IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION NO.4102/2008 IN CRIMINAL APPEAL NO. 808 OF 2008 (Fulaji Kinake ..vs. State of Mah..) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- CORAM : S.R.DONGAONKAR, J. DATE : 2 nd May, 2009 Heard Shri Amle, Advocate for the applicant and Shri Thakre APP for state. The applicant has been convicted for the offence punishable under section 376 of and 448 of IPC. The appeal of the appellant has been admitted for final hearing. The only question is whether sentence imposed against him should be suspended pending final hearing of the appeal. Learned counsel for the appellant has drawn my attention to the evidence of the prosecutrix wherein she stated - “Accused kept cycle on stand and came to me. He caught my hand. Accused was under the influence of liquor. Accused driven two children. I was weeping. Accused lifted my clothes and gagged my mouth. Accused fell down.” thereafter she did not depose anything. It is clearly noted by learned trial Judge that the witness is not stating any further evidence – not giving any sign about the commission of offence, meaning thereby about actual rape, she did not depose anything. Learned APP has also drawn my attention to the C.A. Report, There is nothing in it; which may directly incriminate the appellant. Peculiar question that arises in this case is that when prosecutrix is not deposing anything about actual incident of rape, whether in such circumstances, evidence of other witnesses can prove the alleged incident. That aspect needs consideration at the time of final hearing. As this court is presently considering the issue as to whether the bail is to be granted to the appellant or not, consideration of evidence of the prosecutrix has material impact and as it does not reflect the incident of rape in particular, the applicant would be entitled for bail. Applicant/ appellant be released on bail, on furnishing surety and PRB of Rs.15000/-, subject to condition that he shall not leave jurisdiction of the P.S. Mukutban, without informing his new address to the P.S.O. Mukutban and deposit the fine amount in the court. On furnishing bail, substantive sentence imposed against the appellant by trial court shall stand suspended till the disposal of this appeal. Bail in lower court. Application stands disposed of. JUDGE SMP