Bombay High Court
Pramod L. Upadhya vs The State Of Maharashtra on 6 March, 2017
Bench: A.M. Badar
3-APPA-46-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.46 OF 2016
IN
CRIMINAL APPEAL NO.715 OF 2015
PRAMOD LAXMIKANT UPADHYA )...APPLICANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Ms.Apeksha Vora, Advocate for the Applicant.
Mr.A.R.Kapadnis, APP for the Respondent - State.
Mr.V.G.Bagade, Spl.P.P. for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 6th MARCH 2017.
ORAL ORDER :
1 This is an application for suspension of sentence and
release of applicant / accused on bail during pendency of the
appeal filed by him. The applicant / accused has been convicted
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of offences punishable under Sections 376 and 392 of the IPC. He
has been sentenced to suffer rigorous imprisonment for 10 years
apart from payment of fine of Rs.10,000/- for the offence
punishable under Section 376 of the IPC. For the offence
punishable under Section 392 of the IPC, he has been sentenced
to suffer rigorous imprisonment for 7 years apart from payment of
fine of Rs.5,000/-.
2 Heard the learned advocate appearing for the
applicant / accused. She argued that medical evidence adduced
by the prosecution is not consistent with the version of the
prosecution. She argued that evidence of PW14 Dr.Hemlata
Pandey shows that the applicant / accused is a probable biter. She
had examined the prosecutrix on 24th January 2014. However, her
evidence shows that the size of injury on the victim is more than
the size noted by PW19 Dr.Chitwan Dubey. The learned advocate
further argued that the fact that the brassiere of the prosecutrix
was seized from her falsifies the story of bite marks on breast area
of the prosecutrix. While the prosecutrix was wearing the
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brassiere, no injuries of bite marks can be there. There were no
injury on the private part of the prosecutrix and this evidence
shows that witnesses are lying. The learned advocate further
argued that PW19 Dr.Chitwan Dubey has incorrectly stated the
time of examination as well as facts regarding examination of the
prosecutrix. Evidence of the victim (PW1) in paragraph 15 to the
effect that she was taken to KEM Hospital negates the theory of
PW14 Dr.Hemlata Pandey. Evidence of PW14 Dr.Hemlata Pandey
shows that she had been to Seven Hills Hospital for examination
of the victim. It is further argued that the CCTV footage as seen
from the evidence of the Investigating Officer, is not the original
footage. The original CCTV footage was in the hard disk which
was not produced before the court, and therefore, evidence
regarding CCTV footage is totally inadmissible. The learned
advocate argued that the prosecutrix was left on the spot by a
person named Hemant Gupta. However, this material witness is
not examined by the prosecution. Though spot of incident is
stated to have been shown by the brother of the victim, he is also
not examined by the prosecution. With this, according to the
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learned advocate for the applicant / accused, there is no evidence
to connect the applicant / accused with the crime in question, and
therefore, he is entitled to be released on bail during pendency of
the appeal filed by him.
3 The learned APP opposed the application by
contending that there is evidence in the nature of extra judicial
confession by the applicant / accused before PW13 Dr.Sachin Patil.
The learned APP further argued that CCTV footage collected by
the prosecution and proved before the trial court shows that
watchman of the society i.e. the applicant / accused was in
company of the victim and as he was posted to guard the
residence of the society, it was not his business to be near the
prosecutrix. It is argued that clothes of the applicant / accused
were recovered at his instance from the meter room of the society
and the cell phone of the victim was recovered at his instance
from the Paradise society. Clothes of the victim were recovered
from the nearby area. The forensic evidence is pointing out the
guilt of the applicant / accused in as much as the soil found on
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clothes and belt of the applicant / accused is matching with the
soil found on clothes of the victim of the offence. My attention is
drawn to the evidence of PW21 Shashank Mishra to point out that
during the relevant period, the applicant / accused was not within
the premises of the buiding.
4 I have carefully considered the rival submissions and
also perused the copies of deposition of witnesses examined by the
prosecution.
5 It is the case of the prosecution that in night hours of
23rd January 2014, the prosecutrix, who was resident of Raheja
Vihar Apartments, had been to dance class and then along with
her friends she had gone to Hary's Restaurant for dinner. As seen
from the prosecution case, there the prosecutrix and her friends
consumed liquor and in the night intervening 23 rd January 2014
and 24th January 2014, she returned to her apartments along with
her friends. As she saw a resident of apartment, the prosecutrix
had chosen not to enter in the apartment. The auto rickshaw was
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then taken at some distance. Thereafter, the friend of the
prosecutrix left in the auto rickshaw. It is case of the prosecution
that then, the applicant / accused committed rape on her while
she was under the influence of the liquor.
6 Evidence of the prosecutrix reveals that she is not
recollecting the incident having lost her senses soon before the
incident. She regained her consciousness while admitted in the
hospital. As such, case of the prosecution is based on
circumstantial evidence.
7 First circumstance which can be noted from the
evidence of the prosecution is disappearance of the applicant /
accused from place of duty at the time of the incident. According
to the prosecution case, the incident of rape on the prosecutrix
was committed in the parking area of the nearby building.
Evidence of PW21 Shashank Mishra shows that the applicant /
accused was aware about the arrival of the prosecutrix in the late
night hours as he had opened the door when the auto rickshaw
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came there. Evidence of PW21 Shashank Mishra shows that then
the auto rickshaw took "U" turn and the prosecutrix and the friend
accompanying her went back in the said auto rickshaw. Evidence
of this witness shows utterance of the applicant that the victim is
vomiting and he needs to go there to see her. On this pretext, the
applicant / accused, as stated by PW21 Shashank Mishra, has left
the society. The applicant / accused was missing from his duty
area for a period of about 30 to 40 minutes i.e. the time when the
incident allegedly took place. Evidence of this witness further
shows that at about 3.45 a.m. the prosecutrix came inside the gate
of the apartment under influence of the liquor. Thereafter, on
being informed by another lady, he came to know that the victim
was lying in the lobby of "A" wing of the building.
8 The next piece of evidence relied by the prosecution is
extra judicial confession made by the applicant / accused before
PW13 Dr.Sachin Patil. The applicant / accused while appearing
before this Medical Officer gave the history of indulging in
fingering in the genitals of 28 years old female at about 2.30 a.m.
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of 24th January 2014 apart from sucking, kissing and fondling that
female.
9 Apart from this, on the basis of confessional statement
of the applicant / accused, there is recovery of a cell phone from
the nearby building. The prosecutrix has duly identified that cell
phone which was recovered at the instance of the applicant /
accused. This fact becomes relevant under Section 27 of the
Evidence Act.
10 It is seen from the evidence of the prosecution that the
prosecutrix was found in semi-nude condition and there were no
clothes on the lower portion of her body. During the course of
investigation, under panchnama Exhibit 29, in presence of PW6
Namdev Waghmare, a panch witness, clothes of the prosecutrix
including her high heel boots were seized. Clothes of the applicant
/ accused were also seized. Report of the Chemical Analysis of
these seized articles shows that soil found thereon is matching. It
is, thus, seen from this evidence that clothes of the applicant /
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accused were stained with some type of soil which was found on
clothes of the prosecutrix.
11 Evidence of PW14 Dr.Hemlata Pandey and PW19
Dr.Chitwan Dubey shows that the prosecutrix was sexually
molested.
12 The evidence pointed out in foregoing paragraphs
prima facie indicates that it was the applicant / accused who is the
perpetrator of the crime in question. As such, it cannot be said
that there is no evidence against the applicant / accused to
implicate him in the crime in question.
13 Considering the nature and the quality of evidence
adduced by the prosecution and the nature of crime, it is not
possible to conclude that this is a fit case wherein bail can be
granted to the applicant / watchman accused of raping the
resident of a building under his guard, and a such, the following
order :
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i) The application is rejected.
ii) The hearing of the appeal is expedited as the
applicant / accused is undergoing sentence.
(A. M. BADAR, J.)
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