Bombay High Court
Karbhari Shivram Bhume vs The State Of Maharashtra And Another on 20 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:26820-DB
CriAppln-3653-2023
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3653 OF 2023
IN
CRIMINAL APPEAL NO. 878 OF 2023
Karbhari Shivram Bhume,
Age: 42 years, Occu: Agriculturist,
R/o. Adgaon, Taluka Phulambri,
District Aurangabad. ... 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. Ravindra Narwade Patil, Advocate for Respondent No.2.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 18.12.2023
Pronounced on : 20.12.2023
ORDER [ABHAY S. WAGHWASE, J.] :
1. Instant application is at the behest of convict for offence under
Sections 376 (2)(n) and 506 of the Indian Penal Code [IPC] by virtue
of judgment passed by learned Special Judge (POCSO), Aurangabad
in Special Case (POCSO) No. 160/2017 dated 22.08.2023 and
prayers are for suspension of sentence and grant of bail by invoking
Section 389 of the Code of Criminal Procedure [Cr.P.C.].
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2. In support of relief, learned counsel for the applicant would
point out that prosecution case is based on testimonies of in all 9
witnesses. He pointed out that victim alleged rape at the hands of
present applicant, however, according to him, there is no clinching
evidence in that regard. He also doubted the version of prosecutrix as,
according to him, she had also named two other persons for raping
her previously. He further submitted that victim has mentioned about
several and repeated sexual encounters with those two persons also.
That, only on detection of pregnancy, report is lodged and crime is
registered. He would further submit that except DNA evidence, there
is no other incriminating material. He emphasized that in spite of
charge under the Protection of Children from Sexual Offences Act,
2012 [POCSO Act], other accused including applicant are acquitted
from said charge and learned trial court has not accepted prosecution
version that victim was minor. Therefore, according to him, applicant
has a strong case in appeal filed herewith bearing Criminal Appeal
No. 878 of 2023 which, according to him, would take much more
time to be heard and decided. Hence, he prays for suspension of
sentence and grant of bail.
3. Instant application is strongly opposed by learned APP as well
as learned counsel for the victim. According to both of them, offence
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is serious. Forensic evidence has confirmed involvement of present
applicant. He is found to be the biological father of the child delivered
by victim and taking into account gravity of the offence, application is
sought to be rejected.
4. Heard both sides respectively.
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
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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
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
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(2007) 11 SCC 160, culled out following propositions in para 33 of
the judgment which is as under:
"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
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in only such cases in which circumstances and reasons exist to grant
such relief. Ultimately, it all depends on the facts and circumstances
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.
8. Keeping in mind above legal position, if we prima facie go
through the case in hand, it seems that in all 3 persons were
chargesheeted by Wadod Bazar Police Station for offence under
Sections 376(2)(n), 506 of IPC and Sections 4 and 6 of POCSO Act.
We are informed that out of three, one being juvenile, is dealt
separately and present applicant and another accused, namely, Kishor
were made to face trial before Special Court, Aurangabad. It seems
from the operative part of the order that accused Kishor and present
applicant are both acquitted from charge under Sections 4 and 6 of
POCSO Act, however present applicant is held guilty only for offence
under Section 376(2)(n) and 506 of IPC and sentenced to suffer
imprisonment for life.
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9. Here, on prima facie consideration it is emerging that in FIR,
initially victim has named acquitted accused Kishor for raping her
four-five times. Thereafter she has claimed that she was raped by
juvenile four-five times after issuing threats to kill. Present applicant
is named for raping her by taking her in tur crop in his field. She has
alleged that he also issued threats to kill by pushing her in the well
and he also raped her four-five times. It is further emerging that only
on complaint of pain in the stomach, she was referred to medical
examination during which it was revealed that she is four to five
months pregnant and thereafter law seems to have been set into
motion. Learned trial Judge seems to have accepted prosecution
version primarily on the positive DNA report.
10. Prima facie it also appears that victim is already married and
she seems to have admitted that she was of marriageable age. Thus,
here it is seen that report is lodged only on detection of pregnancy.
Resultantly, we are of the considered opinion that taking into account
the above crucial aspects and the above discussed law, relief as
prayed deserves to be granted. Hence, we proceed to pass the
following order:
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ORDER
I. The application stands allowed.
II. The substantive sentence imposed on the applicant in Special
Case (POCSO) No.160/2017 by learned Special Judge (POCSO),
Aurangabad on 22.08.2023 stands suspended till final hearing
and disposal of Criminal Appeal No. 878 of 2023.
III. The applicant Karbhari Shivram Bhume be released on P.R. of
Rs.50,000/- (Rupees fifty thousand only) with two solvent
sureties of Rs.25,000/- (Rupees twenty five thousand Only)
each.
IV. The applicant shall not commit any criminal activity.
V. The applicant shall remain present before the learned trial Judge
once in six months, till final hearing and disposal of the appeal,
commencing from the date he tenders bail papers and thereafter,
the trial Judge to fix dates for his subsequent appearances.
VI. In case of two consecutive defaults on the part of the applicant to
remain present before the trial court, the trial court to inform
this court about the same and in that eventuality, the
prosecution would be at liberty to file an application for
cancellation of the bail granted to the applicant.
VII. Bail before the trial court.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
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