1 crap1337.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1337 OF 2011 IN CRIMINAL APPEAL NO. 153 OF 2011 Mohan s/o Dattatraya Jadhav ...Applicant (original accused no.1) VERSUS The State of Maharashtra ...Respondent ..... Shri S.S.Jadhav, advocate for applicant Smt. Y.M.Kshirsagar, A.P.P. for respondent/State. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 21 st April, 2011 PER COURT : 1 Issue notice to the respondent. Smt. Y.M.Kshirsagar, A.P.P. waives service of notice for respondent/State. 2 Heard learned counsel for the parties. 3 This is an application preferred by the applicant/appellant 2 crap1337.11 (original accused no.1), seeking bail, pending hearing and final disposal of Criminal Appeal No. 153 of 2011, suspending the substantive sentences inflicted upon him by the learned Additional Sessions Judge, Dhule, by the judgment and order, dated 25.2.2011, in Sessions Case No. 72 of 2010, thereby convicting him for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer R.I. for 7 years and to pay fine of Rs.5,000/-, in default of payment of fine to suffer further R.I. for 6 months; and also convicting him for the offence punishable under Section 366 of the Indian Penal Code and sentencing him to suffer R.I. for 3 years and to pay fine of Rs.2,000/-, in default of payment of fine to suffer further R.I. for 3 months; and also convicting him for the offence punishable under Section 506 of the Indian Penal Code and sentencing him to suffer R.I. for 1 year and to pay fine of Rs.1,000/-, in default of payment of fine to suffer further R.I. for 1 month; as well as convicting him for the offence punishable under Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentencing him to suffer R.I. for 6 months and to pay fine of Rs.500/-, in default of payment of fine to suffer further R.I. for 15 days; further directing that all the afore said substantive sentences to run concurrently. 4 Learned counsel for the applicant made submission that 3 crap1337.11 the theory advanced by the prosecution has not been substantiated by the prosecution witnesses and there are omissions and contradictions and deformities in the testimonies of the prosecution witnesses. It is also canvassed that the prosecution put forth four stories in respect of the alleged incident, which are contradictory to each other. It is further canvassed that the alleged incident of rape occurred on 13.1.2010 and 31.1.2010 and on both the occasions the victim, namely Rita accompanied with the applicant on the motor cycle as well as Maruti Omni respectively, but it is curious to note that she did not raise any shouts, and therefore, it is canvassed that victim Rita accompanied with the applicant willingly. It is also canvassed that the medical evidence discloses that victim Rita was habitual to intercourse. Hence, learned counsel for the applicant submitted that the evidence of prosecution is tainted and it is unsafe to base conviction against the applicant on the basis of such evidence. 5 Moreover, learned counsel for applicant submitted that the appeal filed by the appellant challenging the convictions and sentences inflicted upon him cannot be taken up for final hearing in near future. Moreover, the substantive sentences inflicted upon the applicant are of short term sentence and in that context relied upon the judicial pronouncement of Kirankumar vs State of M.P., reported at 4 crap1337.11 2001 AIR SCW 5130, and accordingly, urged that the applicant deserves to be enlarged on bail during the pendency of Criminal Appeal. Learned counsel for the applicant, on instructions, submits that the applicant shall deposit the fine amount within the period of one week. 6 Learned Additional Public Prosecutor opposed the present application and countered the arguments advanced by the learned counsel for the applicant and submitted that the prosecution has examined in as much as 10 witnesses to substantiate the charges levelled against the applicant. It is also canvassed that the medical evidence and the evidence of Forensic Laboratory, coupled with the evidence of victim Rita, connects the applicant with the alleged crime. Accordingly, learned A.P.P. submitted that the Trial Court considered the oral and documentary evidence as well as the medical evidence on record in proper perspective and convicted and sentenced the applicant rightly and the learned A.P.P. supported the impugned judgment and order and submitted that the applicant does not deserve to be enlarged on bail and submitted that the present application bears no substance and same is devoid of any merits, and therefore, same deserves to be rejected. 7 I have perused the record and proceeding, as well as the 5 crap1337.11 impugned judgment and order, dated 25.2.2011 with the assistance of learned counsel for the parties and also heard the submissions advanced by the learned counsel for the parties anxiously. 8 Admittedly, the applicant has questioned the afore said convictions and sentences inflicting upon him by filing Criminal Appeal No. 153 of 2011 before this court. I have admitted the said appeal by passing separate order therein on 1.4.2011. Moreover, there is no likelihood that the said appeal would be taken up for final hearing in near future. 9 It is evident 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 can be construed as short term sentences, relying upon the judicial pronouncement in the case of Kirankumar (supra) are short term sentences. Moreover, learned counsel for the applicant undertook to deposit the fine amount within one week. Hence, having the comprehensive view of the matter, present application deserves to be allowed and the applicant is required to be enlarged on bail during the pendency of present Criminal Appeal, subject to deposit of fine amount within one week. 6 crap1337.11 10 In the result, present application is allowed and it is directed that the applicant Mohan Dattatraya Jadhav be released on bail, pending hearing and final disposal of Criminal Appeal No. 153 of 2011, suspending the substantive sentences inflicted upon him, on the same terms and conditions, on which he was enlarged on bail by the Trial Court, but on execution of fresh bond, on the conditions that the applicant shall not enter into the village where the prosecutrix resides i.e. village Sisa, Taluka Dhadgaon, District Nandurbar and shall not influence upon the witnesses and tamper with the evidence in any manner whatsoever, till the disposal of Criminal Appeal, subject to payment of fine amount, within the period of one week before the Trial Court. It is made clear that the release order shall be issued after payment of fine amount and the present application stands disposed of accordingly. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1337.11