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Tushar Sambhaji Daund vs The State Of Maharashtra on 1 November, 2018

911-APPA-1685-2018.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.1685 OF 2018
IN
CRIMINAL APPEAL NO.1142 OF 2018

TUSHAR SAMBHAJI DAUND )…APPLICANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.V.V.Purwant I/b. Mr.A.A.Borhade, Advocate for the Applicant.

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

CORAM : A. M. BADAR, J.

DATE : 1st NOVEMBER 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 Sections 452 and 376 of the Indian

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Penal Code. He is sentenced to suffer rigorous imprisonment for 7

years and 10 years respectively, on each count, apart from

imposition of some amount of fine.

2 Heard the learned counsel appearing for the

applicant/accused. He argued that there is possibility of false

implication of the applicant/accused in the crime because of inter-

se disputes between the members of the family. He argued that

the victim of the crime in question has not suffered any injury

though she is claiming to have resisted the applicant/accused in

commission of the act. It is further argued that panch witnesses

are real brother and friend of the brother of the victim. Therefore,

the applicant/accused is entitled for bail.

3 The learned APP opposed the application by

contending that the evidence of the victim is corroborated by

seizure of torn T-Shirt of the applicant/accused, and therefore,

considering the nature of offence, the applicant/accused is not

entitled for bail.

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4 I have considered the rival submissions so advanced

and also perused the impugned judgment and order as well as

deposition of prosecution witnesses.

5 The applicant/accused is step brother-in-law of the

prosecutrix/PW1. She alleged that he was casting an evil eye on

her since long, and therefore, she along with her husband and

child started residing separately. Subsequently, taking advantage

of absence of family members, the applicant/accused committed

rape on her by entering in her house. She resisted him and in that

process T-Shirt of the applicant/accused was torn.

6 Cross-examination of the prosecutrix/PW1 goes to

show that she and the applicant/accused were residing in the

vicinity in the houses owned by father of the applicant/accused. It

is also seen that father-in-law of the prosecutrix/PW1, i.e. father

of the applicant/accused, was having some agricultural land and it

was cultivated by the applicant/accused alone. It is also seen

from cross-examination of the prosecutrix/PW1 that recently

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quarrel took place between the applicant/accused on one side and

she as well as her family members on the other side over the issue

of fetching water from the well. On this backdrop, it is seen from

her cross-examination itself that though she offered resistance to

the applicant/accused and though her bangles were broken, she

had not sustained any injuries to her person. Medical evidence is

against the prosecution. Panch witness to the Spot panchnama is

real brother of the prosecutrix/PW1 as seen from the admission

given by her in paragraph 12 of her cross-examination.

7 Though, normally, evidence of the victim of sexual

offence is not required to be corroborated by other evidence, in

the case in hand, allegations of rape are made on the step brother-

in-law, in the wake of the fact that the entire agricultural land of

the joint family was being cultivated by the said step brother-in-

law and there was dispute between the family members. Except

the version of the prosecutrix/PW1 and circumstantial evidence in

the nature of Spot panchnama, to which real brother of the

prosecutrix/PW1 was a panch witness, prima facie there appears

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to be no evidence for corroborating the version of the

prosecutrix/PW1.

8 In this view of the matter, the applicant/accused

deserves to be released on bail. As such, the 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 repeat commission of

similar offence in future.

iv) The applicant/accused should not contact the

prosecutrix/PW1 and her relatives in any manner.

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v) The applicant/accused shall not extend any threat or

promise to prosecutrix/PW1 or her relatives in any manner.

vi) Initially for a period of six weeks, at the request of the

learned counsel for the applicant/accused, he be released on

bail on depositing cash security of Rs.15,000/- before the

learned trial court.

v) The application is disposed off.

(A. M. BADAR, J.)

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