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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