Bombay High Court
Shankar Kisan Gurav vs State Of Maharashtra on 30 March, 2023
Bench: Bharati Dangre
1/3 13 IA 4345-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 4345 OF 2022
IN
CRIMINAL APPEAL (ST) No.21094 OF 2022
WITH
INTERIM APPLICATION NO. 4346 OF 2022
IN
CRIMINAL APPEAL (ST) No.21094 OF 2022
Shankar Kisan Gurav .. Applicant/Appellant
Versus
The State of Maharashtra .. Respondent
...
Mr. Rajesh Khobragade a/w Akash Tayade for the applicant/
Appellant.
Ms. Anamika Malhotra, APP for the State.
Mr. Kokate, PSI, Vartaknagar, police station.
CORAM: BHARATI DANGRE, J.
DATED : 30th MARCH 2023
P.C:-
IA No. 4346/2022
1 By the present application the applicant seek
condonation of delay of 16 days in filing the appeal, assailing the
judgment and order dated 14/09/2022 passed by the Sessions Judge
Thane, in Session Case No. 311 of 2016.
2 Heard the learned counsel for the applicant and perused
the application.
The applicant has candidly stated that he was not having
sufficient financial means to appoint an Advocate and prefer an
appeal as his financial condition was extremely bad. Therefore, he
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took some time to arrange for the money and this has occasioned the
delay in filing the appeal.
3 The explanation offered being satisfactory and bonafide
the application stands allowed in terms of prayer clause 'a'.
4 Interim Application No. 4346 of 2022 stands disposed
off.
Criminal Appeal (St)No. 21094 of 2022
5 Appeal Admit.
6 Call for record and proceedings.
Interim Application No. 4345 of 2022
7 By the present application the applicant seek suspension
of sentence imposed upon him under the impugned judgment on
recording a finding of guilt under Section 376 and 420 of IPC.
Heard the learned counsel for the applicant and the
learned APP. On perusal of the evidence of the prosecutrix PW-1, it
is evident that she has stated that she got acquainted with the accused
and a love affair developed between them. Thereafter, he proposed
her for marriage and he establish sexual relationship with her on
several occasions and presicely has deposed in the Court that he used
to commit sexual relations with her 3 to 4 times in the month, but he
used to avoid performance of the marriage. Apart from this, he also
threatened her not to marry anyone.
8 The succinct distinction between the promise to marriage
before the physcial relationship is established and failure to fullfill
the promise has been clearly culled down by the Apex Court in case
of Pramond Suryabhan Pawar Vs. State of Maharashtra and anr, and
where it has specifically held that the thin line of distinction is
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required to be looked into while the consent accorded by the
prosecutrix is a free consent and whether an offence under Section
376 is made out.
9 Apparently the prosecutrix has attend sufficient majority
to understand the consequence of the act and whether the consent
accorded by her was under some misconception is a matter for
determination at the time of the appeal. As the learned counsel for the
appellant had submitted that the sexual relationship established was
consensual on account of love relationship maintained between them.
10 In any case since the point deserve consideration at the
stage of the appeal, I deem it appropriate to suspend the sentence and
release the applicant on bail by furnishing PR bond to the extent of
Rs. 25,000/- with one or two sureties of the like amount.
11 Interim Application No. 4345 of 2022 is disposed off.
( SMT. BHARATI DANGRE, J.)
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