By this application applicant/accused who hasbeen convicted for the offence punishable under Section376 (2)(l) of the Indian Penal Code and sentenced tosuffer rigorous imprisonment for the period of 10 yearsand 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) criapln3725.18to suffer simple imprisonment for year as per thejudgment and order dated 14.06.2018 in Special CaseNo.137/2017 passed by the Additional Sessions Judge,Ahmednagar has prayed to suspend the aforesaidsubstantive sentences pending hearing and final decisionof his appeal bearing Criminal Appeal No.560/2018challenging the conviction recorded against him and torelease him on bail and it appears that the appellant hasdeposited fine amount on the same day.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::Case of the prosecution is that the victim girlaged about 23 years is mentally retarded deaf and dumblady.She was residing with her parents.Her parents arelabours and they used to be out from the house in the daytime for labour work.The victim girl used to be alone atthe house.Her grand-mother used to be residing in theadjoining house which is her parental aunt.The applicantwho is resident of the same village is an agriculturist.The house of the victim girl is on the way of theagricultural land of the applicant.It was alleged thatin July, 2016 parental aunt of the victim girl visitedthe house of the victim girl and noticed some change inthe appearance of the victim girl.She pointed out thesaid change in the appearance of the victim girl to theinformant mother of the victim girl.The MedicalOfficer after examining the victim girl opined that shewas pregnant.The informant suspected that somebodycommitted forcible intercourse with the victim girl.During the investigation the informant raisedsuspicion on the appellant/accused, on the father of thevictim girl and on the cousin brother of the victim girl.The victim girl delivered a female child.Blood samplesof the said child, all the suspects including theapplicant and the victim girl were taken and in the DNAtest it was revealed that the applicant is Biologicalfather of the child of the victim girl.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::Mr.Ostwal, learned counsel for the applicantsubmitted that the applicant was arrested on 14.01.2017and he is in jail since the date of his arrest.Panchwitnesses have not supported the prosecution case.Nothing is recovered from the spot of incident.Thevictim girl is not completely mentally retarded as perthe Medical evidence on record and therefore the victimgirl was required to be examined by the prosecution.Consent of the applicant was not obtained while takingsample of blood.The prosecution has not examined theperson/expert who conducted DNA test and still DNA report ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (4) criapln3725.18is considered by the trial Court.As such, no opportunityhas been given to the appellant to dispute the DNAreport.His bail application was rejected by thetrial Court and bail application filed in this Court waswithdrawn as the trial was expedited.It is submittedthat in the above circumstances the evidence of PWs-5,6,8,9 and DNA report (Exh.14) relied upon by the trialCourt is not sufficient to sustain the convictionrecorded against the applicant and therefore sentencerecorded against the applicant may be suspended and hemay be released on bail, as final hearing of the appealwould take time, by allowing application.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::Mr.Ostwal, learned counsel for the applicant, tosupport his submissions that the sentence recordedagainst the applicant is of fixed term there are noexceptional circumstance to reject the request ofsuspension of sentence and to release the applicant onbail when it is not possible to take up the appeal of theapplicant for early hearing and that generally courtshould be liberal to suspend the sentence during pendency ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (5) criapln3725.18of the appeal challenging the sentence has mainly reliedupon the following decisions :::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::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.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::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.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.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::5. Learned APP for the respondent/State on theother hand opposed to grand the application on thegrounds that mental condition of the victim girl isconsidered by the trial Court in paragraph No.29 of thejudgment and she was mentally retarded.The work ofsealing samples is the collective work of Doctor, Nurseand the staff and the said aspect has been considered bythe trial Court in paragraph Nos.35, 36 and 37 of thejudgment.PW-7 who carried samples to the analyzer forconducting DNA test has stated that the samples were insealed condition and therefore, it cannot be said thatthere was no proper sealing of the samples as submittedby the learned counsel for the applicant and even ifprocedural lapses are there it cannot be considered atthis stage when the applicant is Biological father of the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (9) criapln3725.18female child of the victim girl.As such according to thelearned APP as it is proved that the applicant hascommitted rape on mentally retarded victim girl the trialCourt has convicted and sentenced him for the offenceunder Section 376 (2)(l) of the IPC which offence isserious in nature.It is submitted that considering thecircumstance that applicant has committed rape onmentally retarded girl and the fact that the applicantwas not on bail during the trial his request to suspendthe sentence and to release him on bail cannot beconsidered.Thus, learned APP has prayed to reject theapplication.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::I have carefully considered the submissions madeby the learned counsel for the applicant and learned APPand I have gone through the impugned judgment andevidence adduced by the prosecution.The evidence of Indubai Anna Bhingardive (PW-1)the informant/complainant who is mother of the victimgirl is that the victim girl is mentally retarded deafand dumb and that Tarabai (Parental aunt of victim girl) ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: ( 10 ) criapln3725.18told her to take the victim girl for medical examinationas the victim girl was complaining the stomach ache andthat when the victim girl was taken to Civil Hospital,Ahmednagar, Doctor told that the victim girl waspregnant.She has also stated that the applicant residesin their village.He used to take his cattle for grazingfrom their house.Their house is on the way of hisagricultural land.The applicant used to give signals tothe victim girl whenever he used to pass from their houseby raising and waiving hand.In her cross-examination sheadmitted that the victim girl used to talk with them bysigns.She denied that they have falsely implicated theapplicant.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::The evidence of Dr.Sachin Solat (PW-2) showsthat on 13.08.2016 when he was Chief Medical Officer inCivil Hospital, Ahmednagar, the victim girl who was deafand dumb was examined by him and there was history ofsexual assault on her and he took sample of her blood,nails, pubic hair and vaginal swab and were forwarded tothe Chemical Analyzer.He stated that the victim girl wasreferred to the Gynecologist Dr. Mrs.Tupe and Dr. KaralePsychiatrist.He received reports from both of them andas per report of Gynecologist the patient was pregnant ofmore than 21 weeks and as per report of Psychiatrist the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: ( 11 ) criapln3725.18patient was having clinically moderate mentalretardation.In the cross-examination he denied that thepatient was not mentally retarded, but of sound mind andshe was capable of knowing everything.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::The evidence of Dr. Ashok Karale (PW-5) who isPsychiatrist who examined the victim girl shows that herself care activities were poor.She was not speaking.Shewas having difficulty in hearing.Her mile stones in lifewere delayed.That means she started walking very lateand as such mentally she was as good as a child when heexamined her.According to him he found that victim hasmoderate mental retardation.In the cross-examination headmitted that the patient was not completely mentallyretarded i.e. severe or profound mental retardation.Hedenied that the victim girl was not childish and wascapable of giving consent.Thus, from the evidence ofabove witnesses it appears that the victim girl wasmentally retarded.Therefore, prima facie there is nosubstance in the submissions of the learned counsel forthe applicant that she was not mentally retarded andtherefore, she was to be examined as witness by theprosecution.Therefore, there appears no question of herconsent to act alleged against the applicant.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::( 12 )The evidence of API Mandale (PW-6) shows thatafter the victim girl delivered a child he went to Mumbaiand brought six kits for taking necessary samples.On17.10.2016 he called all the three suspects to the CivilHospital, Ahmednagar for sampling purpose and accordinglythe Medical Officer collected samples and those werehanded over to him.In his evidence DNA report (Exh.14)is exhibited.The evidence of PW-8 Dr.Sonawane shows thathe had taken blood samples of all three different personsin the sample kits, and in the cross-examination headmitted that after collecting blood samples work oflabelling and sealing was done by a Sister in hispresence and supervision.The evidence of API Mandale(PW-6) also shows that he collected blood and nailsamples of the victim girl.It has come in the evidenceof ASI Markad (PW-7)that on 01.11.2016 he gone to CivilHospital, Nashik to procure blood samples of the victimlady and her new born baby and he handed over two DNAsample kits to the Medical Officer.At that time, samplesof blood of the victim girl and new born baby were takenby the Medical Officer in his presence and were leabelledand sealed and handed over to him by the concernedDoctor.He carried those samples to Ahmednagar.He deniedthat 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 ) criapln3725.18suspects including the applicant, the victim girl and herfemale child were taken and sealed.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::[S.M. GAVHANE, J.]VishalK/criapln3725.18 ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::

Sections cited: Section 376 in The Indian Penal Code, Section 506 in The Indian Penal Code, Section 342 in The Indian Penal Code, Section 392 in The Indian Penal Code, Section 376(2) in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 325 in The Indian Penal Code, Section 397 in The Indian Penal Code