Bombay High Court
Mohd. Farukh Abdul Latif Khan vs State Of Maharashtra on 4 May, 2022
Bench: Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1427 OF 2022
IN
CRIMINAL APPEAL NO.1422 OF 2018
Mohd. Farukh Abdul Latif Khan Applicant
(Accused no.2)
versus
The State of Maharashtra Respondent
Mr.Farzan with M.B.Shaikh, Advocates for applicant.
Mr.S.V.Gavand, APP, for State.
PSI S.V.Mungekar, Paydhuni Police Station, present.
CORAM : PRAKASH D. NAIK, J.
DATE : 4th May 2022
PC :
1. This is an application for suspension of sentence and grant of
bail pending Criminal Appeal No.1422 of 2018. The applicant
(accused no.2) has been convicted vide judgment and order dated
26th September 2018 passed by learned Additional Sessions Judge,
City Civil & Sessions Court, Greater Bombay. Applicant has been
convicted for the offence punishable under Section 376-D of Indian
Penal Code and sentenced to suffer imprisonment for 20 years. The
applicant is also convicted for the offence punishable under Section
341 of IPC and sentenced to suffer imprisonment for one month.
2. The case of prosecution is that the victim was married to one
Ranjit Kanojia. Her husband was ill-treating her. Hence she had
shifted to her parents home and residing with them. Accused no.1 is
Digitally signed by
MANISH
relative of victim's husband. He was acquainted with the family of
MANISH SURESH
SURESH THATTE
Date: 2022.05.06
THATTE 10:38:48 +0530
the victim. The parents of the victim had decided to send the victim
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to Mumbai with accused no.1 for job. Both of them left Lucknow on
8th March 2017. At Lucknow railway station they were acquainted
with Mohd. Farukh Khan. He offered them to travel on his reserved
seat. On reaching Mumbai the victim and accused no.1 started
residing together. During the said period accused no.1 had
committed sexual intercourse with the victim for about 4 to 5 times.
On 16th March 2017 the victim was taken to the house of applicant
(accused no.2) by accused no.1. During the night, victim tried to
escape from the premises. During the attempt, she lost her balance
and fell down in the gutter. As a result of that, she suffered injuries.
Police reached the spot. She was taken to hospital for treatment. She
was hospitalized. Thereafter FIR was registered under Sections
376D, 341, 506 r/w Section 34 of IPC. On completing investigation
charge sheet was filed.
3. Learned advocate for applicant stated that applicant is in
custody for a period of about 6 years. Victim is a married lady. She
was major woman. The victim and accused no.1 were acquainted
with each other. Their marriage was performed in temple. The
offence of rape is not made out. The applicant had notbeen
attributed role of penetrative sexual assault. In the history provided
by the victim, it was stated that she is a married lady. The injuries
were sustained by her on account of fall. Medical evidence does not
indicate that the victim was forcefully subjected to sexual assault.
The defence had examined father of victim. Defence witness
fortified the fact that marriage was performed between accused no.1
and victim. The allegations about sexual assault were afterthought.
Accused no.1 has been granted bail by suspending sentence of
imprisonment.
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4. Learned APP submitted that there is no proof of marriage
between the victim and accused no.1. The evidence of the victim
discloses that she was forcefully subjected to sexual intercourse. On
the second occasion, both the accused had connived with each other
and sexually assaulted the victim. The offence is of serious nature.
There is substantial evidence to prove charge against them.
5. Applicant is in custody from 17 th March 2017. he has
undergone the detention for a period of about 6 years. Undisputedly
victim is a married lady. She had differences with her husband.
Parents of the victim sent her along with accused no.1 to Mumbai for
job. Accused no.1 and the victim stayed together. According to
victim, there was physical relationship between them. Apparently,
there was no complaint or protest after the alleged incident.
Thereafter victim was allegedly taken to the house of applicant. The
applicant is not attributed role of committing rape. Evidence of PW-
1 mentions that she was trying to escape from the premises and she
fell in gutter which had resulted in injuries. It is pertinent to note
that evidence on record discloses that victim was taken for treatment
However, she had not disclosed the incident of sexual assault to the
Doctor. She had only disclosed that she had fall in gutter and
suffered injuries.
6. PW-3 is Medical Officer. She has stated that the victim is a
married lady. She noticed injuries on her body. These injuries were
on account of fall in gutter. Injuries noticed on the hymen of the
victim were old.
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7. PW-6 is another Medical Officer. She has stated that victim
had given history of fall. Undisputedly accused no.1 and the victim
had stayed together in Mumbai after travelling together from
Lucknow and Mumbai. Accused had examined defence witness. He
is father of the victim. He has stated that victim and the accused
no.1 had performed marriage in temple. Applicant is in custody for a
period of more than 6years. Taking into consideration the above
facts, the sentence of imprisonment can be suspended. Hence, I pass
following order :
ORDER
(i) Interim Application is allowed and disposed of;
(ii) During pendency of Criminal Appeal No.1422 of 2018, the
sentence of imprisonment imposed by judgment and order dated 26 th
September 2018 passed by Additional Sessions Judge, City Civil &
Sessions Court, Greater Bombay in Sessions Case No.451 of 2017 is
suspended and applicant is directed to be released on bail on
executing PR bond in the sum of Rs.25,000/- with one or more
sureties in the like amount;
(iii) The applicant is permitted to furnish cash bail in the sum of
Rs.25,000/- for a period of eight weeks in lieu of sureties;
(iv) The applicant shall attend Trial Court once in six months on
First Saturday of the month till disposal of the Criminal Appeal;
(v) In the event there are two consecutive defaults in attending
the Trial Court, the Trial Court shall submit report to this Court;
(vi) In the event of default committed by the applicant in attending
the Trial Court, the prosecution will be at liberty to prefer application
for cancellation of bail.
(PRAKASH D. NAIK, J.)
MST
