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P.H. Jayani 01 IA1335.2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1335 OF 2019
IN
CRIMINAL APPEAL NO. 310 OF 2019
Manoj Suresh Jadhav …. Applicant
v/s.
The State of Maharashtra and anr. …. Respondents
Mr. Satyavrat Joshi i/b. Mr. Nitesh Mohite for the Applicant.
Mr. S.V. Gavand, APP for the State.
Dr. N.V.B. Pawaskar i/b. Mr. Vijaykumar B. Dighe for R.No.2.
CORAM: SMT. ANUJA PRABHUDESSAI, J.
DATED : 13th JULY, 2021.
P. C. :-
. This is an Application under Section 389 of the Code of Cr.P.C. for
suspension of substantive sentence imposed by judgment dated
10/01/2019 passed by learned Additional Sessions Judge, Pune in
Special SC No.299/2016.
2. The Applicant and the other co-accused have been convicted for
offences punishable under Section 376 r/w. 107 of Indian Penal Code
(IPC) 376 (D) 506 (II) r/w. 34 of IPC Section 12 of Protection of
Children from Sexual Offences (POCSO) Act, 2012 and sentenced as
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under :-
(i) for the offence punishable under Section 376 r/w. 107 of
the IPC to suffer rigorous imprisonment for seven years and to
pay fine of Rs.1,000/- in default to undergo simple
imprisonment of one month.
(ii) for the offence punishable under Sections 376(D) r/w. 107
of the IPC to suffer rigorous imprisonment for twenty years and
to pay fine of Rs.2,000/- in default to undergo simple
imprisonment for two months.
(iii) for the offence punishable under Sections 506(II) r/w. 34 of
the IPC to suffer rigorous imprisonment for one year and to pay
fine of Rs.500/- in default to undergo simple imprisonment for
fifteen days.
(iv) for offence punishable under Section 11(i) and Section 12
of POCSO Act, 2012 to suffer rigorous imprisonment for two
years and to pay a fine of Rs.500/- in default to undergo simple
imprisonment for fifteen days.
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(v) All the aforesaid substantive sentences were directed to run
concurrently.
3. Mr. Satyavrat Joshi, learned counsel for the Applicant states that
the victim had narrated the incident to her mother after considerable
delay. Furthermore, she had not disclosed the incident of rape. Hence,
the FIR lodged on 31/05/2016 was for offenses under Sections 506
r/w. 34 of IPC Section 12 17 of POCSO Act. He submits that the
allegations of rape were made as afterthought in view of strained
relationship with accused no.2, the maternal aunt of the victim who
had lodged complaint for offence punishable under Section 498A
against her husband i.e., the brother of the complainant and his family
members. He submits that there are several omissions, contradictions
and discrepancies in the evidence of the prosecutrix which have been
detailed in the order dated 04/12/2020 of this Court (Coram : Prakash
D. Naik, J.) while allowing the Criminal Application No.441/2019 and
enlarging the co-accused on bail. He submits that the other co-accused
has also been released on bail by order dated 08/04/2021 of this Court
(Coram : Revati Mohite Dere, J.) in Criminal Application No.470/2019.
He therefore urges that the Applicant is entitled for bail on the ground
of parity.
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4. Mr. Gavand, learned APP and Mr. Pawaskar, learned counsel for
Respondent No.2 have vehemently opposed the Application. They
contend that the Applicant is the main accused involved in committing
rape. They contend that the role attributed to the Applicant is not
similar to that of the co-accused and hence, the Applicant is not
entitled for bail on the ground of parity. They contend that the victim
was a minor and the gravity of the offence would not justify grant of
bail.
5. I have perused the records and considered the submissions
advanced by the learned counsels for the respective parties.
6. The victim had been to the house of her grand parents at
Mundwa, Pune on 13/04/2016. She returned to Buldhana, her
paternal home on 26/05/2016. She narrated to her mother
(complainant) several incidents wherein she had seen her maternal
aunt (accused no.2) having physical relationship with accused no.3.
The victim had also informed that accused no.2 had threatened her and
told her to keep physical relationship with accused no.1. Based on the
said information, the mother of the victim lodged the FIR on
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29/05/2016 based on which crime was registered against the Applicant
and the other accused for offenses punishable under Sections 506 of
IPC and Sections 12 17 of POCSO Act. The FIR does not make any
reference to the incident of rape. The victim, whose statement was
recorded on 01/06/2016 also did not attribute any such role to accused
no.1. The allegations of rape were made for the first time in the
supplementary statement recorded on 09/06/2016, though she and her
mother were in constant touch with the police till 04/06/2016.
7. In the supplementary statement, it is alleged that on 14/05/2016,
the accused no.2 who is the maternal aunt of the victim had taken her
to the flat belonging to her grand father. The accused no.2 pushed her
on the floor. Accused no.4 caught her legs, accused no.3 caught her
hands while the Applicant (Accused No.1) had sexual relationship with
her against her wish and without her consent. It is pertinent to note
that the accused no.2 who was allegedly instrumental in taking the
victim to the flat and was involved in catching her legs and one of the
co-accused who had caught hold of her hands while the accused no.1
was committing rape, have been released on bail. This Court (Coram :
Prakash D. Naik., J.) while enlarging the co-accused on bail has in
detail considered the evidence of the prosecutrix and her
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mother/complainant and has discussed the infirmities in their
evidence. Though it is argued that the Applicant was the main accused
who had committed rape, the conviction against the Applicant
(Accused No.1) and the other co-accused is for committing offense
under Section 376 r/w. 107 and 376(D) r/w. of the IPC. The Applicant
is not convicted independently for an offense under Section 376 of IPC.
The accused who had aided the Applicant have already been released
on bail. Having regard to the material omissions, contradictions and
discrepancies in the evidence, the Applicant is also entitled for bail. It
is also to be noted that the Applicant was on bail during the pendency
of the trial and he has not misused the liberty granted to him. Appeal
has been admitted and considering the fact that final disposal of the
Appeal is likely to take time, in my considered view, this is a fit case for
suspension of sentence pending hearing of the Appeal and enlarge the
Applicant on bail.
8. Hence, the Interim Application is allowed on following terms and
conditions :-
(a) The Applicant is ordered to be released on bail on furnishing bail
bonds of Rs.25,000/- (Rupees Twenty Five Thousand) with one or two
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sureties in the like amount to the satisfaction of the Trial Court ;
(b) The Applicant shall report to the Trial Court, once in two months
on the day/date specified by the Trial Court, till the Appeal is finally
disposed of ;
(c) The Applicant shall not contact the victim, her family members,
complainant, witnesses or any person concerned with the case ;
(d) The Applicant shall keep the Trial Court informed of his current
address and mobile contact numbers and/or change of residence or
mobile details, if any, from time to time ;
(e) If there are two consecutive defaults in appearing before the Trial
Court, the learned Judge shall make a report to the High Court and the
prosecution would be at liberty to file an application seeking
cancellation of bail.
9. The Interim Application stands disposed of in above terms.
Digitally
signed by
(SMT. ANUJA PRABHUDESSAI, J.)
PREETI PREETI
JAYANI
H Date:
JAYANI 2021.07.14
17:07:51
+0530
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