State.Mr. R. S. Shinde and Mr v. P. Latange

Legal Reasoning

CriAppln-2800-2023-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 2800 OF 2023INCRIMINAL APPEAL NO. 683 OF 2023Ankush Popat WadaneAge 38 years, Occu- nil,R/o: Malumbra,Taluka Tuljapur, District Osmanabad.… AppellantVersus1.The State of MaharashtraThrough Police Station Murum Taluka Omerga,Taluka Omerga,District Osmanabar.2.XYZ… Respondents…..Mr. R. J. Nirmal, Advocate for the Applicant.Mr. Uma S. Bhosale, APP for Respondent No.1-State.Mr. R. S. Shinde and Mr. V. P. Latange, Advocate for RespondentNo.2...... CORAM :SMT. VIBHA KANKANWADI ANDABHAY S. WAGHWASE, JJ. DATED :18.12.2023 ORDER [ABHAY S. WAGHWASE, J.] : 1.By invoking Section 389 of the Code of Criminal Procedure[Cr.P.C.], prayers are raised for suspension of sentence and grant ofbail during pendency of appeal bearing Criminal Appeal No. 683 of2023. CriAppln-2800-2023-2- 2.Learned counsel for the applicant submits that there is falseimplication. There are allegations that victim was taken away whenshe had been to answer call of nature and was sexually abused.Initially, information was regarding said act committed by unknownperson. Therefore, learned counsel submits that there is doubtwhether there is proper identification. He tried to submit that merelybecause accused was also in the same vicinity and had been foranswering call of nature, he is mistaken to be the culprit and arrestedafter being caught by people. That, case has not been proved beyondreasonable doubt and entire case is based on circumstantial evidenceand scientific evidence. That, applicant has strong case in appeal, butas it would take long time, relief of suspension and grant of bail arepressed into service.3.Above relief is resisted by learned APP for State as well aslearned counsel representing victim on the ground that offence isserious and victim is a child and there is severe sexual assault which isconfirmed through medical experts. It is also brought to the noticethat instant crime is not the only crime committed by applicant andpreviously also similar offences have been committed by him and assuch he is habitual offender. For such reasons, prayers are sought tobe rejected. CriAppln-2800-2023-3- 4.Heard learned counsel for respective sides.5.We are now called upon to exercise powers under Section 389of Cr.P.C. for suspending the sentence inflicted by trial Judge alongwith prayer for grant of bail during pendency of appeal. Above sectionpermits suspension of sentence after conviction and even permitssetting convict at liberty. However, it is fairly settled that such powersare to be exercised only in exceptional cases and in rare circumstanceswhen it is palpably shown that there are fair chances of success inappeal and when appellate court is satisfied about existence ofapparent and gross error on the face of record. Obviously, at thisstage, there cannot be meticulous re-appreciation of the evidence butonly on prima facie consideration and satisfaction, if the court feelsthat conviction may not be sustained while rejudging the case, only insuch exceptional cases, sentence has to be suspended and bail can begranted to the prisoner till decision of the appeal by the appellatecourt. As to what are the exceptional cases and rare cases has notbeen defined or categorized but going by the precedents, certainfactors like gravity of offence, nature of crime, circumstances in whichoffence has taken place are a few considerations which are expectedto be borne in mind while exercising powers under Section 389 of CriAppln-2800-2023-4- Cr.P.C. There are catena of judgments on above point and a few couldbe named as Rama Narang v. Ramesh Narang and others (1995) 2SCC 513 ; Rajesh Rajan Yadav alias Pappu Yadav v. CBI (2007) 1 SCC70 and Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi)(2008) 5 SCC 230 wherein scope, object and purport of Section 389of Cr.P.C. has been distinctly and lucidly discussed.6.Very recently, the Hon’ble Apex Court in the case of OmprakashSahni v. Jai Shankar Chaudhary and another (2023) LiveLaw SC 389has elaborately dealt with the precedent on above provision and afterdealing with above referred cases and other cases namely, AshMohammad v. Shiv Raj Singh alias Lalla Babu and another (2012) 9SCC 446; Bhagwan Rama Shinde Gosai and Others v. State of Gujarat(1999) 4 SCC 421; Hasmat [(2004) 6 SCC 175]; Vijay Kumar v.Narendra and Others [(2002) 9 SCC 364]; Atul Tripathi v. State ofUttar Pradesh and Others (2014) 9 SCC 177; Kishori Lal v. Rupa andOthers (2004) 7 SCC 638; Ramji Prasad v. Rattan Kumar Jaiswal andAnother (2002) 9 SCC 366; Vasant Tukaram Pawar v. State ofMaharashtra (2005) 5 SCC 281 and Gomti v. Thakurdas and Others(2007) 11 SCC 160, culled out following propositions in para 33 ofthe judgment which is as under: CriAppln-2800-2023-5- “33.Bearing in mind the aforesaid principles of law, theendeavour on the part of the Court, therefore, should be tosee as to whether the case presented by the prosecutionand accepted by the Trial Court can be said to be a case inwhich, ultimately the convict stands for fair chances ofacquittal. If the answer to the above said question is to bein the affirmative, as a necessary corollary, we shall haveto say that, if ultimately the convict appears to be entitledto have an acquittal at the hands of this Court, he shouldnot be kept behind the bars for a pretty long time till theconclusion of the appeal, which usually take very long fordecision and disposal. However, while undertaking theexercise to ascertain whether the convict has fair chancesof acquittal, what is to be looked into is somethingpalpable. To put it in other words, something which is veryapparent or gross on the face of the record, on the basis ofwhich, the Court can arrive at a prima facie satisfactionthat the conviction may not be sustainable. The AppellateCourt should not reappreciate the evidence at the stage ofSection 389 of the CrPC and try to pick up few lacunas orloopholes here and there in the case of the prosecution.Such would not be a correct approach.”7.Therefore, the legal proposition that is settled is that though itis a discretionary power, it is expected to be exercised judiciously andin only such cases in which circumstances and reasons exist to grantsuch relief. Ultimately, it all depends on the facts and circumstances CriAppln-2800-2023-6- of each case and there is no straight jacket formula or absolute rulefor grant or refusal. However, in the case of Vijay Kumar (supra) aswell as Atul Tripathi (supra), it has been held that court shouldconsider factors like nature of accusation, manner in which the crimeis alleged to have been committed, gravity of offence, age, criminalantecedents of the convict, desirability of releasing the accused onbail by suspending the sentence etc. 8.After hearing both sides and on going through the paperscursorily, there seems to be charge for offences punishable underSections 363, 376-AB, 376-E, 377 of the Indian Penal Code [IPC],Sections 3(a)(b), 4(2), 5(i), 5(m), 5(t), 6, 14 of the Protection ofChildren from Sexual Offences Act, 2012 and Section 66E of theInformation Technology Act, 2000. It seems that victim in this casewas studying in 1st standard. When she had been to answer call ofnature on 30.08.2022, she was allegedly taken beside the field andsexually assaulted. Doctor, who medically examined as well as thetreating doctor both have confirmed sexual assault. When motherrealized that her daughter was missing, search seems to have beenundertaken. Witnesses, namely, Nanda, Hanmant and Yakub alsoaccompanied in the search and they have also been examined byprosecution. It is claimed that applicant was seen running by carrying CriAppln-2800-2023-7- his own clothes and was resultantly chased and caught hold of. PW2Nanda, PW3 Hanmant, PW4-mother of victim as well as PW5 victimherself have narrated about the occurrence. Medical experts, whoexamined and treated victim are also examined as PW11, PW17 andPW18. Even DNA examination seems to have been got done. Considering the gravity of the offence, the age of the victim, thecircumstances in which serious offence has been committed, we donot consider a case being made out to extent the relief sought beforeus. Hence, the application is rejected.[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]vre