Dhuvva @ Shahrukh S/O Munna Sheikh vs The State Of Maharashtra, Thr. ...
2021 Latest Caselaw 15087 Bom

Order                                                                         2010appa442.21
                                                    1


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


                 CRIMINAL APPLICATION [APPA] NO. 442 OF 2021
                       IN CRIMINAL APPEAL NO. 327/2021.
                                Dhruwa @ Shahrukh Munna Sheikh.
                                             -Versus-
              The State of Maharashtra, through P.O. Ballarshah, District Chandrapur.
Office Notes, Office Memoranda of Coram,                               Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders

                                              Shri A.R. Fule, Advocate for the Applicant/Appellant.
                                              Shri S.D. Sirpurkar, A.P.P. for the Respondent.




                                                          CORAM : VINAY JOSHI, J.

DATE : OCTOBER 20, 2021.

Heard.

2. This is an application seeking suspension

of execution of substantive sentence passed in Special

Atrocity Case No.18/2017, vide judgment and order

dated 09.06.2020. The appellant/accused is held

guilty for the offence punishable under Sections

376[2][m], 323 and 506 of the Indian Penal Code.

The trial Court has imposed sentence on the appellant

to undergo rigorous imprisonment for 10 years along

with fine for the offence punishable under Section

376[2][m] of the Indian Penal Code, and other

punishment for rest of the offences.

Order 2010appa442.21

3. The learned Counsel for the applicant/

appellant has primely submitted that despite cogent

evidence, the trial Court has convicted the appellant

solely on the basis of statement of the victim. He

would submit that the appellant came to be arrested

on 30.08.2017, and since then he is in jail. Precisely

it is his submission that the appellant has already

undergone imprisonment for 4 years, and there are no

chances of this appeal coming for hearing in near

future.

4. The State has objected this application by

contending that the trial Court has rightly appreciated

the evidence. It is submitted that the victim's

evidence is supported by medical evidence. Moreover,

the learned A.P.P. contended that in the year 2015,

the appellant was convicted for the offence of

kidnapping. Having regard to these facts, suspension

is opposed.

5. With the assistance of both sides, I have

gone through the evidence recorded by the trial Court.

The victim was admittedly major and was of 20 years

of age at the time of occurrence. It is her case that on

18.08.2017, at around 10 a.m. while she was on

Order 2010appa442.21

public road waiting for her sisters, the accused came

there, forcibly lifter her, took her in one dilapidated

house and had forcible intercourse. She also stated

that the accused hit her at her right leg with the help

of a tile and did the things.

6. The learned Counsel for the appellant

would submit that the incident as stated is impossible,

since it was a day time and occurrence is stated to be

on public road. Moreover, the learned counsel for the

appellant took me through the medical evidence

wherein the Doctor has opined that though hymen

was ruptured, it was not fresh. My attention was

invited to the statement of Doctor, who states that

there was no external injury on the person of the

victim. Moreover, I have gone through the evidence

of rest of witnesses. Having regard to these

submissions, the matter requires re-appreciation of

entire material. Already the appellant/applicant is in

jail for a period of more than 4 years. In case the

appeal is allowed, there would be no reversal of the

punishment which he has already undergone. The

learned counsel for the applicant/appellant submitted

that entire fine amount is deposited in the trial Court.

Order 2010appa442.21

Having regard to these facts, the applicant/appellant

has made out a case for suspension of sentence.

Hence, the following order.

(i) Criminal Application is allowed and

disposed of.

                                           (ii)    The execution of substantive sentence

                                                   passed      in     Special          Atrocity    Case

No.18/2017 by the Additional Sessions

Judge, Chandrapur dated 09.06.2020

stands suspended till the final disposal of

the appeal.

(iii) In the meanwhile, the applicant/appellant

shall be released on bail on his furnishing

P.R. Bond of Rs.50,000/- with one surety

in the like amount.

(iv) The trial Court shall ensure deposit of the

entire fine amount before issuing release

order.

JUDGE Rgd.