Medical Officer after examining the victim girl opined that she was pregnant. The informant suspected that somebody committed forcible intercourse with the victim girl. Therefore, she lodged complaint in the police station on 12.08.2016. During the investigation the informant raised suspicion on the appellant/accused, on the father of the victim girl and on the cousin brother of the victim girl. The victim girl delivered a female child. Blood samples of the said child, all the suspects including the applicant and the victim girl were taken and in the DNA test it was revealed that the applicant is Biological father of the child of the victim girl.
3. Mr.Ostwal, learned counsel for the applicant submitted that the applicant was arrested on 14.01.2017 and he is in jail since the date of his arrest. Panch witnesses have not supported the prosecution case. Nothing is recovered from the spot of incident. The victim girl is not completely mentally retarded as per the Medical evidence on record and therefore the victim girl was required to be examined by the prosecution. Consent of the applicant was not obtained while taking sample of blood. The prosecution has not examined the person/expert who conducted DNA test and still DNA report ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (4) criapln3725.18 is considered by the trial Court. As such, no opportunity has been given to the appellant to dispute the DNA report. Samples were sealed by the Nurse and not by the Doctor. Therefore, according to the learned counsel there was no proper sealing of the samples collected for DNA test. It is submitted that the applicant was not on bail during trial. His bail application was rejected by the trial Court and bail application filed in this Court was withdrawn as the trial was expedited. It is submitted that in the above circumstances the evidence of PWs- 5,6,8,9 and DNA report (Exh.14) relied upon by the trial Court is not sufficient to sustain the conviction recorded against the applicant and therefore sentence recorded against the applicant may be suspended and he may be released on bail, as final hearing of the appeal would take time, by allowing application.
4. Mr.Ostwal, learned counsel for the applicant, to support his submissions that the sentence recorded against the applicant is of fixed term there are no exceptional circumstance to reject the request of suspension of sentence and to release the applicant on bail when it is not possible to take up the appeal of the applicant for early hearing and that generally court should be liberal to suspend the sentence during pendency ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (5) criapln3725.18 of the appeal challenging the sentence has mainly relied upon the following decisions :
A] In the case of Kiran Kumar Vs State of MP (2001) 9 Supreme Court Cases 211 the appellant was convicted under Sections 460,376,325 and 506 of the IPC. The maximum sentence imposed on him was imprisonment for a period of 7 years on the second count. His application for suspension of sentence was rejected by the High Court. It was held that no exceptional reason had been shown in the impugned order for not suspending the sentence. The sentence recorded against the appellant was suspended during pendency of the appeal and he was directed to be released on bail.
B] In the Case of Angana and Another Vs State of Rajasthan (2009) 3 Supreme Court Cases 767 the Hon'ble Apex Court considered the aspect of suspension of sentence pending appeal and release of appellant on bail and further held that when an appeal is preferred against the conviction in the High Court, the High Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending on the facts and circumstances of each case. While considering the suspension of sentence, each case is to be considered on the basis of nature of the offence, manner in which occurrence had taken place, whether in any manner bail granted ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (6) criapln3725.18 earlier had been misused. In fact, there is no straitjacket formula which can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion. While considering the application filed by the convict under Section 389 Cr.P.C.
C] In the case of Surinder Singh Alias Singhara Singh Vs State of Punjab (2005) 7 Supreme Court Cases 387 it was held that the Supreme Court in its decisions has laid down broad guidelines which the Courts must bear in mind while dealing with an application for grant of bail. None of the said decisions lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Indeed in a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any invariable rule or evolve a straitjacket formula. The Court must exercise its discretion having regard to all the relevant facts and circumstances. What the relevant facts and circumstances are, which the Court must keep in mind, has been laid down in a large number of decisions which are well known. It is, therefore, futile to attempt to lay down any invariable rule or formula in such matters.
D] Suresh Kumar and others Vs State (NCT of Delhi) (2001) 10 SCC 338.
::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (7) criapln3725.18
E] In the case of Anil Ari Vs State of West Bengal (2009)
11 Supreme Court Cases 363 the appellant who was nearly 70 years old was convicted for the offence under Sections 342 and 302 of the Indian Penal Code. He was in jail for nearly one year and on bail during trial. He was directed to be released on bail on his furnishing the stipulated security and it was clarified that release of appellant No.1 was only directed on considering his age and not on consideration of merits of the case.
F] In the case of Bhagwan Rama Shinde Gosai and others Vs State of Gujrat (1999) 4 Supreme Court Cases 421 it was held that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellant Court liberally unless there are exceptional circumstances. Of Course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But, if for any reason the sentence of a limited duration cannot be suspended every endeavor should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate Court finds that due to practical reasons such appeals cannot be disposed of ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (8) criapln3725.18 expeditiously the appellate Court must bestow special concern in the matter of suspending the sentence so as to make the appeal right, meaningful and effective. Of Course, appellate Courts can impose similar conditions when bail is granted. In the said case the appellants were convicted for the offence under Section 392 read with Section 397 of the IPC and each of them was sentenced to rigorous imprisonment for 10 years. Sentence recorded against the appellants was suspended and they were directed to be released on bail with certain conditions.
5. Learned APP for the respondent/State on the other hand opposed to grand the application on the grounds that mental condition of the victim girl is considered by the trial Court in paragraph No.29 of the judgment and she was mentally retarded. The work of sealing samples is the collective work of Doctor, Nurse and the staff and the said aspect has been considered by the trial Court in paragraph Nos.35, 36 and 37 of the judgment. PW-7 who carried samples to the analyzer for conducting DNA test has stated that the samples were in sealed condition and therefore, it cannot be said that there was no proper sealing of the samples as submitted by the learned counsel for the applicant and even if procedural lapses are there it cannot be considered at this stage when the applicant is Biological father of the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (9) criapln3725.18 female child of the victim girl. The DNA report (Exh.14) is admissible as per Section 293 of the Code of Criminal Procedure and the trial Court has properly considered the same in paragraph Nos.47 and 48. As such according to the learned APP as it is proved that the applicant has committed rape on mentally retarded victim girl the trial Court has convicted and sentenced him for the offence under Section 376 (2)(l) of the IPC which offence is serious in nature. It is submitted that considering the circumstance that applicant has committed rape on mentally retarded girl and the fact that the applicant was not on bail during the trial his request to suspend the sentence and to release him on bail cannot be considered. Thus, learned APP has prayed to reject the application.
6. I have carefully considered the submissions made by the learned counsel for the applicant and learned APP and I have gone through the impugned judgment and evidence adduced by the prosecution.
7. The evidence of Indubai Anna Bhingardive (PW-1) the informant/complainant who is mother of the victim girl is that the victim girl is mentally retarded deaf and dumb and that Tarabai (Parental aunt of victim girl) ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: ( 10 ) criapln3725.18 told her to take the victim girl for medical examination as the victim girl was complaining the stomach ache and that when the victim girl was taken to Civil Hospital, Ahmednagar, Doctor told that the victim girl was pregnant. She has also stated that the applicant resides in their village. He used to take his cattle for grazing from their house. Their house is on the way of his agricultural land. The applicant used to give signals to the victim girl whenever he used to pass from their house by raising and waiving hand. In her cross-examination she admitted that the victim girl used to talk with them by signs. She denied that they have falsely implicated the applicant.
8. The evidence of Dr.Sachin Solat (PW-2) shows that on 13.08.2016 when he was Chief Medical Officer in Civil Hospital, Ahmednagar, the victim girl who was deaf and dumb was examined by him and there was history of sexual assault on her and he took sample of her blood, nails, pubic hair and vaginal swab and were forwarded to the Chemical Analyzer. He stated that the victim girl was referred to the Gynecologist Dr. Mrs.Tupe and Dr. Karale Psychiatrist. He received reports from both of them and as per report of Gynecologist the patient was pregnant of more than 21 weeks and as per report of Psychiatrist the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: ( 11 ) criapln3725.18 patient was having clinically moderate mental retardation. In the cross-examination he denied that the patient was not mentally retarded, but of sound mind and she was capable of knowing everything.
9. The evidence of Dr. Ashok Karale (PW-5) who is Psychiatrist who examined the victim girl shows that her self care activities were poor. She was not speaking. She was having difficulty in hearing. Her mile stones in life were delayed. That means she started walking very late and as such mentally she was as good as a child when he examined her. According to him he found that victim has moderate mental retardation. In the cross-examination he admitted that the patient was not completely mentally retarded i.e. severe or profound mental retardation. He denied that the victim girl was not childish and was capable of giving consent. Thus, from the evidence of above witnesses it appears that the victim girl was mentally retarded. Therefore, prima facie there is no substance in the submissions of the learned counsel for the applicant that she was not mentally retarded and therefore, she was to be examined as witness by the prosecution. Therefore, there appears no question of her consent to act alleged against the applicant.
::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::( 12 ) criapln3725.18
10. The evidence of API Mandale (PW-6) shows that after the victim girl delivered a child he went to Mumbai and brought six kits for taking necessary samples. On 17.10.2016 he called all the three suspects to the Civil Hospital, Ahmednagar for sampling purpose and accordingly the Medical Officer collected samples and those were handed over to him. In his evidence DNA report (Exh.14) is exhibited. The evidence of PW-8 Dr.Sonawane shows that he had taken blood samples of all three different persons in the sample kits, and in the cross-examination he admitted that after collecting blood samples work of labelling and sealing was done by a Sister in his presence and supervision. The evidence of API Mandale (PW-6) also shows that he collected blood and nail samples of the victim girl. It has come in the evidence of ASI Markad (PW-7)that on 01.11.2016 he gone to Civil Hospital, Nashik to procure blood samples of the victim lady and her new born baby and he handed over two DNA sample kits to the Medical Officer. At that time, samples of blood of the victim girl and new born baby were taken by the Medical Officer in his presence and were leabelled and sealed and handed over to him by the concerned Doctor. He carried those samples to Ahmednagar. He denied that the samples were not taken in his presence. Thus, from the above evidence samples of blood of all three ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: ( 13 ) criapln3725.18 suspects including the applicant, the victim girl and her female child were taken and sealed.
11. It is seen from Exh.14 report of DNA that the applicant and victim girl are Biological parents of the female child born to the victim girl. The trial Court has considered admissibility of the said report in paragraph No.48 of the judgment and after referring the evidence of DNA report concluded in paragrah No.53 of the judgment that the appellant has committed sexual intercourse with the victim girl and committed the offence under Section 376 (2)(l) of the IPC.
12. Thus, the above referred evidence shows that the applicant aged 55 years has committed rape on mentally retarded victim girl which offence is punishable under Section 376(2)(l) of the IPC and looking to the serious nature of the said offence, the fact that the applicant was not on bail during the trial and as the applicant and the victim girl are from the same village, it is not the fit case to suspend the sentence recorded against the applicant and to release him on bail as prayed by him. The decisions referred earlier relied upon by the learned counsel for the applicant are of no help to the applicant in the facts and circumstances of the present case.
::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::( 14 ) criapln3725.18 Therefore, the application is liable to be rejected. Accordingly, the same is rejected. 13. Liberty is granted to applicant to move for
expeditious hearing of the appeal after service of notice on respondent No.2 and receipt of paper book from the trial Court, since the applicant is in jail since 14.01.2017. Record and proceedings be sent to the trial Court with a direction to re-submit the same with required number of paper books till next date i.e. 23.07.2019 which is returnable date of notice of respondent No.2 as per order dated 16.04.2019.
[S.M. GAVHANE, J.] VishalK/criapln3725.18 ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::