Bombay High Court
Bhanudas Gangaram Bhise vs The State Of Maharashtra And ... on 17 November, 2022
Bench: R. G. Avachat, R. M. Joshi
Cri. Appln. No.2181.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2181 OF 2022
IN
CRIMINAL APPEAL NO.490 OF 2022
Bhanudas s/o. Gangaram Bhise ..Applicant
Vs.
The State of Maharashtra and anr. ..Respondents
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Mr.N.S.Ghanekar, Advocate for applicant
Mr.A.M.Phule, APP for respondent no.1
Ms.Rashmi Kulkarni, Advocate (appointed) for respondent no.2
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CORAM : R.G.AVACHAT AND
R.M.JOSHI, JJ.
DATE : NOVEMBER 17, 2022
ORDER :-
This is an application under Section 389 of the Code of
Criminal Procedure (Cr.P.C.). Vide order dated 22.06.2022 passed by
learned Judge, Special Court (POCSO Act), Shrigonda, in Special
(POCSO) Case No.141 of 2019, the applicant/appellant has been
convicted for the offences punishable under Sections 376(2)(n) and
506 of Indian Penal Code (I.P.C.) and Sections 3 and 4 of the
Protection of Children from Sexual Offences Act. For the offence
under Section 376(2)(n) of I.P.C., the applicant has been sentenced to
suffer imprisonment for life, which shall mean imprisonment for the
remainder of his natural life and to pay a fine of Rs.5,000/-, in
default, to undergo simple imprisonment for six months. For the
offences under Sections 3 and 4 of POCSO Act, he has been
sentenced to suffer rigorous imprisonment for ten years and pay fine
of Rs.4,000/-, in default, to suffer simple imprisonment for three
months. And for the offence under Section 506 of I.P.C, he has been
sentenced to suffer rigorous imprisonment for one year.
2. Heard learned counsel for the parties. Perused the
impugned judgment and the evidence relied on.
3. Learned counsel for the applicant relies on the evidence
of the prosecutrix and her mother. PW 1 is mother of the
prosecutrix/victim. She testified that 15 days before she lodged the
FIR, the victim (her daughter) suffered stomach pains. She,
therefore, took her to a dispensary. It was realised that the victim
was pregnant of five months. After having taken her into confidence,
the victim related her that it was the applicant, who had sexual
intercourse with her in the field of one Gaikwad. He did such things
with her on 2-3 times. It is further in her evidence that the victim
also related her that one Namdev Adagale also had sexual
intercourse with her.
4. During cross-examination of PW 1, it has come on record
that the applicant was responsible for break-up of engagement of
her elder daughter with a boy in Mumbai. A quarrel had, therefore,
ensued between the two families. Before she lodged the FIR, she
had discussion with some villagers. She, however, denied that rival
group of the applicant had insisted to name the applicant in the FIR.
Her evidence further indicates that soon before her statement under
Section 164 of Cr.P.C. was recorded, she had discussion with the
police officials, as to what was to be stated in her statement. She
also testified that while the statement of the prosecutrix/victim was
recorded, she (victim) was not aware of the names of the persons
who had sexual intercourse with her. Her evidence suggests that
Namdev (another convict) had good relations with her. He would
extend them financial assistance.
5. The evidence of the victim is to the effect that the
applicant had committed rape of her in the field of one Gaikwad. He
threatened her with dire consequences, if she reported the incident
to anyone. According to her, the relationship between the applicant
and her mother have not been good.
6. Learned APP and learned counsel for respondent no.2
would submit that as the victim was below 18 years of age at the
material time and she has named the applicant to have had sexual
intercourse with her 2-3 times, the trial Court, on appreciation of
evidence, has rightly convicted the applicant. The victim had
become destitute. She delivered a baby. Both victim and her child
have been in shelter home. Both learned counsel urged for rejection
of the application.
7. Considered the submissions advanced. Perused the
evidence relied on.
8. The victim was below 18 years of age at the relevant
time. The FIR came to be lodged when it was realised that the
victim was 5 months' pregnant. As such, there was delay of little
over 5 months in lodging of the FIR. The victim delivered a baby.
The DNA report indicates that one Namdev (another convict) is the
biological father of the victim's new born. As such, so far as present
applicant is concerned, the evidence is only in the nature of oral
testimony of the prosecutrix/victim.
9. The applicant was on bail, pending trial. The appeal is
not likely to come up for hearing in the near future. The informant
has admitted to have had some discussion with the villagers before
the FIR was lodged. She had discussion with the police officers
about what was to be stated in her statement under Section 164 of
Cr.P.C. There is material to indicate that all was not well between
the applicant and the victim's mother, as he had played spoilsport in
break-up of engagement of the informant's elder daughter.
10. For all these reasons, we are inclined to suspend
execution of the substantive sentence. Hence, the order:-
(i) The application is allowed;
(ii) During pendency of the appeal, the substantive sentence
of imprisonment imposed vide order dated 22.06.2022 passed by
learned Judge, Special Court (POCSO Act), Shrigonda, in Special
(POCSO) Case No.141 of 2019, to stand suspended. The applicant
be released on bail on executing P.R. Bond in the sum of Rs.15,000/-
(Rupees Fifteen Thousand) with one surety in the like amount.
(iii) Fee of learned counsel appointed to represent
respondent no.2 is quantified at Rs.6,000/- (Rupees Six Thousand).
[R. M. JOSHI, J.] [R.G. AVACHAT, J.]
KBP
