1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.370 OF 2010 IN CRIMINAL APPEAL NO.175 OF 2010 Mohd Vakil Khan s/o Mohd Sagir Khan .. Applicant -versus The State of Maharashtra .. Respondents. WITH CRIMINAL APPLICATION NO.142 OF 2010 IN CRIMINAL APPEAL NO.65 OF 2010 Smt. Kismatunisa Mohd Sagir Khan .. Applicant -versus The State of Maharashtra .. Respondents. WITH CRIMINAL APPLICATION NO.209 OF 2010 IN CRIMINAL APPEAL NO.111 OF 2010 Mohd Shakeel Khan s/o Md Sagir Khan and Mohd Sagir Khan s/o Jama Khan Applicants -versus 2 The State of Maharashtra .. Respondents. Mr. H. H. Ponda, Senior Counsel i/b Shahid Azmi, for all the applicants. Mr. S.S. Shitole, APP for the respondents. CORAM: V. M. KANADE, J. DATED: 23rd March, 2010 P.C. 1. Heard learned counsel for the applicants. The accused No.3 is father in law and the accused No.4 is brother in law of complainant have committed offence punishable under section 376 of the Indian Penal Code. 2. The learned APP, for the State submitted that the applicants have been convicted for the offence punishable under section 376 of the Indian Penal Code. Accused No.3 Mohd Sagir Khan has been convicted for the offence punishable under section 376 of Indian Penal Code and the accused Nos 1 and 2 have been convicted for abetting the offence and they are sentenced to suffer RI For 7 years each and to pay fine of Rs.l0,000/- each in default 2 years R.i. Each. The accused No.4 Mohd Vakil Sagir Khan, is also convicted for the offence punishable under sectin 376 of the IPC and accused Nos l & 2 are convicted for abetting the offence and they are sentenced to suffer RI for 7 years each and to pay fine of 3 Rs.l0,000/- in default RI for 2 years. 3. The accused Nos l to 4 are convicted for the offence punishable under section 498(A) read with 34 of the IPC and sentenced to undergo RI for three years and to pay fine of Rs. 5,000/- each in default to suffer RI for one year. 4. A complaint was lodged by one Saira Banu on 24.9.2003 in which it was alleged that the accused had demanded dowry and had assaulted her and the accused Nos 3 and 4 had committed rape. On the basis of said complaint which was filed, the accused were arrested. 5. The mother in law Kismatunisa Mohd Sagir Khan, was granted anticipatory bail and was released on bail. Thereafter chargesheet was filed. The Sessions Court convicted the accused. Appeals have been filed by the accused against said order of conviction. Three separate appeals have been admitted by this Court. 6. In all these appeals, separate applications have been filed for bail by the accused. 7. Shri. Ponda, learned Senior Counsel, appearing on behalf of the applicant submitted that on l3th September, 2003 the prosecutrix Saira Bano had executed a divorce deed, it was brought on record and in the divorce deed she had stated the reason for giving divorce was that she was in love with Mohd Vakil, 4 the brother of her husband. It was submitted that in the complaint which was lodged on 24.3.2003 the fact that she had given divorce was suppressed. It was further submitted that initially the sister of the complainant got married to Mohd Shakeel. However, after marriage he learnt that she was already pregnant and their marriage was dissolved and thereafter the complainant was given in marriage to said Mohd Shakeel. It was then submitted that in the F. I. R which was filed on 24.9.2003, the fact which was narrated by the prosecutrix before the Court was not mentioned and only a bare allegation was made that she was raped by the father in law and the brother in law on two separate occasions. 8. He submitted that the said contradiction has been brought on record. He further submitted that the brother of the prosecutrix did not support the case of the prosecutrix and it was further pointed out that the brother of the prosecutrix in his statement merely stated that the prosecutrix had informed him that the father in law and the brother in law had an evil eye on her. 9. It was further submitted that the Trial Court had not taken into consideration all these aspects and therefore, the applicants were entitled to be released on bail. He submitted that all the accused were on bail during the trial. 10. I have perused the judgment and the statements of the witnesses which are annexed to the appeal memo. In my view, 5 there is some substance in the submission made by learned counsel, appearing on behalf of the applicants. It does appear that the prosecutrix has not referred to the divorce deed which was prior in point of time and in the supplementary statement and when she was cross examined she has admitted her signature, but has stated that the said divorce deed is forcibly signed by her in duress. Ordinarily in the complaint this fact ought to have been mentioned by the prosecutrix. Secondly there is no corroboration of the statement of the prosecutrix, her brother also does not support the prosecutrix on the point of rape and the payment of dowry. Taking into consideration the said evidence and the submissions made by the learned counsel for the applicant, in my view the applicants deserve to be released on the bail in the sum of Rs.5,000/- each with one or two sureties in the like amount. The applicants are the permanent residents of Mumbai. They shall report to the Police station as and when called. 11. The applications are accordingly disposed of. ( V.M. KANADE, J.)