Bombay High Court
Upendra Pragaji Gohil vs The State Of Maharashtra on 10 January, 2022
Author: Prakash D. Naik
Bench: Prakash D. Naik
Digitally signed
PALLAVI
by PALLAVI
MAHENDRA 30-ia-2989.21.doc
WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2022.01.11
17:20:17
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2989 OF 2021
IN
CRIMINAL APPEAL NO.874 OF 2021
Mr. Upendra Pragaji Gohil ...Applicant
Versus
The State Of Maharashtra ...Respondent
Shri. Rahul Arote, Advocate for the Applicant/Appellant.
Shri. S.H. Yadav, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 10th JANUARY, 2022.
PER COURT:
1. This is an application for suspension of sentence of
imprisonment imposed vide judgment and order dated 4 th October
2021 passed by the learned Additional Sessions Judge, Greater
Mumbai in Sessions Case No.428 of 2016. The applicant has been
convicted for the offences punishable under section 376 r/w section
511 of Indian Penal Code and sentence to suffer RI for six years and
fine of Rs.10,000/-, and the offence punishable under section 506
of IPC and section 323 of IPC and sentenced to suffer RI for one
year each respectively. The applicant was taken in custody.
2. The case of the prosecution in short is that the victim
and the applicant - accused are residents of same building. On 16 th
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January 2016, at about 9.30 pm, while the victim was on the
terrace of the building, the applicant came on the terrace and told
her that he likes her and want to marry her. He closed the doors of
the terrace and sexually assaulted her by using force. She was
threatened not to disclose the incident to any person. Subsequently,
the victim and her parents approached the Police and the complaint
was registered.
3. The previous application seeking suspension of
sentence was withdrawn vide order dated 3rd November 2021. The
said application was apparently withdrawn before appeal was
admitted by this Court. It is not disputed that the application was
not argued on merits.
4. The learned counsel for the applicant submitted that
the applicant was on bail during the trial and he has not misused
the facility of bail. The judgment of the trial Court suffers from
serious infirmity. The applicant has been convicted for offence
under section 376 r/w 511 of IPC. The applicant has been falsely
implicated in this case. The evidence on record discloses that the
relationship between the applicant and the victim and her family
was not cordial. The complaints were lodged against each other.
The victim was in relationship with the person from the next
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building and he used to frequently visit the house of the applicant
which was objected by the applicant and the several other
residents. In view of that, the applicant has been falsely implicated
in this case. The medical evidence does not support prosecution
case. The appeal may not reach for hearing within a short span of
time.
5. Learned APP submitted that the offence is of serious
nature. The evidence adduced before the trial Court established the
offences. Although the medical evidence does not support the fact
that there was sexual intercourse, the injuries suffered by the
victim indicate that there was an attempt to commit sexual
intercourse for which the applicant has been convicted by the trial
Court. Hence, the sentence of imprisonment may not be suspended.
6. Undisputedly, the appellant/applicant was on bail
during the trial. There is no report that he has misused the facility
of bail. I have perused the evidence of victim, medical officer and
the other evidence adduced by the prosecution. From the
deposition of the victim, it can be seen that the relationship
between both the families was strained. Complaints were lodged
against each other. The victim has admitted that she was in
relationship with the boy from the adjacent building. He used to
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visit her house frequently. There was physical relationship between
them. The defence of the applicant is that on account of victim's
relationship with the boy they were indulging in objectionable
activities and the applicant and others had objected that and this
was the reason for lodging false FIR. The applicant - appellant was
charged for offence under section 376 of IPC. Doctor has opined
that there was no sexual intercourse.
7. The applicant's appeal has been admitted by this
Court. The appellant has challenged the conviction against him.
The appeal may not come up for hearing within short span of time.
The maximum sentence imposed by the trial Court is six years. The
applicant has urged that judgment of conviction suffers from
discrepancies.
8. In view of the above, the sentence of imprisonment
can be suspended and bail can be granted to the applicant. Hence,
the following order:-
ORDER
(i) Interim Application No.2989 of 2021 is allowed;
(ii) During the pendency of Criminal Appeal No.874 of 2021, the sentence of imprisonment awarded by the learned Additional Sessions Judge, Greater Mumbai pmw 4 of 5 30-ia-2989.21.doc vide judgment and order dated 4th October 2021 in Sessions Case No.428 of 2016 is suspended and the applicant is directed to be released on bail on executing P.R. Bond in the sum of Rs.25,000/- with one or more solvent sureties in the like amount;
(iii) The applicant is permitted to furnish cash bail in the sum of Rs.25,000/- for a period of eight weeks in lieu of surety;
(iv) The applicant shall report the trial Court once in six months on first Monday of the said month between 11.00 am to 1.00 pm till the decision in the appeal;
(v) In the event, there are two consecutive defaults in appearing before the trial Court by applicant, the said fact shall be brought to the notice of this Court;
(vi) Interim Application is disposed of.
(PRAKASH D. NAIK, J.)
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