Sunil S/Omaroti Chimurkar vs State Of Mah. Thr. Pso Ps Chamorshi ...
2021 Latest Caselaw 10837 Bom

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                                                    1

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.

                   CRIMINAL APPLICATION (APPA) NO. 110/2021 IN
                          CRIMINAL APPEAL NO. 190/2021
                                        Sunil S/o Maroti Chimurkar
                                                  VERSUS
                                           State of Maharashtra

Office notes, Office Memoranda of
Coram, appearances, Court's orders                           Court's or Judge's Orders
or directions and Registrar's orders.

                                         Shri A. C. Jaltare, Advocate for applicant/appellant.
                                         Shri A. Damle APP for non-applicant/respondent.


                                                        CORAM : VINAY JOSHI, J.

DATE : 11.08. 2021.

Heard.

2. This is an application seeking suspension of

execution of sentence in terms of Section 389(1) of

the Code of Criminal Procedure. The applicant/accused

was charged for the offence punishable under sections

376(f) and 323 of the Indian Penal Code. The learned

Trial Court held that the prosecution has proved both

charged offences and ultimately sentenced him to

undergo rigorous imprisonment for 10 years along

with fine of Rs. 5,000/- for the offence punishable

under Section 376(f) of the Indian Penal Code and to

undergo rigorous imprisonment for 1 year along with

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fine of Rs. 1000/- for the offence punishable under

Section 323 of the Indian Penal Code. Both sentences

are directed to run concurrently.

3. Learned counsel for the applicant would

submit that during the pendency of trial, applicant was

on bail and he undertakes to deposit fine within short

period. It is further submitted that the appellant is in

jail from last two years. On merits, the learned counsel

for the applicant submitted that the evidence of

prosecutrix who was major, does not inspire

confidence. The medical evidence dose not support

the prosecution case. Moreover, semen stains were not

found on the clothes of victim on chemical analysation.

The State resisted for suspension by filing reply. It is

contended that the accused has committed offence of

serious nature which is duly proved in the Trial Court.

According to the State, there is no difficulty in basing

conviction on the sole testimony of prosecutrix.

Moreover, it is pointed that soon after the occurrence,

First Information Report (FIR) has been lodged

immediately.

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4. With the assistance of both learned counsel

appearing for parties, I have gone through the

impugned judgment and entire record.

5. The prosecution has examined in all seven

witnesses to establish the guilt. The entire thrust of

the prosecution was on the PW-1 Victim who has

narrated about forcible sexual intercourse. Learned

counsel for the defence also took me through the cross-

examination of victim to impress that her version is not

probable. Particularly, I have gone through the

evidence of PW-2 Doctor along with medico legal

certificate at Exh. 15. It reveals that within 13 hours

from the occurrence, victim girl aged 19 years was

examined. Medical Officer deposed that there were no

injury on her body nor injuries on her genetical part.

However, Doctor has opined that possibility of sexual

violence cannot be ruled out. Particularly, medico

legal report bares history only about attempt.

5. Having regard to all these facts, the

applicant has arguable case on merits. Fixed term of

imprisonment has been awarded. The accused is

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already in jail for the period of two years. Appeal

would take considerable time for hearing. In view of

that, the applicant has made out a case to exercise

judicial discretion to suspend execution of sentence,

hence following order:-

(I) Applications stands allowed and disposed

of.

(II) Execution and implementation of

substantive sentence passed in Sessions Case no.

126/2018 is hereby suspended till final disposal of

appeal. In the meantime, the applicant - Sunil S/o

Maroti Chimurkar is released on bail on his furnishing

P. R. Bond of Rs. 25,000/- with one surety in the like

amount.

(III) The applicant shall deposit entire fine

amount in the Trial Court within a period of two weeks

from his release, failing which the State can move this

Court for recall of this order.

JUDGE

Gohane.