Bombay High Court
Sunil Samadhan Dhandar vs The State Of Mah. Thr. P.S.O. Of ... on 12 August, 2022
Bench: Manish Pitale, Valmiki Sa Menezes
1/5 901-APPA 20.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 20 OF 2022
IN
CRIMINAL APPEAL NO. 17 OF 2022
Sunil Samadhan Dhandar (In jail) vs. State of Maharashtra and another
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Ms. Sapana Jadhav, Advocate for applicant.
Mr. Indranil Damle, APP for respondent No.1 State.
CORAM : MANISH PITALE AND
VALMIKI SA MENEZES JJ.
DATE : 12/08/2022
This is an application for suspension of
sentence and for release of the applicant on bail
pending appeal. The appeal filed by the applicant
was admitted on 11/01/2022.
2. Ms. Jadhav, learned counsel appearing for
the applicant submitted that although the applicant in
the present case has been convicted and sentenced
for a serious offence i.e. rape of his own sister, the
material on record is riddled with contradictions and
that the applicant has a strong prima facie case in his
favour in the appeal.
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3. By referring to the statement of the victim,
(who unfortunately died during the course of trial
and could not depose before the Court) it was
submitted that the First Information Report (FIR)
stood registered about two days after the alleged
incident. It was pointed out that even according to
the victim the incident allegedly took place around
9.00 to 9.30 p.m. on 14/11/2019 and the oral report
was lodged leading to registration of FIR about two
days later on 16/11/20019 at about 5.30 p.m. It was
submitted that the victim was admittedly patient of
AIDS and she was terminally ill. By inviting attention
to the medical examination report of the victim, as
also the C. A. report and depositions of witnesses,
particularly mother of the accused and the victim and
a neighbor, it was submitted that there was material
to indicate dispute between the accused and the
victim, which could have led to false implication. It
was submitted that the applicant never applied for
bail during the course of trial due to financial
constraints and therefore, he has continued behind
bars from the date of his arrest in November 2019.
On this basis, it was submitted that this Court may
consider the present application favourably.
4. On the other hand Mr. Damle, learned APP
strongly opposed the present application, contending
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that the Sessions Court in the present case had
analyzed the evidence and material on record to
reach cogent findings against the applicant and he
was found guilty of serious offence under Section
376(2)(f) of the Indian Penal Code. It was submitted
that a heinous crime was committed against his own
sister by the accused and that therefore, the present
application did not deserve consideration. Much
emphasis was placed on certain portions of the
impugned judgment and order of the Sessions Court,
as also the evidence and material on record, to
contend that no case was made out by the applicant
in his favour. It was submitted that the appeal could
be expedited for final hearing.
5. We have considered the rival contentions
in the backdrop of the material placed on record. We
find that the medical examination report of the victim
clearly indicates that apart from being HIV positive
and being extremely weak at the time of medical
examination, the victim was also found to have
globules and blisters all over her body. It is also
recorded that there were no external injuries visible
at the time of medical examination. When the
aforesaid physical condition of the victim is
considered in the backdrop of her statement leading
to registration of the FIR, wherein it is described as to
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the manner in which the applicant allegedly threw
her on the floor and committed the act of forcible
sexual intercourse, prima facie there appears to be
contradiction.
6. Apart from this, the evidence of the
mother of the accused and the victim shows that she
had left the house after an altercation with the
accused. In the cross-examination she also concedes
that there was dispute between the accused and the
victim as the accused was objecting to the presence of
the victim in the house. The victim being HIV
positive and apparently terminally ill, could have
been a reason for the accused to have objected to her
presence in the house. This backdrop of admitted
facts when appreciated along with other material on
record does indicate a prima facie case in favour of
the applicant. The C. A. report does not conclusively
indicate presence of semen on the cloths of the victim
or the quilt which was in the room at the time of the
incident.
7. An over all analysis at this stage does
indicate that the applicant may have a prima facie
case in his favour.
8. Considering the fact that the applicant
continued to remain behind bars through out the trial
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and as on today he appears to have already remained
incarcerated for about three years, we are of the
opinion that in the peculiar facts and circumstances
of the case, the present application can be allowed,
along with the direction to expedite the hearing of
the appeal.
9. In view of the above, the application is
allowed.
10. Consequently, the applicant shall be
released on bail on furnishing P.R.Bond of Rs.25000/-
[Rupees Twenty Five Thousand only] and a surety in
the like amount to the satisfaction of the
Registrar(Judicial) of this Court.
11. The applicant/appellant is directed not to
harass the witnesses, who deposed before the trial
Court, in any manner during the period he is
enlarged on bail.
12. The appeal, bearing Criminal Appeal
No.17 of 2022, shall be heard expeditiously and
preferably within a period of one year from today.
JUDGE JUDGE
Digitally signed byRAVIKANT
CHANDRAKANT KOLHE
Signing Date:12.08.2022
15:29
KOLHE
