1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.253/2009 IN CRIMINAL APPEAL NO.208/2009 Rajendra Mayaji Mhatre Applicant Vs. The State of Maharashtra Respondent Mr.Rahul Anote for the applicant Mr.A.S.Shitole ,APP for the State Ms.Sharmila Kaushik for the original complainant Coram: Mrs.Mridula Bhatkar,J. Date : 6th April,2009. P.C. . This application is filed by the applicant/accused for suspension of sentence pending the appeal and for the bail . The applicant is convicted for the offences punishable u/s 376 and 506 of the Indian Penal Code by the judgment and order dated 16/2/2009 passed by the Sessions Judge of Greater Mumbai. 2] The application is opposed by the learned counsel for the original complainant (prosecutrix) and also by the State. Both of them 2 argued that the evidence of the prosecutrix and the father of the prosecutrix is to be considered and the conviction is based on the cogent evidence of these two witnesses. 3] The learned counsel for the original complainant has relied upon the ruling of the Hon.Apex Court in (State of Maharashtra Vs.Madhukar Wamanrao Smarth ) reported in (2008)5 Supreme Court Cases,721. 4] Heard submissions of the learned counsel appearing for both the sides. In the case of (State of Maharashtra Vs.Madhukar Wamanrao Smarth ) reported in (2008)5 Supreme Court Cases,721 Hon'ble Apex Court has held that the accused was on bail during the trial is certainly not a relevant factor ,but the gravity of the offence,sentence imposed and several other similar factors need to be considered by the Court. In the said matter the trial Court had directed that the sentences to run consecutively in the case of cheating and forgery . In the said case large scale of manipulation of record resulting in the manipulation of the results of the candidates has taken place and apart from the said case other many cases were pending against them. 5] On the background of the facts and the ratio of the case of (State of Maharashtra Vs.Madhukar Wamanrao Smarth ) 3 reported in (2008)5 Supreme Court Cases,721 (supra) the facts of the case in hand and the quality of the evidence,circumstances and the judgment are to be considered. The accused in the present case was taking tuition of the prosecutrix for more than one and half years prior to the incident and no any untoward incident had taken place. In the evidence the prosecutrix has stated that she used to complain her mother about some incidents of accused touching her body on number of times. However,her mother did not take any concrete steps and ignored her. Her father being a sailor used to be on the ship.The evidence of the mother is not tendered by the prosecution .So the prosecution case stands on the evidence of the father and the prosecutrix. This appears strange circumstance.The incident of rape has taken place on 5/11/2004 and also on some occasions prior to that. However,the prosecutrix disclosed about it only to her father when he returned from the ship on 7/12/2004. At the stage of bail application the judgment of the trial court could not be scrutinised more.However, the fact that on 9/12/2004 the father,mother and the prosecutrix alongwith the accused had been to the police station and they said that there were sexual advances between the prosecutrix and the accused at the residence of the prosecutrix. However,they said that they had no complaint against the accused. This should have been considered in proper perspective. 6] I place reliance on the ruling (Kiran Kumar Vs.State of M.P.),reported in (2001)9 Supreme Court Cases, 211 in which it is 4 held that : ''The normal rule is that when the appeal of a person convicted and sentenced is pending the sentence passed on him should be suspended unless any exceptional reason existing therein requires the denial of the same-There being no exceptional reason recorded in the impugned order,Supreme Court suspending the sentence and directing release of appellant on bail.'' 7] After considering all these factors I feel that denial of the bail pending the appeal to the accused may lead to gross injustice and, therefore,other factors that he does not have any criminal antecedents and he has completed M.Sc.in Chemistry and Mathematics so also he was on bail during the trial are also taken into account. 8] Considering all these circumstances it is a fit case to enlarge the accused on bail . Hence pending the appeal the sentence is suspended u/s 389 of Cr.P.C. . The accused be released on his furnishing bail in the sum of Rs.10,000/- with one or two sureties in the like amount. (Mrs.Mridula Bhatkar,J.) 5