1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (APPA) No. 154/2011 in Criminal Appeal No. 2/2011 (Mahendra Govind Rathod .vs. State of Maharashtra through PSO Ghatanji ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. S.V. Sirpurkar, Advocate for Appellant/applicant. Mr. S.B. Ahirkar, APP for Respondent. .......... CORAM : P.D. KODE, J. DATED : MAY 03, 2011 Heard. By the present application, the applicant/accused convicted for offence under Section 376 of IPC and sentenced to suffer R.I. for 7 years and to pay a fine of Rs.2000/- in default to suffer S.I. for 6 months, has prayed for suspension of substantive sentence imposed upon him and releasing him on bail. The learned counsel for the applicant by drawing attention to the admission of prosecutrix recorded in para 4 of her deposition, urged that the same signifies that the alleged physical relationship with her was with her consent. It is urged that trial Court has already arrived at the finding of age of the prosecutrix being above 16 years. It is urged that 2 considering the aforesaid two aspects whether the prosecutrix had given the consent to have sexual relationship or the same was obtained by giving false promise of marriage would be a highly debatable issue and so also the conviction of the appellant recorded for under Section 376 of IPC. It is further urged that the applicant was on bail throughout the proceedings before the trial Court. It is urged that the applicant is also facing the proceeding for maintenance initiated by the prosecutrix and her child and he would be bound to comply order, if any, passed in the same and particularly regarding payment of the maintenance. It is urged that he will able to comply the same by earning only in the event of himself being released on bail. The learned counsel thus contended that considering the aforesaid factors, applicant had made out an exceptional case for suspending the sentence awarded to him. It is urged that the sentence being imposed for the fixed duration and the applicant having a fair chance of succeeding in the appeal preferred by him in the event of ultimately his appeal being allowed, no fruitful purpose would be served except himself having remained into the custody for a long duration unnecessarily. The reliance is also placed upon the decision of Apex Court in the case of K.P. Thimmappa Gowda .vs. State of Karnataka in Criminal Appeal No. 1499 of 2004. It is urged that the reasoning given in the said decision would be squarely applicable to the case of the applicant and as such he has made out a case for bail on such conditions as would be deemed fit and proper by the Court. 3 The application is opposed by the learned APP by urging that the fact of the applicant having physical relationship with the prosecutrix has been duly established by the evidence on record and particularly that of result of DNA test. It is urged that in view of the same, the prayer for bail may not be upheld. It is urged that merely because the victim has continued to cohabit with the applicant, cannot be said to be a circumstance in favour of the applicant because the facts denotes that she has no other alternative but to continue with him. After giving thoughtful consideration to the submissions advanced and peculiar facts and circumstances of the instant case and the ratio of the decision pointed, there appears prima facie substance in the submission advanced by the learned counsel for the applicant that it is debatable whether physical relationship in between the applicant and the victim was due to false promise of marriage given by him or the same was with consent. In view of the same, the applicant has made out a case for suspension of sentence and releasing him on bail by imposing certain conditions as warranted by the facts and circumstances of the present case. Pending hearing and disposal of the appeal, the substantive sentence of imprisonment imposed upon the appellant is hereby suspended subject to depositing the fine amount and further he is directed to be released on bail subject to furnishing a PR bond in the sum of Rs. 30,000/- (Rs. Thirty Thousand) with two solvent sureties in the like amount and subject to the conditions of : (i) staying at the address mentioned in the appeal memo 4 and not changing the same without the permission of the Court, (ii) not indulging in any activity of threatening, intimidating or harassing the witnesses who have deposed against him at the trial, (iii) not committing any offence while being on bail granted vide this order, (iv) abiding by the orders, if any, passed in a proceeding for maintenance initiated by the prosecutrix and her son against him by the Matrimonial Court and (v) appearing before this Court at the time of final hearing. JUDGE halwai