1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4126/2010 IN CRIMINAL APPEAL NO. 408/2010 WITH CRIMINAL APPLICATION NO. 4048/2010 IN CRIMINAL APPEAL NO.398/2010 WITH CRIMINAL APPLICATION NO. 3978/2010 IN CRIMINAL APPEAL NO. 392/2010 Mr. Joydeep Chatterji, Advocate for applicant in Criminal Application No.4126/2010. Mr. S.G. Ladda, Advocate for applicant in Criminal Application NO. 4048/2010. Mr. S.N. Ghanekar, Advocate for applicants in Criminal Application No. 3978/2010 Mr. S.G. Nandedkar, A.P.P. for respondent/State. CORAM : A.V. NIRGUDE, J. Date : 23rd November, 2010. PER COURT : 1. All the three applications seeking bail can be decided by this common order. 2 The applicant in Application No. 4126/2010 was accused No.1 in the lower Court. The applicants in application No. 3978/2010 were accused No. 2 and 5 in the lower Court. The applicant in application No. 404/2010 was accused No.3 in the lower Court. 3 Original accused No. 1 was convicted under Section 372 of Indian Penal Code and other applicants were convicted under Section 373 of Indian Penal Code. It is the case of the prosecution that a minor girl was seduced for the prostitution mainly by the 2 accused No.1. The accused No.1 took advantage of helplessness of the victim and sent her to various customers for prostitution. This was going on for quite some time. Ultimately on 22/04/2007 the accused Nos. 2, 3, 5 and one more person were found in the company of the victim girl in a restaurant at about 2.00 a. m. in the night. They were apprehended. The victim then made a statement to the police that she was being let out by the accused No.1 to various persons for the purpose of prostitution and illicit intercourse. She further stated that accused No.1 had let her out to the accused Nos. 2, 3, 5 and another person on that day, for illicit sexual intercourse. However, at the time of trial, the victim girl turned hostile and refused to support the prosecution case. 4 The learned judge placed reliance on the deposition of a prosecution witness by name Sugave, to hold that the offence under Section 372 of Indian Penal Code was proved against the accused No.1. Prosecution witness Sugave stated before the Court that when she apprehended the accused Nos., 2, 3 and 5 along with victim, she was told by the victim that she was being let out by the accused No.1 for illicit intercourse. This hearsay evidence was held to be admissible in view of the judgment of this Court in the case of Mr. Lalmand Vs. State reported in 2010 All Maharashtra (Cri.) 102. As to whether the ratio of the above mentioned judgment is applicable to the facts of this case, is debatable and requires consideration. Besides, the evidence against the accused No.1 is rather weak and so, she being a woman deserves bail pending the appeal. 5 As against the accused Nos.2, 3 and 5, the case is still weaker. There is no witness who stated that he found the accused No.2, 3 and 5 possessing the victim girl. All that has come on record is that the police apprehended accused nos. 2, 3 and 5 at a 3 restaurant at 2.00 a. m. in the night and at the same time, victim was also present in the restaurant. There is no material on record to show that the appellants had intention to use the victim for the purpose of intercourse. Despite this, the accused Nos. 2, 3 and 5 were convicted. I think, they deserve bail pending the appeal. ORDER a) All the three applications are allowed. b) The substantive sentence awarded by the learned judge of the trial court is suspended during pendency of appeal. c) All the applicants / the original accused Nos. 1, 2, 3 and 5 be released on bail, on their executing P.R. bond of Rs.20,000/- (Rs. Twenty thousand) each with one surety in the like amount. d) Criminal applications disposed of. e) The parties to act upon copy of this order duly authenticated by Sirastedar of this Court. (A.V. NIRGUDE, J) ts k/