1 APPA 498.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION CRIMINAL BAIL APPLICATION NO. 498 OF 2011 IN CRIMINAL APPEAL NO. 297 OF 2011 Shiney Suraj Ahuja. ... Applicant. V/s. The State of Maharashtra. ... Respondent. Mr. Shirish Gupte, Sr. Counsel with Shrikant Shivade i/b. M.S. Mohite for the Applicant. Mr. J.P. Kharge, APP for the State. CORAM : A.R. JOSHI, J. DATED : 27th APRIL 2011. P.C. :- Heard rival submissions for some time on this application for bail preferred by the Applicant convicted accused. Perused the documents annexed to the present application and also annexed to the Appeal memo. Appeal was already admitted by this Bench on 19th April 2011 and bail application was kept pending for the final hearing and the same is being disposed of by this order. 2 APPA 498.11.sxw 2. Main contention raised by the learned Senior Counsel for the Applicant that during the entire trial, throughout the present Applicant was on bail and a detailed order granting bail during the pendency of the trial was granted by this Court another Bench (A.P. Deshpande, J.). It is further submitted that the evidence of the Prosecutrix itself is in no way supporting the case of the commission of offence of the actual rape inasmuch as she has deposed nothing about any incident occurred on 14th June 2009. It is further submitted that the conviction is solely based on the results of D.N.A. testing regarding various biological samples of the Prosecutrix and also the present Applicant – accused. It is also submitted that the Applicant was convicted though for the commission of offence of rape punishable under Section 376 of I.P.C., there is no material brought as to actual intercourse and for that matter the forcible intercourse committed by the Applicant on the Prosecutrix. This is more so in view of the substantive evidence of PW-1, the Prosecutrix coupled with the medical evidence which is already discussed in the Judgment and Order which is challenged in the present Appeal. In short, it is submitted that in this matter as the Applicant was throughout 3 APPA 498.11.sxw on bail during the pendency of trial and he had not flouted any of the conditions and though there is a conviction of the offence under Section 376 of I.P.C., there is no need for the Applicant being detained in custody as the Appeal may take reasonably long time for final hearing and disposal. 3. As against the above arguments, learned APP for the State strongly opposed the application mainly contending that though the Prosecutrix had not supported the case of prosecution as to the factum of the forcible sexual intercourse, the Judgment and Order is based on the D.N.A. findings and scientific examinations. It is further submitted that considering the said evidence still in the light of the hostility shown by the Prosecutrix goes to show that the present Applicant had committed the offence and as such is not entitled for bail during the pendency of the Appeal. 4. Considering the rival submissions and mainly considering the evidence by way of the Officers from Forensic Science Laboratory and mainly considering that the conviction is apparently based on D.N.A. test examinations and results thereof and still considering that the evidence of the Medical 4 APPA 498.11.sxw witnesses who had attended the Prosecutrix immediately on the alleged act of rape, in the opinion of this Court, it is not a case in which the present Applicant is required to be detained in Jail during the pendency of the Appeal mainly considering the substantive evidence of the Prosecutrix PW-1. 5. One parameter is also required to be seen as to whether to grant or not the bail to the accused person during the pendency of the Appeal is whether there is any possibility of said Appellant available or not available for the hearing and final disposal of the Appeal. On this aspect it is submitted on behalf of the Applicant that throughout during the trial he was available and has not flouted any of the conditions of bail and as such, during the pendency of the Appeal also the present Applicant can be made available as and when required. 6. It is further submitted that any reasonable restrictions may be imposed on him so as to secure his presence as and when needed. 7. Considering above, the present Application is allowed with following order :- 5 APPA 498.11.sxw (i) The Applicant shall be released on same bail with fresh bonds to be executed before the Sessions Court, Mumbai on the condition that he shall not leave India without the permission of this Court. (ii) R & P be sent to the Trial Court for compliance of the order. (A.R. JOSHI, J.)