Bombay High Court
Pravin @ Bandu Ashok Dake vs The State Of Maharashtra on 11 August, 2020
Author: B. U. Debadwar
Bench: B. U. Debadwar
1 CrAppln.3831.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3831 OF 2019
IN
CRIMINAL APPEAL NO.1153 OF 2019
Pravin @ Bandu Ashok Dake .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr V.D. Sapkal, Senior Counsel for the applicant
Mr R.D. Sanap, Addl. Public Prosecutor for the respondent / State
...
CORAM : B. U. DEBADWAR, J.
Reserved on : 17-07-2020
Decided on : 11-08-2020
...
ORDER :-
1. This is an application filed under Section 389 of the Code of the Criminal Procedure, 1973 (hereinafter referred to as the 'CrPC') for suspension of sentence pending the appeal and release of appellant / applicant on bail.
2. The facts giving rise to the application, in nutshell, are as under :
. First informant, a middle age lady, is resident of village Chanda, Tal. Newasa, Dist. Ahmednagar. On 22-05-2017 Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 2 CrAppln.3831.2019 during night time she approached to Sonai Police Station, Tal.
Newasa, Dist. Ahmednagar and lodged the report inter alia contending that, on 21.05.2017 at about 02:30 p.m. the applicant / accused residing in their neighbouring house enticed and taken her minor daughter behind their back and without their consent. On the basis of the said report, initially, crime for the offence punishable under Section 363 of the Indian Penal Code (in short 'I.P.C.') vide Crime bearing No.I-65 of 2017 came to be registered on 22.05.2017 at about 12:41 a.m. and commenced investigation. During the course of investigation, it was transpired that, the applicant / accused along with other two accused kidnapped minor daughter of first informant from her lawful guardianship and without her consent, then took her initially to Shevgaon, then he alone carried her to various places including Beed, Hospet (Karnataka State), Bangalore (Karnataka State), Anantapur (Andhra Pradesh), Puttaparthi (Andhra Pradesh) and committed sexual intercourse with her in the lodges at Anantapur and Puttaparthi against her will, therefore, after completion of investigation, police authorities of Sonai Police Station charge - sheeted applicant/accused and three more accused for the offences punishable under Section 363, 376 (2)(n) r/w. Section 34 of the I.P.C. and Section 3 r/w. 4 of the Protection of Children From Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 3 CrAppln.3831.2019 Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act').
3. After framing the charge against all the four accused under Section 363, 366, 376 (2)(n) r.w. 34 of the I.P.C. and Section 3 r/w. 4 of the POCSO Act on 05.12.2017, learned Additional Sessions Judge, Newasa conducted trial and after conclusion of the trial, held applicant / accused guilty for the offence under Section 363, 376 (2)
(n) r.w. 34 of the I.P.C. and Section 3 r/w. 4 of the POCSO Act and sentenced him to suffer Rigorous Imprisonment for three years and to pay fine of Rs.5,000/-, in default of payment of fine amount, to suffer further simple Imprisonment for one month for offence under Section 363 of the I.P.C. and also sentenced him to suffer Rigorous Imprisonment for ten years and to pay fine of Rs.5,000/-, in default of payment of fine to suffer simple Imprisonment for three months for the offence punishable under Section 376 (2)(n) of I.P.C. and also directed to run both the sentences concurrently.
4. Being aggrieved by the judgment of conviction imposing aforesaid sentence on two counts, the applicant / accused preferred appeal before this Court and moved present application for suspension of substantive sentence and bail.
Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 4 CrAppln.3831.2019
5. Heard Mr V.D. Sapkal, learned Senior Counsel for the applicant / accused and Mr R.D. Sanap, Addl. Public Prosecutor for the respondent / State.
6. While taking me through the record and proceedings of the trial Court including FIR, charge-sheet, statement of victim girl recorded under Section 164 of the CrPC and ocular evidence of six witnesses examined by the prosecution, Mr V.D. Sapkal, learned Senior Counsel vehemently argued that, the impugned judgment and order of conviction is contrary to the evidence on record. Learned Additional Sessions Judge, Newasa failed to appreciate evidence on record in proper perspective and arrived at wrong conclusion. Evidence on record is too short to conclude that, the victim girl was minor below 18 years of age when alleged crime took place. Merely relying on some evidence which is not proved, the learned Additional Sessions Judge, Newasa gave the finding that, victim girl was minor below 18 years of age and thereby ignored ample evidence showing that the victim girl was fully matured and knowing well about good and bad, she herself joined the company of the accused and compelled him to roam to the different places. Besides, learned Additional Sessions Judge, Newasa did not consider the version of Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 5 CrAppln.3831.2019 the victim girl before the Court, which is quite contrary to her statement under Section 164 of the CrPC recorded by the concerned Judicial Magistrate First Class after following mandatory procedure. According to Mr Sapkal, learned Senior Counsel, impugned judgment suffers from many factual and legal aspects. The applicant / accused has every hope of success in appeal. He was on bail during the trial. He never jumped the bail. He is ready to furnish the bail and abide by the conditions that shall be imposed, if substantive sentence is suspended and released on bail.
7. Besides, Mr Sapkal, learned Senior Counsel, submitted that, since 2012 jail appeals are pending in this Court, therefore, it is not practically possible to hear and dispose of the appeal preferred by the applicant / accused in near future. The sentence awarded under the impugned judgment is a short term sentence. The applicant has two grown up children. He is only bread earner of his family. These are also the facts to be considered while suspending the sentence and releasing the applicant on bail during the period of appeal.
8. In support of his submissions, Mr Sapkal, learned Senior Counsel, placed his reliance on two judgments of the Hon'ble Supreme Court, one is rendered in the case of Suresh Kumar and Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 6 CrAppln.3831.2019 Others Vs. State (NCT of Delhi), (2001) 10 SCC 338 and another is rendered in the case of Bhagwan Rama Shinde Gosai Vs. State of Gujarat, 1999 DGLS (SC) 614.
9. Per contra, Mr R.D. Sanap, learned Addl. Public Prosecutor vehemently argued that, the impugned judgment of conviction, based on clear and cogent evidence, is correct, proper and legal in all respects. The prosecution has proved not only the fact that the victim was minor girl below the age of 18 when incident took place, but also proved that applicant / accused time and again committed sexual assaults on victim girl taking her to different places. There is no reason to discard the testimony of victim girl, which is corroborated by other documentary and ocular evidence including testimonies of her mother, Medical Officer and Investigating Officer. Learned Additional Sessions Judge, Newasa after having considered the totality of evidence, convicted the applicant / accused for the offences for kidnapping and rape / sexual assault on victim girl below 18 years of age and sentenced him, as referred above. The offence committed by the applicant / accused is a serious offence against the female child. There is no scope for setting aside the impugned judgment in appeal. Having regard to the merits Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 7 CrAppln.3831.2019 of the case and sentence imposed, the applicant may not be released on bail by invoking powers under Section 389 of the CrPC.
10. In the light of the aforesaid submissions made at bar by Mr V.D. Sapkal, learned Senior Counsel, representing for the applicant/accused and Mr R.D. Sanap, learned Addl. Public Prosecutor representing for the respondent / State, I have carefully gone through the record including ocular and documentary evidence adduced by the prosecution and impugned judgment assailed in appeal. Record and proceedings revealed that, to substantiate its case and prove the charges, the prosecution has examined as many as six witnesses including minor girl / prosecutrix (PW-2), Sangita Narayan Pachore, mother of the prosecutrix and first informant (PW-1), Dr. Ashok Shivaji Gawali, Medical Officer (PW-3) who examined victim girl / prosecutrix, Mr Rajkumar Narayan Sasane, Investigating Officer (PW-6) who investigated the case and charge - sheeted the accused, whereas applicant / accused has examined one Trupti Bramhdev Markad as defence witness (DW-1) to prove his defence about love affair of the victim girl with him.
11. To prove the fact that victim girl was below 18 years of age when incident took place, the prosecution has placed reliance on Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 8 CrAppln.3831.2019 the ocular evidence of the victim, her mother, bonafide certificate at Exh.112 and birth certificate at Exh.67. It is material to note that, date of birth of the victim girl neither finds place in FIR Exh.66 nor in supplementary statement of first informant recorded after 5 days of lodging of the FIR nor it does reflect in the evidence of victim girl or her mother. No doubt, during the cross-examination, the victim girl stated about her date of birth as per the school record, but the prosecution failed to prove the date of birth of the prosecutrix by bringing on record admission register and proving the entry pertaining to the date of birth of the victim girl made therein. In the absence of evidence proving entry pertaining to the victim girl made in the school register, merely on the basis of bonafide certificate at Exh.112 and birth certificate at Exh.67, the finding recorded by the learned Additional Sessions Judge about the age of the victim girl at the relevant time, prima facie cannot be said to be a correct finding.
12. Record shows that, birth certificate at Exh.67 was not collected by the Investigating Officer during the course of the investigation and annexed the same to the charge sheet along with other papers, but it appears to have been brought on record by the first informant and mother of the victim after commencement of the trial. Surprisingly, learned Additional Sessions Judge, Newasa Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 9 CrAppln.3831.2019 appears to have exhibited the same directly. No doubt, under Section 35 of the Evidence Act, an entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept, is itself a relevant fact. But, in absence of the extract of the birth register covering the entry pertaining to the birth of the victim girl and proving the same by examining custodian of birth register, the date of birth mentioned therein cannot be said to have been proved. Moreover, there is no ocular evidence as to prove that birth certificate Exh.67 is pertaining to the birth of victim girl. Mother of the victim girl and the first informant of the case nowhere stated in her evidence that, it was she who informed the competent authority of Grampanchayat about birth of victim girl and on the basis of the said information, the entry in birth register was taken and on the basis of the said entry, birth certificate (Exh.67) was prepared. Investigating Officer has also not deposed anything on this aspect. No doubt, evidence of the Medical Officer reveals that, age of the victim girl below 17 was determined on the basis of the radiological examination. However, neither radiological report appears to have been brought on record nor Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 10 CrAppln.3831.2019 proved the same by examining radiologist who conducted the radiological examination of the victim girl. Thus, prima facie evidence on record is not at all sufficient to prove that, at relevant time victim girl was child below the age of 18.
13. Upon going through the testimony and the statement of the victim girl recorded under Section 164 of the CrPC, it can be gathered very well that, during the trial victim girl has improved her version to great extent. The statement of victim girl under Section 164 of the CrPC demonstrates as to how she was in love with applicant / accused and as to how she voluntarily joined company of the applicant / accused and roamed with him at various places during 19.05.2017 to 26.05.2017, however in her testimony before the Court, narrated altogether different story. The evidence of Medical Officer clearly says that, marks of violence are not noticed on the person of the victim girl. Thus, having regard to the totality of the evidence, at this juncture, there appears force and substance in the submissions about the merits of the case made by the learned Senior Counsel Mr V.D. Sapkal.
14. In the case of Suresh Kumar and Others Vs. State (NCT of Delhi), (2001) 10 SCC 338, the Hon'ble Supreme Court while Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 11 CrAppln.3831.2019 explaining scope and ambit of Section 389 of the CrPC in para no.5 of the judgment held as under:
"5. This Court has stated in Bhagwan Rama Shinde Gosai v. State of Gujarat: (SCC p.422, para 3) "3. 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 appellate court liberally unless there are exceptional circumstances."
15. In the case of Bhagwan Rama Shinde Gosai Vs. State of Gujarat, 1999 DGLS (SC) 614, in para no.3 of the judgment, the Hon'ble Supreme Court held as under:
"3. WHEN a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can be considered by the appellate 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 limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing 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 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."
16. In the case at hand, the sentence imposed by the learned Additional Sessions Judge, Newasa is a fixed period of sentence i.e. ten years Rigorous Imprisonment. No exceptional circumstance has Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 ::: 12 CrAppln.3831.2019 been highlighted by the learned Addl. Public Prosecutor for deviating from the aforesaid course suggested by the Hon'ble Supreme Court.
17. Having regard to the totality of evidence and circumstances discussed above and the facts that applicant / accused was on bail during the trial, he never jumped the bail, there is no possibility of hearing appeal expeditiously, the sentence awarded by learned Sessions Judge, Newasa is fixed period of sentence, no exceptional circumstance has been highlighted by the learned Addl. Public Prosecutor for deprivation of bail pending appeal and the ratios laid down by the Hon'ble Supreme Court referred above, the applicant / accused deserves to be released on bail pending appeal with the certain conditions. Therefore, I suspend the substantive sentence imposed by the learned Additional Sessions Judge, Newasa in Special (POCSO) Case No.33 of 2017 dated 06.11.2019 and direct the applicant / accused to be released on bail on his executing P.R. Bond of Rs.25,000/- with one solvent surety of like amount with direction to report to Sonai Police Station, Tal. Newasa on every Monday and Tuesday during 04:00 p.m. to 06:00 p.m. till disposal of appeal pending before this Court. Bail before the Lower Court.
18. The Criminal Application is accordingly disposed of.
( B.U. DEBADWAR ) JUDGE Gajanan ::: Uploaded on - 11/08/2020 ::: Downloaded on - 12/08/2020 05:46:45 :::