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Mukesh Vijay Mishra vs The State Of Maharashtra on 8 October, 2018

(29)APPANo.15012018

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.1501 OF 2018
IN
CRIMINAL APPEAL NO.1092 OF 2018

Mukesh Vijay Mishra … Applicant
V/s.
The State of Maharashtra … Respondent

…..

Mr.Subhash Jha with Mr.Hare Krishna Mishra with Ms.Sanjana
Pardeshi with Ms.Ankita Pawar i/b. Law Global Advocates,
Advocate for the Applicant.

Mr.S.V.Gavand , APP for the Respondent/State.

….

CORAM : A.M.BADAR J.

DATED : 8th OCTOBER 2018.

P.C. :
1 This is an application for suspension of sentence and
releasing the applicant/accused on bail during pendency of the
appeal filed by him.

2 He is convicted for the offences punishable under
Sections 376 and 506 of the Indian Penal Code. On first count, he
is sentenced to suffer rigorous imprisonment for seven years and

Gaikwad RD 1/6
(29)APPANo.15012018

on the second count, he is sentenced to suffer rigorous
imprisonment for two years. Some fine is also imposed on the
applicant/accused so also the default sentence.

3 Heard the learned Counsel appearing for the
applicant/accused. He drew my attention to the evidence of the
prosecutrix so also documentary evidence placed on record by the
prosecution and argued that the entire case set up against the
applicant/accused is inherently improbable. The leaned Counsel
further argued that there is delay of 52 days in lodging the FIR
when the prosecutrix had tons of opportunity to approach the
police for redressal of her grievance, if any. In fact, she had
availed that opportunity on 6th June 2013 also, however, on that
occasion, she has not whispered about the incident allegedly took
place on 02/12/2012. The husband of the prosecutrix, as stated
by her, is working as the Film Director so also the Journalist and
he is in film line for last fifteen years. In this backdrop, it cannot
be said that even the prosecution has succeeded in establishing its
case beyond all reasonable doubts. The applicant/accused was on
bail throughout the trial and he has not misused his liberty.

4 The learned Additional Public Prosecutor opposed the
application by contending that in case of sexual offence, version of
the prosecutrix even if remains uncorroborated can be accepted to
record conviction and the prosecutrix, in the instant case, appears

Gaikwad RD 2/6
(29)APPANo.15012018

to be a witness of truth. The delay is attributable to the fact that
she was apprehending damage to her career as the applicant was
working as the Executive Producer. The learned Additional Public
Prosecutor therefore, prayed for rejection of the application.

5 I have carefully considered the rival submissions and
also perused the material placed on record including copies of
deposition of prosecution witnesses so also the documentary
evidence.

6 The incident allegedly took place at Catharses Studio
which is situated at Vihar Lake in Mumbai at abut 8.30 a.m. of
02/12/2012. The prosecutrix was working as an actor in serial
named ‘Veera’ of which the applicant was the Executive Producer.
She claimed that the applicant had called her at Jogeshwari local
railway station on the pretext that the bus taking the artist to the
studio is coming to the station. However, the applicant came there
on the motorcycle and forcibly took her to the studio near Vihar
lake, where he committed rape on her in Room No.2. She,
however, did not disclose the incident because of fear of
defamation, threats extended by the applicant/accused, so also
damage to her career.

7 Evidence on record do indicates that the
prosecutrix/P.W.No.1 was present at the studio where the incident

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(29)APPANo.15012018

allegedly took place up to 6.00 p.m. of 02/12/2012. She has not
disclosed the incident to anybody throughout the day. The
prosecutrix claimed to have disclosed some facts to her husband
on 06/12/2012 and then along with her husband she has
disclosed those facts to Producer named Yash Patnaik. The
prosecutrix claimed that because of this disclosure, services of the
applicant/accused came to be terminated. Thus, virtually, there
was nothing which could have prevented the prosecutrix/
P.W.No.1 to lodge the FIR after 06/12/2012. This did not happen.

8 Call detail records shows that from 01/12/2012 to
03/12/2012, the prosecutrix made about 42 calls on the cellphone
of the applicant/accused.

9 As admitted by the prosecutrix, her husband is working
as the Film Director as well as the Journalist and he was in the
film line for fifteen years. The prosecutrix is also an educated
lady. Her cross-examination shows that her shift used to end at
about 12.00 to 12.30 at midnight and by hiring an auto rickshaw,
she usually go to her house all alone without even calling her
husband to her workplace. All these material is relevant in order
to determine whether the prosecutrix was under the spell of threat
of the applicant/accused.

10 The prosecutrix did approach the Police Station on

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(29)APPANo.15012018

06/01/2013 and her report was considered as the report of non-
cognizable case. That report was in respect of the indent allegedly
took place on 05/01/2013. The averments in that N.C. Report
were to the effect that the applicant/accused used to insist her to
make friendship with him and to meet him at the hotel. This
report of N.C. Case lodged after one month does not contain a
whisper of alleged incident dated 02/12/2012. The FIR was
lodged on 23/01/2013 wherein the prosecutrix claimed that the
applicant had committed rape on her at about 8.30 a.m. on
02/12/2012. Her cross-examination reveals that at the time of the
said incident, by left hand the applicant has closed her mouth, by
right hand he had removed clothes and by his knees he had
pressed both hands of the prosecutrix. After completing the entire
act, the prosecutrix claimed that the applicant/accused had
removed his hand from her mouth. The probability of such act
will have to be considered at the time of final hearing of the
matter.

11 Needless to state that considering this nature of
evidence available against the applicant/accused so also the fact
that he was on bail during pendency of the trial, the
applicant/accused deserves to be released on bail. As such, the
Order :
ORDER

(i) The application is allowed.

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(29)APPANo.15012018

(ii) The substantive sentence of imprisonment imposed on
the applicant/accused is suspended and he is directed to
be released on bail on his executing P. R. Bond of
Rs.15,000/- and on furnishing surety in the like amount.

(iii) As a condition of this order, the applicant/accused
should not contact the victim or her relatives in any
manner and he should not repeat commission of similar
offence.

(iv) The application is disposed of accordingly.

(A.M.BADAR J.)

Raju
Dattatraya
Gaikwad
Digitally signed by
Raju Dattatraya
Gaikwad
Date: 2018.10.08
18:32:00 +0530

Gaikwad RD 6/6

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