Bombay High Court

Devendra Rajendra Bhoi (More) vs The State Of Maharashtra And Another on 18 December, 2023

Author: Vibha Kankanwadi

Bench: Vibha Kankanwadi

2023:BHC-AUG:26887-DB


                                                                        CriAppln-3171-2023
                                                   -1-

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                              CRIMINAL APPLICATION NO. 3171 OF 2023
                                               IN
                                 CRIMINAL APPEAL NO. 969 OF 2023

                Devendra Rajendra Bhoi (More)
                Age 24 years, Occu. Footana Seller,
                R/o. Vaijapur, Taluka Chopda,
                District Jalgaon.                                     ... Applicant

                        Versus

                1.      The State of Maharashtra

                2.      XYZ                                           ... Respondents
                                                 .....
                Mr. Satej S. Jadhav, Advocate for the Applicant.
                Mr. S. D. Ghayal, APP for Respondent No.1-State.
                Mr. K. L. Tupe h/f Mr. Y. A. Jadhav, Advocate for Respondent No.2.
                                                  .....

                                         CORAM :         SMT. VIBHA KANKANWADI AND
                                                         ABHAY S. WAGHWASE, JJ.

DATED : 18.12.2023

ORDER [ABHAY S. WAGHWASE, J.] :

1. By invoking Section 389 of the Code of Criminal Procedure

[Cr.P.C.], the applicant/appellant is praying for suspension of

sentence and grant of bail during pendency of appeal.

2. Learned counsel for the applicant would submit that applicant

is held guilty for charge under Sections 323, 341, 354, 363, 376, 376-

A and 506 of the Indian Penal Code as well as Sections 5(m), 8 and CriAppln-3171-2023

12 of the Protection of Children from Sexual Offences Act, 2012. It is

pointed out that statements of victim are recorded by taking aid of

translator and therefore it is doubtful whether it is a correct version.

He pointed out that there are accusations about initially kidnapping

two girls and sexually abusing them but there is no proper

identification. Only description given is that the person who sexually

abused was a gram seller. The person who abused was allegedly seen

in the light of a mobile torch. Only piece of evidence which seems to

have prevailed over learned trial Judge is the DNA evidence/forensic

evidence but, according to him, there are major infractions and lapses

while collecting samples and therefore appellant has a good case in

appeal. However, according to him, it would take long time for

hearing of the appeal and so at this juncture he prays for suspension

of sentence and grant of bail.

3. Learned APP and learned counsel representing victim, both are

resisting the above relief by pointing out that there is overwhelming

evidence. That, both victims have identified accused. There is severe

sexual assault on two minor girls belonging to reserved category.

Therefore, serious offence has been committed and on proper

appreciation, guilt is recorded. On such reasons, relief is resisted.

CriAppln-3171-2023

4. Heard respective sides.

5. We are now called upon to exercise powers under Section 389

of Cr.P.C. for suspending the sentence inflicted by trial Judge along

with prayer for grant of bail during pendency of appeal. Above section

permits suspension of sentence after conviction and even permits

setting convict at liberty. However, it is fairly settled that such powers

are to be exercised only in exceptional cases and in rare circumstances

when it is palpably shown that there are fair chances of success in

appeal and when appellate court is satisfied about existence of

apparent and gross error on the face of record. Obviously, at this

stage, there cannot be meticulous re-appreciation of the evidence but

only on prima facie consideration and satisfaction, if the court feels

that conviction may not be sustained while rejudging the case, only in

such exceptional cases, sentence has to be suspended and bail can be

granted to the prisoner till decision of the appeal by the appellate

court. As to what are the exceptional cases and rare cases has not

been defined or categorized but going by the precedents, certain

factors like gravity of offence, nature of crime, circumstances in which

offence has taken place are a few considerations which are expected

to be borne in mind while exercising powers under Section 389 of

Cr.P.C. There are catena of judgments on above point and a few could CriAppln-3171-2023

be named as Rama Narang v. Ramesh Narang and others (1995) 2

SCC 513 ; Rajesh Rajan Yadav alias Pappu Yadav v. CBI (2007) 1 SCC

70 and Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi)

(2008) 5 SCC 230 wherein scope, object and purport of Section 389

of Cr.P.C. has been distinctly and lucidly discussed.

6. Very recently, the Hon'ble Apex Court in the case of Omprakash

Sahni v. Jai Shankar Chaudhary and another (2023) LiveLaw SC 389

has elaborately dealt with the precedent on above provision and after

dealing with above referred cases and other cases namely, Ash

Mohammad v. Shiv Raj Singh alias Lalla Babu and another (2012) 9

SCC 446; Bhagwan Rama Shinde Gosai and Others v. State of Gujarat

(1999) 4 SCC 421; Hasmat [(2004) 6 SCC 175]; Vijay Kumar v.

Narendra and Others [(2002) 9 SCC 364]; Atul Tripathi v. State of

Uttar Pradesh and Others (2014) 9 SCC 177; Kishori Lal v. Rupa and

Others (2004) 7 SCC 638; Ramji Prasad v. Rattan Kumar Jaiswal and

Another (2002) 9 SCC 366; Vasant Tukaram Pawar v. State of

Maharashtra (2005) 5 SCC 281 and Gomti v. Thakurdas and Others

(2007) 11 SCC 160, culled out following propositions in para 33 of

the judgment which is as under:

CriAppln-3171-2023

"33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here and there in the case of the prosecution.

Such would not be a correct approach."

7. Therefore, the legal proposition that is settled is that though it

is a discretionary power, it is expected to be exercised judiciously and

in only such cases in which circumstances and reasons exist to grant

such relief. Ultimately, it all depends on the facts and circumstances CriAppln-3171-2023

of each case and there is no straightjacket formula or absolute rule for

grant or refusal. However, in the case of Vijay Kumar (supra) as well

as Atul Tripathi (supra), it has been held that court should consider

factors like nature of accusation, manner in which the crime is alleged

to have been committed, gravity of offence, age, criminal antecedents

of the convict, desirability of releasing the accused on bail by

suspending the sentence etc.