Bombay High Court
Shivshankar @ Bhim Mangaru Gupta vs The State Of Maharashtra And Ors on 25 October, 2021
Bench: Anuja Prabhudessai
Megha 23_ia_1974_2021 in apeal_542_2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.542 OF 2021
Digitally
signed by
MEGHA MEGHA S
PARAB
S
WITH
Date:
PARAB 2021.10.27
13:59:45
+0530
INTERIM APPLICATION NO.1974 OF 2021
IN
CRIMINAL APPEAL NO.542 OF 2021
Shivshankar @Bhim Mangaru Gupta ...Applicant
Versus
The State of Maharashtra and Anr. ...Respondents
....
Mr. A.R. Shukla i/b. M/s. A.R. Shukla and Associates for the Applicant.
Mr. P.H. Gaikwad, APP for Respondent No.1-State.
Ms Grishma Lad for Respondent No.2 (appointed)
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED: 25th OCTOBER, 2021.
P.C.:-
CRIMINAL APPEAL NO.542 OF 2021:-
Heard. Admit.
2. Mr. P.H. Gaikwad, learned APP waives service on behalf of
Respondent No.1-State. Ms Grishma Lad, learned counsel, who is on
legal aid panel, is appointed to represent Respondent No.2. Call for the
record and proceedings. Paper book to be fled within a period of six
months.
INTERIM APPLICATION NO.1974 OF 2021:-
Megha 23_ia_1974_2021 in apeal_542_2021.doc
3. This is an application under Section 389 of the Code of
Criminal Procedure, 1973 for suspension of sentence imposed by
judgment dated 17/03/2021 passed by learned Additional Sessions
Judge, City Civil and Sessions Court, Greater Bombay in Sessions Case
No.499 of 2016 and to enlarge the Applicant on bail.
4. By the impugned judgment, the learned Judge has held the
Applicant guilty of ofences punishable under Sections 366 and 376(2(g)
r/w 34 of the IPC and sentenced to undergo rigorous imprisonment for
ten years and fne of Rs.5,000/- i/d to sufer rigorous imprisonment for
three months for ofence under Section 366 of the IPC and rigorous
imprisonment for 15 years with fne of Rs.10,000/- i/d to sufer further
rigorous imprisonment for six months for ofence under Section 376(2)
(g) of the IPC.
5. Heard Mr. A.R. Shukla, learned counsel for the Applicant, Mr.
P.H. Gaikwad, learned APP for Respondent No.1-State and Ms Grishma
Lad, learned counsel for Respondent No.2. Perused the records and
considered the submissions advanced by the learned counsel for the
respective parties.
6. The case of the prosecution in brief is that the Applicant had
Megha 23_ia_1974_2021 in apeal_542_2021.doc
forcible sexual intercourse with the prosecutrix against her wish, who at
the relevant time was 16 years, 10 months of age. The evidence of
prosecutrix reveals that on 23/12/2009 she had received a phone call
from co-accused Munna. He called her at Bhandup station. She has
stated that she refused to go. On the same date at about 12.30 p.m.
she met the co-accused at Bhandup station. Said Munna took her to a
room wherein the present Applicant was residing. She has stated that
the co-accused as well as the Applicant had committed rape on her.
7. The evidence on record reveals that the victim was medically
examined by PW7-Dr. Shivaji Daund. The evidence of this witness vis-a-
vis the medical report prima facie reveals that the victim was subjected
to forcible sexual intercourse. The Medical Ofcer had also collected
vaginal smear and swab and taken blood sample of the victim and same
was sent for clinical analysis. FSL report at Exhibit -19 reveals that there
were blood stains on hymen origin and smear stains on Salwar, nicker
and Kurta of the victim. The medical evidence therefore prima facie
corroborates the evidence of the prosecutrix.
8. The material on record further indicates that the Applicant
had absconded after commission of the ofence. Hence, the trial was
separated. The Applicant was arrested on 03/03/2016 at Orissa.
Megha 23_ia_1974_2021 in apeal_542_2021.doc
Considering the above conduct, possibility of the Applicant absconding
cannot be ruled out .
9. Considering the above facts and circumstances, in my
considered view this is not a ft case for suspension of sentence. Hence,
the Application is dismissed.
(SMT. ANUJA PRABHUDESSAI, J.)
