Bombay High Court
Lala Mohan Purobiya vs The State Of Maharashtra And Ors on 8 March, 2022
Bench: Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.363 OF 2022
IN
CRIMINAL APPEAL NO.213 OF 2022
Lala Mohan Purobiya Applicant
versus
The State of Maharashtra and others Respondents
Mr.Rakesh Jadhav with Mr.Nitin B. Morajkar, Advocate for applicant.
Ms.P.N.Dabholkar, APP, for State.
CORAM : PRAKASH D. NAIK, J.
DATE : 8th March 2022
PC :
1. This is an application for suspension of sentence and grant of
bail during pendency of Criminal Appeal No.213 of 2022.
2. The applicant has been convicted for offence under Section
376(1) of Indian Penal Code and sentenced to suffer imprisonment
of ten years. He is also convicted for the offence under Section
506(II) of Indian Penal Code and sentenced to suffer imprisonment
for one year. Both the sentences were directed to run concurrently.
3. The case of prosecution is that the victim is married lady
having two children. She used to visit residence of her maternal
uncle situated in the vicinity of her residence. The complainant
Digitally signed by
MANISH MANISH SURESH
SURESH
noticed some change in her physical appearance and on enquiry with
THATTE
Date: 2022.03.10
THATTE 10:46:42 +0530
her, the victim had disclosed that the accused had subjected her to
sexual assault in public toilet. The victim was taken to doctor. It was
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revealed that she was pregnant. The FIR was registered.
Investigation proceeded. The accused was arrested. Charge sheet
was filed.
4. Learned counsel for applicant submitted that the applicant is
in custody for a period of about 5½ years. The alleged incident had
occurred in May-2016 and the FIR was lodged in August-2016 It is
difficult to accept that victim was subjected to sexual assault forcibly
in public toilet. No evidence is brought on record indicating that
victim had shouted and protested at the time of incident. It is the
case of prosecution that victim was mentally retarded. However,
there is no evidence in that regard. The witnesses have stated that
the victim was suffering from epilepsy. There is distinction between
epilepsy and mental retardation. The victim was sent to hospital for
the first time after registration of FIR to find out whether she was
mentally retarded. Her evidence does not reflect that she suffers
from any mental illness.
5. Learned APP submitted that there is no reason to disbelieve
the version of victim. The consent, if any, of the victim is immaterial,
as she was suffering from mental retardation. The victim has
categorically stated that she was forcibly subjected to sexual assault.
The medical evidence supports prosecution case. The medical case
papers also reflects that victim was mentally retarded. She was also
suffering from epilepsy.
6. The victim is a married lady having two children. Her
evidence discloses that she used to visit residence of her maternal
uncle. It is alleged that the applicant was striking conversation with
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her. She was taken to toilet and subjected to sexual intercourse. PW-
1 is the step father of victim. He has stated that victim was suffering
from epilepsy. On 14th August 2016 she complained of abdomenal
pain. Thereafter she was taken to doctor and it was disclosed that
she was pregnant. From the evidence of this witness it can be seen
that the victim did not disclose the incident to him or her mother
immediately after its occurrence. It is only after noticing some
changes in the appearance of the victim, enquiry was made with her
and thereafter it was disclosed that she was allegedly subjected to
sexual assault by the accused in public toilet. Except of stating that
victim is suffering from epilepsy, this witness has not referred to the
fact that victim was mentally retarded. PW-2 is the medical officer
who has examined the victim on 16th August 2016. He has stated
that age of the victim was 22 years. History was provided during
examination indicating that there were two instances of sexual
assault. PW-3 is the medical officer who has referred to the
examination of DNA and stated that it matches with the accused.
PW-4 is the victim. Her evidence discloses that she was treated for
tuberculosis. Her evidence does not disclose date of incident.
According to her the incident was disclosed to her sister. From the
tenor of her evidence it does not appear that she was mentally
retarded or was not in position to understand good and bad. She is
married lady having two children. She has admitted that toilet where
the alleged incident had occurred, is situated in front of the house of
her uncle. The defense has alleged that relationship at the most can
be consensual in nature. From the cross-examination of the said
witness it appears that there was no protest from the victim at the
time of incident. The history provided to the doctor refers to the fact
that there were two instances of sexual assault. It is pertinent to
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note that till the FIR was registered, there is no medical history of
the victim suffering from mental retardation. PW-6 is clinical
psychologist, who had examined the victim on 14th February 2020.
She has recorded that victim has mild retardation. This examination
was conducted for the first time in the year 2020. The alleged
incident had occurred in 2016. The applicant is in custody for a
period of about 5½ years.
7. Considering the aforesaid circumstances, case for suspension
of sentence and grant of bail is made out. Hence, I pass following
order :
ORDER
(i) Interim application is allowed and disposed of;
(ii) The sentence of imprisonment imposed vide judgment and
order dated 10th July 2021 by learned Additional Sessions Judge,
City Civil & Sessions Court, Greater Bombay in Sessions Case No.87
of 2017 is suspended, and applicant is directed to be released on bail
on executing PR bond in the sum of Rs.20,000/- with one or more
sureties in the like amount;
(iii) The applicant is permitted to furnish cash bail in the sum of
Rs.20,000/- for a period of eight weeks in lieu of sureties;
(iv) The applicant shall not contact in any manner and meet the
victim;
(v) The applicant shall attend Trial Court once in six months on
first Saturday of the month till final disposal of the Criminal Appeal;
(vi) In the event there are two consecutive defaults in attending
the Trial Court, the Trial Court shall submit report to this Court;
(vii) In the event of default committed by the applicant in attending
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the Trial Court, the prosecution will be at liberty to prefer application
for cancellation of bail.
(PRAKASH D. NAIK, J.)
MST
