Bombay High Court
Dnyaneshwar Laxman Dudde (Now In ... vs The State Of Maharashtra on 27 April, 2021
Bench: V. V. Kankanwadi
704-2021-Appln.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.704 OF 2021
IN
CRIMINAL APPEAL NO.141 OF 2021
DNYANESHWAR LAXMAN DUDDE
VERSUS
THE STATE OF MAHARASHTRA
...
Mr. V. V. Bhavtankar, Advocate for applicant.
Mr. A. M. Phule, APP for the respondent - State.
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 09-04-2021
Pronounced on : 27-04-2021
ORDER :-
. Present application has been filed for suspension of sentence that
has been imposed on the applicant - appellant by learned Special Judge,
Biloli, Dist. Nanded in Special Case Child Prot. No.02 of 2017 on
23.02.2021, whereby the applicant who is accused No.1 therein has
been convicted for the offence punishable under Section 376 of Indian
Penal Code and thereby sentenced to suffer rigorous imprisonment for
seven years and to pay fine of Rs.5,000/-, in default, to suffer simple
imprisonment for three months.
2. Heard learned Advocate Mr. V. V. Bhavthankar for the applicant
and learned APP Mr. A. M. Phule for the respondent - State.
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3. It has been vehemently submitted on behalf of the applicant that
the sentence that has been awarded to the applicant is small sentence
and, therefore, in view of the decision in Kiran Kumar Vs. State of M. P.
[(2001) 9 SCC 211], he deserves to be released on bail. Further, it is
required to be seen that the applicant was on bail throughout the trial
and he has not misused his liberty. The appeal has been admitted and
there are certain points which the appellant - applicant wants to canvass
at the time of final hearing. The applicant has been acquitted of the
offences punishable under Sections 363, 366, 366-A read with 34 of
Indian Penal Code and Sections 4 and 6 of the Protection of Children
from Sexual Offences Act (hereinafter referred to as the 'POCSO Act').
The age of the girl has not been proved by the prosecution beyond
reasonable doubt. If we consider the testimony of the victim girl, it can
be seen that she had left the house on 16.07.2016 at about 8.30 a.m.
Thereafter, she had felt like vomiting and, therefore, she had gone to the
medical shop to buy tablets. She purchased the tablets and returned to
the school. She was sitting in the classroom. When the school peon told
her that somebody had come to meet her, she came out of the classroom
and then saw the present applicant standing outside. He told that her
mother is not feeling well and then she should go to the house
immediately. After taking permission from the class teacher, she went
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outside the classroom. According to her, the applicant was still standing
and was with her, but then she doesn't say that any force was applied by
him at that time. She waited for the bus and without noticing where the
bus was going, she boarded it. She also states that inside the bus, the
applicant sat near her and showed her knife and threatened not to make
any shouts and then she says that she was feeling giddiness. She
regained her consciousness around 6.00 p.m. and found that the
applicant was besides her. She then says that she asked him as to where
she has been brought. Applicant told her to keep quiet and not to shout
and then she says that she was alighted from the bus. It was Isnapur
stop. She was taken to applicant's maternal uncle's house. Even she
says that in Hindi, the applicant had told his uncle that he has
kidnapped the victim. According to her, the applicant had kept her there
for two days. All these facts would show that she never tried to get
herself rescued. She never raised human cry for help. Therefore, the
possibility of voluntary act on her part to accompany applicant cannot
be ruled out. She then states that the father of the applicant had arrived
and gave her threats. They had taken her to Railway Station Hyderabad
and then to Belgaon. She then states that by giving threats with the
help of knife, the applicant had committed rape on her between
22.07.2016 to 26.07.2016. She never raised human cry even between
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her journey through railway. In her cross examination it has come that
she knew the applicant since childhood. She has made various
improvements in her testimony and it shows that it was the act by
consent. When her age is not proved, that means she has been
considered as major and the act is voluntary, it will not attract the
offence under Section 375 of Indian Penal Code. Therefore, the said
conviction awarded to the applicant is wrong and, therefore, he deserves
to be released on bail till the disposal of his appeal.
4. Per contra, learned APP has strongly opposed the application and
submitted that a well reasoned judgment has been passed by the learned
Special Judge. Though the prosecution appears to have not proved the
age of the girl, the act of sexual intercourse was against her wish. Her
medical report is consistent to her testimony and, therefore, the
applicant has been rightly convicted. Suspension cannot be as of right
and, therefore, the application deserves to be rejected.
5. At the outset, the points which are in favour of the applicant are
that the sentence that has been awarded is small sentence. Secondly, he
was on bail throughout the trial and there is nothing on record to show
that he has misused that liberty. Only these two grounds may not be
sufficient and, therefore, the other aspects are also required to be
considered. The acquittal of the applicant from Sections 363, 366, 366-
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A of Indian Penal Code and Sections 4 and 6 of the POCSO Act speaks
for itself. The only thing remained was the charge under Section 376 of
Indian Penal Code. The learned Special Judge has then come to the
conclusion that though the age has not been proved, yet, the act of
sexual intercourse was against the wish of the victim. Whether under the
said circumstance, as to how the testimony of the victim could be
appreciated and her testimony whether reliable or not would be
decided. When for a part of acts her testimony has been discarded, then
for certain offence only whether that testimony can be believed, is a
question. In other words, if the acquittal of the applicant under Sections
363, 366, 366-A of Indian Penal Code as well as Sections 4 and 6 of
POCSO Act is considered, then the question arises as to how the girl
would have reached to the uncle's place of applicant, Railway Station
Hyderabad and by railway up to Belgaon. When there was opportunity
for her to flee away, she has not utilized it nor she had raised human cry
for help. Even when it is stated that the applicant had gone to her
classroom and thereafter, after taking permission from the class teacher,
she had left, then how it could take such a long time to trace out the
victim, is a question. The sole testimony of the victim is believable or
not will have to be reconsidered in the appeal. Therefore, when points
are made to deal with the appeal and it would take long time for the
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applicant - appellant to wait for the decision taking into consideration
the pendency of the cases in this Court, the applicant deserves to be
released on bail by suspending the sentence. Hence, the following
order:-
ORDER
1. The Criminal Application stands allowed.
2. The substantive sentence, imposed upon the applicant by
learned Special Judge, Biloli, Dist. Nanded in Special Case Child
Prot. No.02 of 2017 vide judgment and order dated 23.02.2021, is
hereby suspended till hearing and final disposal of the appeal.
3. The applicant be released on P. R. Bond of Rs.30,000/-
(Rupees thirty thousand) with two sureties of Rs.15,000/-(Rupees
fifteen thousand) each.
4. The applicant shall not indulge in any criminal activity.
5. The applicant shall remain present before the learned Trial
Judge once in six months, till final hearing and disposal of the
appeal, commencing from the date he tenders bail paper/s and,
thereafter, the Trial Judge to fix dates for the subsequent
appearances.
704-2021-Appln.odt
6. In case of two consecutive defaults on the part of the
applicant to remain present before the Trial Court, the Trial Court
to inform this Court about the same and in that eventuality, the
prosecution would be at liberty to file an application for
cancellation of the bail granted to the applicant.
7. Bail before the Trial Court.
[SMT. VIBHA KANKANWADI, J.]
scm
