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Rakesh Brijal Tiwari vs The State (Union Territory Of … on 27 September, 2018

28-APPA-1508-2018.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.1508 OF 2018
IN
CRIMINAL APPEAL NO.1161 OF 2018

RAKESH BRIJLAL TIWARI )…APPLICANT

V/s.

THE STATE (UNION TERRITORY OF )
DADRA AND NAGAR HAVELI) SILVASSA )
AND ANOTHER )…RESPONDENTS

Mr.Girish Agrawal, Advocate for the Applicant.

Mr.H.J.Dedhia, Special Public Prosecutor, for Respondent No.1.

Mrs.M.R.Tidke, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 27th SEPTEMBER 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. The applicant/accused is convicted of

offences punishable under Section 342 and 376 of the Indian

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Penal Code by the learned trial court. On first count, he is

sentenced to suffer rigorous imprisonment for 1 year and on

another count, he is sentenced to suffer rigorous imprisonment for

7 years. Some fine is also imposed on the applicant/accused, so

also default sentence.

2 Heard the learned counsel appearing for the

applicant/accused. He argued that during pendency of the trial,

the applicant/accused was on bail and he has not misused his

liberty. It is further argued that though corroboration is not

necessary for convicting the accused in the case of sexual offence

but that can be done only when evidence of the prosecutrix is

reliable and trustworthy. According to the learned counsel

appearing for the applicant/accused, in the case in hand, version

of the prosecutrix is not at all reliable. The defence has

probabalised its version that over issue of hand-loan and its

refund, there was quarrel between the parties in which the

applicant/accused had assaulted the husband of the prosecutrix

and he was hospitalized. The crime in question was thereafter

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registered in order to take revenge. Moreover, even though it is

alleged that husband of the prosecutrix was assaulted by the

applicant/accused, no charge to that effect was leveled against the

applicant/accused. It is further argued that forensic evidence is

not supporting the case of the prosecution nor any independent

witness is examined by the prosecution despite the fact that

available evidence was discrepant.

3 The learned APP opposed the application by

contending that the crime in question is serious and it is held to be

proved after due trial.

4 I have carefully considered the submissions so

advanced and perused the copies of deposition of prosecution

witnesses as well as the impugned judgment and order of

conviction and the resultant sentence.

5 The case in hand is a case of rape on a married woman

in the washroom of the factory premises. The victim of the crime

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in question is examined as PW3. In her chief-examination she

deposed that after her duty was over at about 5.00 p.m., she went

to use the washroom and at that time, the applicant/accused

entered in the washroom, laid her down on gunny bags, removed

her undergarments and committed forcible sexual intercourse

with her. The prosecutrix further stated that the

applicant/accused ejaculated semen.

6 Cross-examination of the prosecutrix shows that apart

from her, other employees were also working in that factory

premises situated in one block of the building. Other companies,

as per her version, are situated in adjoining blocks. In chief-

examination itself she stated that when she was screaming at that

time one lady employee had observed her. It is brought on record

from cross-examination of the alleged victim of the crime that she

was in her menses at the time of the incident in question. She

further admitted in her cross-examination that the accused did not

perform sexual intercourse with her till he discharged semen.

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7 This material elicited from the victim of the crime in

her cross-examination prima facie does not reflect penetration.

Though in sexual offences there is no requirement of positive

forensic evidence, the prosecutrix was specific about ejaculation of

semen. Clothes of the prosecutrix as well as the applicant/

accused were seized. No semen was detected on clothes of the

prosecutrix as well as in her vaginal swap.

8 Though the prosecutrix was in her menses, no stains of

blood were detected on clothes of the applicant/accused. As per

version of the prosecutrix, she was laid on the gunny bags and

after denuding her, the applicant/accused committed forcible

sexual intercourse with her. Those gunny bags were also seized

by the Investigator and were subject to chemical analysis. No

stains of blood were detected on those gunny bags.

9 Evidence of PW4 Nandlal Singh – husband of the

prosecutrix goes to show that the incident was informed to the

police because he was hospitalized because of injuries suffered by

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him. It is version of the defence that the applicant/accused had

taken hand-loan from PW4 Nandlal Singh and despite return of

that hand-loan, PW4 Nandlal Singh was demanding some more

amount which has occasioned the quarrel between them and the

resultant assault. Though it is case of the prosecution that the

assault on PW4 Nandlal Singh took place because he went to

question the applicant/accused about the act of committing rape

on his wife, strangely enough the applicant/accused was not

charged for assaulting PW4 Nandlal Singh. The lady, who

allegedly had seen the victim of the crime in question, was also

not examined by the prosecution.

10 During pendency of trial, the applicant/accused was

on bail.

11 Considering the nature of evidence available against

the applicant/accused and the fact that he was on bail during

pendency of the trial, the applicant/accused deserves to be

released on bail during pendency of his appeal. Therefore, the

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order :

ORDER

i) The application is allowed.

ii) Substantive sentence of imprisonment imposed on the

applicant/accused is suspended and the applicant/accused is

directed to be released on bail on his executing P.R.Bond in

the sum of Rs.15,000/- and on furnishing surety in like

amount.

iii) The applicant/accused should not contact the prosecutrix or

her relatives as well as the prosecution witnesses examined

by the prosecution in any manner during pendency of the

appeal.

v) The application is disposed of.

(A. M. BADAR, J.)

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