Bombay High Court
Jagdish Rambhau Bhoge vs The State Of Maharashtra And ... on 4 August, 2023
Bench: S. G. Mehare
2023:BHC-AUG:16591
1 937-CrAn-2092-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2092 OF 2023
IN APEAL/508/2023
JAGDISH RAMBHAU BHOGE
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Applicant : Mr. Dhananjay S. Patil
APP for Respondent No.1/State : Mr. K. S. Patil
Advocate for Respondent No.2 : Ms. Manjushri V. Narwade
(Appointed)
...
CORAM : S. G. MEHARE, J.
DATE : 04-08-2023
PER COURT :-
1. Heard the learned counsel for the applicant, learned counsel
for the respondent No.1/State and the learned counsel for
respondent No.2/victim.
2. The applicant who is transgender has been convicted for the
offence punishable under Section 366 read with Section 109 of the
Indian Penal Code and sentenced to suffer rigorous imprisonment
for four years by the learned Additional Sessions Judge-2, Jalna, in
Special Case (Child) No.28 of 2020, vide order dated 18.05.2023.
3. The learned counsel for the applicant would submit that the
role attributed to the applicant has not been proved; however, the
erroneous findings have been recorded against him that he
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handed over the custody of the kidnapped girl from accused No.1
to accused No.4. The victim was in advanced age and was able to
understand the worldly affairs. There were no antecedents to the
discredit of the applicant. He was on bail throughout the trial. The
ingredients of Section 366 of the Indian Penal Code have not been
proved against him. Considering the observations recorded against
him, he had barely handed over the child in the custody of
accused No.4 through accused No.1, it did not constitute the
offence as allegedly proven against him. He was never the part of
the crime. He was used by other co-accused. Considering the
short term sentence, it may be suspended till conclusion of the
appeal.
4. The learned A.P.P. and learned counsel for respondent
No.2/the victim have vehemently argued that the applicant was a
part of the racket run by accused. The victim has been exploited.
She was not only kidnapped but the co-accused raped her. The
applicant had played active role in kidnapping the child. The
offence is grave and serious. The evidence was sufficient to prove
the guilt against him and accordingly the learned Additional
Sessions Judge appreciating the evidence correctly held the
accused guilty. The offence is against the society. Considering his
gender, the Court has taken a lenient view and imposed lesser
sentence. The life of many girls may be in danger if accused is
released on bail on suspending the sentence.
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5. The learned counsel for the applicant relied on the case of
Mahadeo Mallesha Birajdar v. State of Maharashtra, AIR Online
2023 Bom 53, in which the Bombay High Court held that there
were no complaints made by the victim while traveling with the
accused for quite some distance, the sentence imposed was short
term i.e. for three years. The appeal was not likely to be decided
within short period. The applicant was on bail during trial. There
were no complaints of misuse of liberty granted to him. On these
facts, the Court was pleased to suspend the sentence.
6. The Hon'ble Apex Court in the case of Kiran Kumar Vs. State
of M.P., (2001) 9 SCC 211, has laid down the law, on suspension of
sentence during the appeal that when a person is convicted and
sentenced to a short-term imprisonment, the normal rule is that
sentence passed on him should be suspended, unless there are
exceptional reasons to deny the suspension.
7. In the case of K.C. Sareen vs C.B.I., Chandigarh, (2001) 6
SCC 584, the Hon'ble Supreme Court has held that the Court has a
duty to look at all aspects including the ramifications of keeping
such conviction in abeyance.
8. It is also the law that the suspension order has to be passed
on careful consideration of all the aspects and not as a matter of
routine course.
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9. Perused the impugned judgments and orders.
10. Admittedly, the victim traveled with the present applicant
from Jalna to Washim for a sufficient period and she did not
complain against the applicant. The applicant has been imposed
sentence for short term i.e. for four years. It is to be examined
whether the role attributed to the applicant amounts to an offence
under Section 366/109 of the Indian Penal Code. It is also to be
examined whether the applicant was a member of the racket
involved in the similar crime. The law is also settled that the
short-term sentence may be suspended.
11. Considering the facts of the case and no hopes of listing the
matter for final hearing in the near future, the Court is of the view
that the applicant deserves suspension of the sentence. Hence,
the order:-
i) The application is allowed.
ii) The execution, implementation, effect and operation of the
sentence imposed upon the applicant by the learned
Additional Sessions Judge-2, Jalna, to suffer rigorous
imprisonment for four years for the offence punishable
under Section 366/109 of the Indian Penal Code, in Special
Case (Child) No.28 of 2020, dated 18.05.2023, stands
suspended till conclusion of the a`ppeal.
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iii) The applicant be released on bail on executing P.B. and S.B.
of Rs.50,000/- with one solvent surety of like amount.
iv) Bail before the learned Additional Sessions Judge-2, Jalna.
v) The Secretary, High Court Legal Services Sub-Committee,
Aurangabad, do pay the fee to the learned counsel
appointed for respondent No.2/victim as per the schedule.
( S. G. MEHARE )
JUDGE
rrd
