Dhananjay Shrikant Tiwari vs The State Of Maharashtra And Anr
2023 Latest Caselaw 4178 Bom

                                                                   (21)Apeal-1084-2022.doc


rajshree


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION
                                          APPEAL NO.1084 OF 2022
                                                  WITH
                               INTERIM APPLICATION NO.3659 OF 2022
                                                    IN
                                          APPEAL NO.1084 OF 2022
                                               ALONGWITH
                                          APPEAL NO.1105 OF 2022
                                                  WITH
                               INTERIM APPLICATION NO.3745 OF 2022
                                                    IN
                                          APPEAL NO.1105 OF 2022
            Dhananjay Shrikant Tiwari                      ]       ..       Appellant
                             vs.
            State of Maharashtra                           ]       ..       Respondent

ALONGWITH REVISION APPLICATION NO.507 OF 2022 AND REVISION APPLICATION NO.509 OF 2022 XX ] .. Applicant vs.

State of Maharashtra & Anr. ] .. Respondents

Mr.Vaibhav Kulkarni for the Appellant. Ms.Kunika Ahuja i/b Jyoti Patole for Applicant in Revn.Nos.507/2022 and 509/2022.

Ms.P.N. Dabholkar, APP for State.

(21)Apeal-1084-2022.doc

CORAM : BHARATI DANGRE, J

DATE : 25th April, 2023.

P.C.

1] Heard the learned counsel for the Appellant, the learned counsel for the Complainant and the learned APP for the State.

2] The two distinct FIRs came to be registered against the Appellant, in the first FIR, he was accused of committing rape upon his own cousin sister in a running train. The alleged incident having taken place, was reported to the Police Station after two days. Another incident, which is alleged to have taken place in between the actual happening of the first incident and its reporting, resulted into another CR on being reported after 5 days and by invoking Section 307 of the IPC.

The Appellant was subjected to trial in two distinct cases and came to be convicted in Sessions Case No.721/2019 for committing offence punishable under Section 376(2)(f), 354-A and 506 of the Indian Penal Code. He is sentenced to suffer RI for 10 years.

It is informed by the learned counsel for the Appellant that, he came to be arrested in the year 2017 and he remained incarcerated throughout the trial.

3] As far as other Sessions Case No.1/2018 is concerned, the Appellant came to be convicted for offence punishable under Section 307 and 506(2) of the IPC.

In the impugned Judgment in Sessions Case No.721/2019, the learned Judge has accepted the version of the Prosecutrix as a gospel truth with no explanation coming forth as to why she did not raise any

(21)Apeal-1084-2022.doc

hue and cry or did not report the incident immediately to any one in the train. It is surprising that the Prosecutrix forwarded message to PW 2 about the incident, but did not alarm the co-passengers in the train, about the incident.

The learned Judge, has, however, accepted her version by recording that she was under threat.

As far as offence under Section 307 of the IPC is concerned, though 5 to 7 persons were alleged to be present, none has attempted to stop the assault.

4] The finding recorded in the impugned Judgments will have to be appreciated in the wake of evidence that has been placed before the Court and also about the existence of probabilities of the occurrence having taken place in both the situations.

5] Since the Appellant was incarcerated throughout the trial and considering that he has undergone almost half of the sentence; two Revision Applications filed by the Complainant being aggrieved by the sentences having been directed to run concurrently in two distinct trials, the Appeals as well as the Revision Applications deserve a final hearing.

Hence, both the Appeals are Admit.

Issue notice to Respondent.

The learned APP waive service of notice on behalf of State.

6] Considering the peculiar fact that more than half of the sentence is already undergone by the Appellant as under-trial prisoner, the Record and Proceedings of the Sessions Case No.721/2019 and 1/2018, shall be expeditiously called from the Sessions Court, Pune.

(21)Apeal-1084-2022.doc

The Registry shall forthwith address communication to the concerned Court about recorded and proceedings to be transmitted to this Court and it shall also expedite the process of preparation of paper book. The entire exercise shall be carried out on or before 30.06.2023.

List the Appeals alongwith Revision Applications on 03.07.2023 for fixing date of final hearing.

[BHARATI DANGRE, J]