1 crap749.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 749 OF 2011 IN CRIMINAL APPEAL NO. 87 OF 2011 Bhausaheb s/o Motiram Gonde ...Applicant/Appellant VERSUS The State of Maharashtra ...Respondent ..... Shri S.J.Salunke, advocate for applicant/appellant Shri V.G.Shelke, A.P.P. for respondent/State ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 25 th March, 2011 PER COURT : 1 Heard Shri S.J.Salunke, advocate for applicant/appellant and Shri V.G.Shelke, A.P.P. for respondent/State. 2 This is an application preferred by the applicant (original 2 crap749.11 accused), seeking bail, pending hearing and final disposal of Criminal Appeal No. 87 of 2011, suspending the substantive sentences inflicted upon him by the learned Additional Sessions Judge, Majalgaon, by the judgment and order, dated 5.2.2011 by the Trial Court. It appears that the applicant was convicted by the learned Additional Sessions Judge, Majalgaon, in Sessions Case No. 22 of 2010 for the offence punishable under Section 363 of the Indian Penal Code and sentenced him to suffer R.I. for two years and to pay fine of Rs.1,000/- in default of payment of fine further to suffer R.I. for three months; and also convicted for the offence punishable under Section 366 of the Indian Penal Code and sentenced him to suffer R.I. for four years and to pay fine of Rs.1,000/- in default of payment of fine further to suffer R.I. for three months; as well as convicted him for the offence punishable under Section 376(1) of the Indian Penal Code and sentenced him to suffer R.I. for seven years and to pay fine of Rs.1,000/- in default of payment of fine further to suffer R.I. for three months, and the afore said substantive sentences were directed to run concurrently. 3 I have admitted the said appeal today only by passing separate order therein. 4 The allegations against the applicant are that he allegedly kidnapped the minor prosecutrix Anita on 7.11.2009 with the intention or knowingly that she may be or will be seduced to illicit intercourse but also 3 crap749.11 committed rape upon her. It is alleged that there was acquaintance between the accused and the father of the prosecutrix, who was working in the adjoining field, and therefore, they were on the visiting terms with each other, and the accused is a married person, living with his wife and children in a shed constructed in the field of Chandrakant Shelke. Due to acquaintance and visiting terms between the accused and the father of the prosecutrix, minor girl, the prosecutrix knew the accused. On 7.11.2009, when the prosecutrix was alone in the house, it is alleged that the accused allured her with a false promise of marriage and took her from places to places and also resided in a lodge with her and there committed rape upon her. 5 Learned counsel for the applicant submitted that the theory advanced by the prosecution in respect of alleged offences is not digestible and the conduct of the prosecutrix appears to be suspicious, since she accompanied with the accused from places to places, but did not raise hue and cry and did not complain about the accused. It is also submitted that the prosecutrix is above 17 years and is of age of understanding, but still she accompanied with the accused and resided with him in the lodge, and therefore, there appears to be consensual intercourse between them, and hence, the prosecution case is not conceivable. 6 Learned counsel for the applicant relied upon the judicial 4 crap749.11 pronouncement of this Bench, in the case of Shaikh Feroz s/o Shaikh Jainoddin vs State of Maharashtra and anr, reported at 2011 ALL MR (Cri) 538 and also relied upon the case of S.Varadarajan vs State of Madras, reported at AIR 1965 SC 942. 7 It is also canvassed by the learned counsel for the applicant that the applicant has deposited the fine amount before the Trial Court and the applicant was on bail during the pendency of Trial and he has not misused said liberty granted to him. It is further submitted that the substantive sentences awarded to the applicant are of short term sentences, and in the said context, relied upon the case of Kirankumar vs State of M.P., reported at 2001 AIR SCW 5130. It is further submitted by the learned counsel for the applicant that the applicant has challenged the conviction and sentences inflicted upon him in the appeal, which has been admitted by this court and there is no possibility of taking up the said appeal for final hearing in near future, and therefore, the applicant is required to be enlarged on bail during the pendency of the said appeal. 8 Learned Additional Public Prosecutor opposed the present application and submitted that to substantiate the charged levelled against the applicant, the prosecution examined in as much as eight witnesses and the testimony of prosecutrix i.e. PW6 Anita connects the applicant with the crime. It is further submitted that the learned Trial Court has scrutinized and assessed the evidence and came to the conclusion that 5 crap749.11 the accused is guilty of the offences with which he was charged, and therefore, convicted and sentenced him, as afore stated. It is further submitted that the view adopted by the Trial Court cannot be faulted with and the learned Additional Public Prosecutor supported the said judgment and order of conviction and submitted that the present application bears no substance and same is devoid of any merits, and therefore, same deserves to be rejected. 9 I have perused the impugned judgment and order, dated 5.2.2011 rendered by the learned Additional Sessions Judge, Majalgaon, in Sessions Case No. 22 of 2010 and also perused the R. and P. with the assistance of the learned counsel for the parties and it is evident from the impugned judgment that the applicant has deposited the fine amount before the Trial Court on 5.2.2011 itself. Moreover, admittedly the applicant was on bail during the pendency of the trial and there is no grievance of the respondent in respect of any misuse of the said liberty by the applicant. Besides that, the substantive sentences inflicted upon the applicant for the offence punishable under Section 363 of the Indian Penal Code is R.I. for two years and also for the offence punishable under Section 366 is R.I. for four years and for the offence punishable under Section 376(1) of the Indian Penal Code is R.I. for seven years, which appear to be short term sentences relying upon the judicial pronouncement by Hon’ble Supreme Court and the observations made in the case of Kirankumar (supra). 6 crap749.11 10 Moreover, the applicant/appellant has challenged the said conviction and sentence inflicted upon him by way of judgment and order dated 5.2.2011 rendered by the learned Additional Sessions Judge, Majalgaon, in Sessions Case No. 22 of 2010 before this court in Criminal Appeal No. 87 of 2011 and the said appeal has been admitted by this court today only and it is apparent that the said appeal cannot be taken up for final hearing in near future. 11 In the circumstances, having the comprehensive view of the matter, present application deserves to be allowed by imposing stringent conditions upon the applicant. 12 In the result, present application is allowed and it is directed that the applicant be released on bail in the sum of Rs.20,000/- with one surety in the like amount on the conditions mentioned herein below, pending hearing and final disposal of Criminal Appeal No. 87 of 2011, suspending the substantive sentences inflicted upon the applicant. (i) The applicant shall not influence upon the witnesses and/or tamper with the evidence, directly or indirectly. (ii) The applicant shall not enter into the area of Kasba Dharur, Taluka Dharur, District Beed where the prosecurix Anita resides, till disposal of Criminal Appeal No. 87 of 2011. 7 crap749.11 (iii) The applicant shall give attendance before Dharur police station once in six months till the disposal of Criminal Appeal No. 87 of 2011. 13 R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap749.11