1 crap1079.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1079 OF 2011 IN CRIMINAL APPEAL NO. 130 OF 2011 Sindhu w/o Devidas Kendre ...Applicant/appellant (Orig. accused no.3) VERSUS The State of Maharashtra ...Respondent ..... Shri A.M.Gaikwad, advocate for applicant/appellant Shri S.G.Nandedkar, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 1 st April, 2011 PER COURT : 1 Heard Shri A.M.Gaikwad, advocate for applicant/appellant (original accused no.3) and Shri S.G.Nandedkar, A.P.P. for respondent. 2 This is an application preferred by the applicant (original accused no.3), seeking bail, pending hearing and final disposal of Criminal Appeal No. 130 of 2011, suspending the substantive 2 crap1079.11 sentences inflicted upon her by the learned Ad hoc Additional Sessions Judge, Kandhar, by the judgment and order, dated 9.3.2011 in Special (Atro.) Case No. 37 of 2003 (New), Case No. 8 of 2002 (Old). 3 It appears that the applicant was convicted by the learned Ad hoc Additional Sessions Judge, Kandhar, in Special (Atro.) Case No. 37 of 2003 for the offence punishable under Section 376(2)(g) of the Indian Penal Code and sentenced to suffer R.I. for ten years and to pay fine of Rs.10,000/- in default of payment of fine further to suffer R.I. for one month; and was also convicted for the offence punishable under Section 306 of the Indian Penal Code and sentenced to suffer R.I. for ten years and to pay fine of Rs.5,000/- in default of payment of fine further to suffer R.I. For 15 days, and the afore said substantive sentences were directed to run concurrently, by way of judgment and order dated 9.3.2011. The applicant has challenged the said conviction and sentences inflicted upon her by the afore said judgment and order dated 9.3.2011 in Criminal Appeal No. 130 of 2011 and the said appeal has been admitted by this court by order dated 18.3.2011 and same is pending. 4 At the out set, the learned counsel for the applicant canvassed that the prosecution case is based upon the 3 crap1079.11 circumstantial evidence and there is no direct evidence to connect the accused persons to the alleged crime, although the prosecution examined in as much as 17 witnesses to substantiate the charges levelled against the accused persons including the applicant herein. Learned counsel for the applicant also argued that the applicant, who is original accused no.3, is a woman and she cannot be convicted for the offence punishable under Section 376(2)(g) of the Indian Penal Code and relied upon the observations made by Hon’ble Supreme Court in the case of State of Rajasthan vs Hemraj and another, reported at 2009 AIR (SCW) 4068, which are as follows :- “ A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to “gang rape”. The language of sub-section (2)(g) provides that “whoever commits ‘gang rape’” shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention 4 crap1079.11 to rape a woman, each persons of the group shall be deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. “Common intention” is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. “Common intention” denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression “in furtherance of their common intention” as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g). “ 5 Moreover, learned counsel for the applicant submitted that, in fact, initially charge sheet was filed against accused no.1, namely Vasant Dnyanoba Darade by the prosecution and at that time report under Section 169 of the Code of Criminal Procedure was filed 5 crap1079.11 against the applicant, but accused no. 2-Chandrakant and accused no.3-Sindhu i.e. applicant herein were added subsequently at the instance of the Additional Public Prosecutor. It is also canvassed by the learned counsel for the applicant that the prosecution case was that there was love affair between accused no.1 Vasant and the victim, namely Anita and although initially the charge sheet was filed against said accused no.1-Vasant, he came to be acquitted by the learned Trial Judge by the impugned judgment; whereas accused no. 2 and accused no.3 i.e. present applicant came to be convicted and sentenced as afore said and submitted that the said conviction is erroneous. 6 As regards another conviction under Section 306 of the Indian Penal Code, learned counsel for the applicant submitted that no charge was framed against the applicant for the offence punishable under Section 306 of the Indian Penal Code, but she came to be convicted and sentenced thereunder without framing any charge against her in that respect. It is also canvassed by learned counsel for the applicant that only evidence against the applicant is that she gave message to victim Anita that she was called on the room of Puttewad Sir i.e. accused no.2, situated at Vivekanand Colony, Kandhar to obtain guessing of next paper, and accordingly, said victim Anita went to the room of accused no.2, namely 6 crap1079.11 Puttewad, who was serving as Assistant Teacher in the school of victim Anita, and not beyond that in the entire case of the prosecution. 7 According to learned counsel for the applicant, the medical evidence i.e. PW15 Dr. Waghmare and postmortem report do not substantiate the charge under Section 376(2)(g) of the Indian Penal Code, since postmortem report discloses that no injuries were seen on the body of the victim. In the said context, it is canvassed by the learned counsel for the applicant that there were no signs of violence and no external injuries were found on the body of victim Anita as per the said postmortem report, which create doubt in respect of the prosecution case. 8 Learned counsel for the applicant also argued that the applicant was on bail during trial and she has not misused the said liberty and she is 26 years age and is having three school going kids, to whom she has to look after. It is also canvassed that the applicant has deposited the fine amount before the Trial Court on 10.3.2011 itself. Accordingly, the learned counsel for the applicant urged that the applicant be enlarged on bail during the pendency of Criminal Appeal No. 130 of 2011. 7 crap1079.11 9 Learned Additional Public Prosecutor countered the said argument and opposed the said application vehemently and submitted that the applicant is the root cause of the occurrence of the incident, who gave message to victim Anita that she was called on the room of accused no.2 Puttewad Sir, situated in Vivekanand Colony, Kandhar town to obtain guessing of next paper, and accordingly, victim Anita went to accused no.2, who was serving as Assistant Teacher in the school of victim Anita, and fell pray to the further incident of gang rape, which culminated in committal of suicide by her, and therefore, the applicant does not deserve for grant of bail during the pendency of appeal. Accordingly, the learned Additional Public Prosecutor supported the impugned judgment and order dated 9.3.2011 and submitted that the learned Trial Judge has appreciated the evidence in proper perspective and rightly convicted and sentenced the applicant, and hence, the applicant is not entitled to be released on bail during the pendency of appeal and urged that present application be rejected. 10 I have perused the record and proceeding and the impugned judgment and order, dated 9.3.2011 rendered by the learned Ad hoc Additional Sessions Judge, Kandhar, in Special (Atro.) Case No. 37 of 2003, as well as considered the submissions advanced by the learned counsel for the parties anxiously and also 8 crap1079.11 perused the judicial pronouncement of Hon’ble Supreme Court cited by the learned counsel for the applicant carefully, and prima facie, I am inclined to accept the submissions advanced by learned counsel for the applicant for grant of bail, during the pendency of Criminal Appeal No. 130 of 2011, since, apparently, the applicant was on bail during trial and there is no grievance of the respondent that she has misused the said liberty. Moreover, apparently, reliance can be placed on the judicial pronouncement of Hon’ble Supreme Court (supra) and the observations made therein in respect of expression “in furtherance of their common intention” as appearing in Explanation to Section 376(2) of the Indian Penal Code, which relates to intention to commit rape, which cannot be attributed towards a woman. 11 Moreover, the applicant is a woman of 26 years old and she is having three kids, aged about 11 years, 9 years and 5 years, as mentioned in the present application and the submissions made by the learned counsel for the applicant that there is nobody to look after them cannot be over looked. 12 In the circumstances, having the comprehensive view of the matter, I am of the opinion that present the applicant deserves to be enlarged on bail, but by imposing the condition upon the 9 crap1079.11 applicant. 13 In the result, present application is allowed and it is directed that the applicant be released on bail in the sum of Rs. 15,000/- with one surety in the like amount, pending hearing and final disposal of Criminal Appeal No. 130 of 2011, suspending the substantive sentences inflicted upon the applicant by judgment and order, dated 9.3.2011 rendered by the learned Ad hoc Additional Sessions Judge, Kandhar, in Special (Atro.) Case No. 37 of 2003, on the condition that the applicant shall report to the incharge of Kandhar Police Station once in six months, till the disposal of appeal. 14 The above observations are prima facie and shall be restricted to this order only and shall not be used in any other matter while deciding it on merits. 15 The present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1079.11