Bombay High Court
Pintu Maharaj @ Bhikan Natthu Chaure vs The State Of Maharashtra on 30 April, 2019
(1) ca3143.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3143 OF 2018
IN
CRIMINAL APPEAL NO. 681 OF 2018
Pintu Maharaj @ Bhikan Natthu Chaure
Age :- Major Years, Occu: Labour
R/o Bodkikhadi Tq Sakri Dist Dhule
... APPLICANT
(Ori. Accused)
VERSUS
The State of Maharashtra
... RESPONDENT
Mr. Hemantkumar Pawar, Advocate h/f Mr. Vikrant P.Raje,
Advocate for the applicant
Mr.P.N. Kutti, APP for the respondent/State.
CORAM : S.M.GAVHANE,J.
RESERVED ON : 02/04/2019
PRONOUNCED ON : 30/04/2019
ORDER :-
. By this application the applicant/accused who has been convicted for the offences punishable under Sections 376(2), 506 of the Indian Penal Code (for short IPC) and under Section 3(2) of the Maharashtra Prevention and Eradication of Human Sacrifice and other inhuman, Evil and Aghori Practices and Black Magic Act, 2013 (hereinafter referred to as 'Black Magic Act') and sentenced to suffer Rigorous Imprisonment for ten years and to pay a fine of Rs.20,000/- (Rs. Twenty Thousand ::: Uploaded on - 30/04/2019 ::: Downloaded on - 01/05/2019 21:25:15 ::: (2) ca3143.18 only), in default to suffer R.I. for three months for the offence under Section 376(2) of the IPC, to suffer R.I. for three years and to pay a fine of Rs.10,000/- (Rs. Ten Thousand only), in default sentenced to suffer R.I. for two months for offence under Section 506 of the IPC and further sentenced to suffer R.I. for three years and to pay a fine of Rs.5,000/- (Rs. Five Thousand only), in default sentenced to suffer R.I. for one month for offence under Section 3(2) of the Black Magic Act, by the Additional Sessions Judge, Dhule as per judgment and order dated 04/08/2018 in Sessions Case No.37/2016, has prayed to suspend the substantive sentences recorded against him and to release him on bail pending the hearing and final disposal of his appeal bearing Criminal Appeal No.681 of 2018 challenging the aforesaid conviction and sentence recorded against him.
2. Mr.Pawar, learned counsel for the applicant submitted that the applicant is in jail since the date of his arrest on 21/12/2015. As per prosecution case the prosecutrix (PW-1) and her husband (PW-2) are the material witnesses. As per prosecution case the incident took place on 26/11/2015 at the house of applicant/ ::: Uploaded on - 30/04/2019 ::: Downloaded on - 01/05/2019 21:25:15 ::: (3) ca3143.18 accused. The complaint/FIR was lodged on 21/12/2015. Thus, there is an inordinate delay in lodging the FIR against the applicant. Therefore, the prosecution case is not acceptable when the prosecution has not explained the delay.
3. Mr.Pawar, learned counsel for the applicant further by inviting my attention to the evidence of the prosecutrix (PW-1) who is married lady submitted that on the date of incident alongwith her husband the prosecutrix went to the house of the applicant/accused at Bodkikhadi for taking treatment as the prosecutrix had no issue and they reached at the house of the applicant at about 4.00 p.m. The evidence of the prosecutrix shows that on that day the applicant took her at the Nala for performing pooja and there applicant allegedly removed her all clothes and committed rape on her and thereafter applicant and the prosecutrix came back to the house of the applicant, where PW-2 husband of the prosecutrix was present and again the applicant had taken the prosecutrix at the Nala and committed forcible sexual intercourse with the prosecutrix and thereafter returned to the house of the applicant. ::: Uploaded on - 30/04/2019 ::: Downloaded on - 01/05/2019 21:25:15 :::
(4) ca3143.18 Learned counsel for the applicant submitted that
although the prosecutrix claims that on the date of incident on two occasions the applicant committed forcible sexual intercourse with the prosecutrix, she did not disclose said incident to her husband (PW-2). According to learned counsel for the applicant the prosecutrix admitted that after the aforesaid incidents she alongwith the applicant returned home and for the whole night they halted at the house of applicant/accused and the prosecutrix and her husband were sleeping in the first room of the house of applicant and during the whole night she did not tell her husband about the commission of rape by the applicant twice, upon her. Even she admitted that she alongwith her husband did not go in Sakri Police Station in the morning for lodging report and further admitted that after happening of incident for one month she did not tell incident to anybody. Moreover, learned counsel for applicant submitted that even PW-2 the husband of the prosecutrix in paragraph 5 of his evidence admitted that till leaving the house of applicant/accused for returning to their home, his wife did not tell him anything about happening of incident and further he ::: Uploaded on - 30/04/2019 ::: Downloaded on - 01/05/2019 21:25:15 ::: (5) ca3143.18 admitted that the prosecutrix his wife did not tell him anything about the incident up to one month. So also, PW-2 admitted that after the applicant had come to his house on the next day prosecutrix lodged the report. Thus, according to learned counsel for a period of one month after the incident which has allegedly taken place on 26/11/2015 the prosecutrix (PW-1) and her husband (PW-2) did not lodge report in the police Station. Therefore according to learned counsel for the applicant the evidence of the prosecutrix does not inspire confidence about the happening of the incident and hence conviction of the applicant on the basis of sole evidence of the prosecutrix is not sustainable as the evidence of the prosecutrix is not trustworthy.
4. According to learned counsel for the applicant, evidence of the prosecutrix and her husband is inconsistent as regards the room in which they were sleeping at the house of the applicant on the date of incident. So also, learned counsel for the applicant has submitted that after one month of the alleged incident of rape the applicant had come to the house of the prosecutrix and while the prosecutrix was alone in her ::: Uploaded on - 30/04/2019 ::: Downloaded on - 01/05/2019 21:25:15 ::: (6) ca3143.18 house forcibly caught hold her hand but charge in that respect has not been framed. Learned counsel for the applicant has further submitted that evidence is not properly recorded.
5. Thus, the learned counsel for the applicant has submitted that as the sentence imposed on the applicant is of fixed period and as early hearing of the appeal of the applicant is not possible execution of substantive sentences recorded against the applicant be suspended till the final hearing and decision of the appeal filed by the applicant and the applicant be released on bail and that applicant is ready to abide by the conditions that may be imposed by this Court.
6. Learned APP, on the other hand, submitted that the evidence of PWs-1,2 and 3 is material. The prosecutrix is a Adiwasi woman. Sentence of 10 years recorded against the applicant is not short term sentence and therefore it is not fit case to release the applicant on bail.
7. I have carefully considered the submissions ::: Uploaded on - 30/04/2019 ::: Downloaded on - 01/05/2019 21:25:15 ::: (7) ca3143.18 made by the learned counsel for the applicant and learned APP. I have perused the evidence adduced by the prosecution and the impugned judgment and order.
8. On perusal of the evidence of the prosecutrix (PW-1) and her husband (PW-2) who are the material witnesses as regards the incident which has allegedly taken place on 26/11/2015 at the house of the applicant/accused, it is seen that even after the incident of having sexual intercourse on two occasions, the prosecutrix did not disclose said incident to her husband for a period of one month. Moreover, after the incident on 26/11/2015 the FIR was lodged by the prosecutrix on 21/12/2015 and thus there is delay of about 25 days in lodging the FIR, no explanation is given by the prosecution about the said delay in lodging the FIR. When the prosecutrix did not tell anything to her husband about the incident for a period of one month after the incident prima facie there is substance in the submission of the learned counsel for the applicant that the evidence of the prosecutrix does not inspire confidence and if the evidence of the prosecutrix does not inspire confidence the sole testimony of the ::: Uploaded on - 30/04/2019 ::: Downloaded on - 01/05/2019 21:25:15 ::: (8) ca3143.18 prosecutrix cannot be made basis for convicting the applicant. Considering this aspect, the fact that sentence imposed on the applicant is of fixed term and the fact that final hearing of the appeal is not possible in near future since this is an appeal of 2018, I am of the view that the applicant has made out a case to suspend the substantive sentences recorded against him and to release him on bail pending the hearing and final disposal of his appeal as requested. Therefore, in the result following order is passed.
ORDER
(i) Application is allowed.
(ii) Execution of substantive sentences recorded
against the applicant/accused as per the judgment and order dated 04/08/2018 passed by the Additional Sessions Judge, Dhule in Sessions Case No.37/2016 is suspended pending the hearing and final decision of the appeal.
(iii) Meanwhile, the applicant/accused be released on bail on his furnishing P.R. bond of Rs.30,000/- (Rupees Thirty Thousand) with solvent surety of the like amount on conditions that;
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(9) ca3143.18
(a) He shall not in any manner cause inducement/threat to the prosecutrix (PW-1).
(b) He shall not indulge in any offence.
(c) He shall attend hearing of the appeal as and when he would be directed to attend.
(iv) Compliance of the order be made before the trial Court.
[S.M.GAVHANE,J.] ssp/Apr.19/ca3143.18 ::: Uploaded on - 30/04/2019 ::: Downloaded on - 01/05/2019 21:25:15 :::