Bombay High Court
Ankush Popat Wadane vs The State Of Maharashtra And Another on 18 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:26888-DB
CriAppln-2800-2023
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2800 OF 2023
IN
CRIMINAL APPEAL NO. 683 OF 2023
Ankush Popat Wadane
Age 38 years, Occu- nil,
R/o: Malumbra,
Taluka Tuljapur,
District Osmanabad. ... Appellant
Versus
1. The State of Maharashtra
Through Police Station Murum Taluka Omerga,
Taluka Omerga,
District Osmanabar.
2. XYZ ... Respondents
.....
Mr. R. J. Nirmal, Advocate for the Applicant.
Mr. Uma S. Bhosale, APP for Respondent No.1-State.
Mr. R. S. Shinde and Mr. V. P. Latange, 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.], prayers are raised for suspension of sentence and grant of
bail during pendency of appeal bearing Criminal Appeal No. 683 of
2023.
CriAppln-2800-2023
2. Learned counsel for the applicant submits that there is false
implication. There are allegations that victim was taken away when
she had been to answer call of nature and was sexually abused.
Initially, information was regarding said act committed by unknown
person. Therefore, learned counsel submits that there is doubt
whether there is proper identification. He tried to submit that merely
because accused was also in the same vicinity and had been for
answering call of nature, he is mistaken to be the culprit and arrested
after being caught by people. That, case has not been proved beyond
reasonable doubt and entire case is based on circumstantial evidence
and scientific evidence. That, applicant has strong case in appeal, but
as it would take long time, relief of suspension and grant of bail are
pressed into service.
3. Above relief is resisted by learned APP for State as well as
learned counsel representing victim on the ground that offence is
serious and victim is a child and there is severe sexual assault which is
confirmed through medical experts. It is also brought to the notice
that instant crime is not the only crime committed by applicant and
previously also similar offences have been committed by him and as
such he is habitual offender. For such reasons, prayers are sought to
be rejected.
CriAppln-2800-2023
4. Heard learned counsel for 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
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Cr.P.C. There are catena of judgments on above point and a few could
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-2800-2023
"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-2800-2023
of each case and there is no straight jacket 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.
8. After hearing both sides and on going through the papers
cursorily, there seems to be charge for offences punishable under
Sections 363, 376-AB, 376-E, 377 of the Indian Penal Code [IPC],
Sections 3(a)(b), 4(2), 5(i), 5(m), 5(t), 6, 14 of the Protection of
Children from Sexual Offences Act, 2012 and Section 66E of the
Information Technology Act, 2000. It seems that victim in this case
was studying in 1st standard. When she had been to answer call of
nature on 30.08.2022, she was allegedly taken beside the field and
sexually assaulted. Doctor, who medically examined as well as the
treating doctor both have confirmed sexual assault. When mother
realized that her daughter was missing, search seems to have been
undertaken. Witnesses, namely, Nanda, Hanmant and Yakub also
accompanied in the search and they have also been examined by
prosecution. It is claimed that applicant was seen running by carrying
CriAppln-2800-2023
his own clothes and was resultantly chased and caught hold of. PW2
Nanda, PW3 Hanmant, PW4-mother of victim as well as PW5 victim
herself have narrated about the occurrence. Medical experts, who
examined and treated victim are also examined as PW11, PW17 and
PW18. Even DNA examination seems to have been got done.
Considering the gravity of the offence, the age of the victim, the
circumstances in which serious offence has been committed, we do
not consider a case being made out to extent the relief sought before
us. Hence, the application is rejected.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
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