Dismissed

Mr Lalmand Nabhik Chaudhary Presently Lodged in Central Jail Aguada v. State through Mapusa Police Station

Bombay HC14 Mar 2008CRMA/54/2008

Case brief

AI extract

What is this about?

Criminal Misc. Application filed by a convicted rape accused seeking bail by way of suspension of sentence. The Single Judge rejected the plea, holding that prior bail during trial does not justify post-conviction release, especially given the heinous nature of rape against one's own child. The bail application was dismissed.

What did the court decide?

The application for discharge on bail by way of suspension of sentence was dismissed.

Mr Lalmand Nabhik Chaudhary Presently Lodged in Central Jail… — Bail and Remand | Bombay HC (2008)

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL MISC. APPLICATION NO.54/2008

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Mr. Lalmand Nabhik Chaudhary, son of Satyanarayan, of full age, r/o. House No.405, Ganga Nagar, Near Saraswat School, Khorlim, Mapusa, Goa presently undergoing sentence at the Central Jail Aguada. ........ Applicant. V/s. State (through the Mapusa Police Station) ........ Respondent.

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Mr. G.M. Kanekar, Advocate for the applicant.

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Ms. W. Coutinho, Public Prosecutor for the State.

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CORAM : R.M.S. KHANDEPARKAR, J. DATE : 14TH MARCH, 2008.

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ORAL ORDER :

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This is an application for bail by the accused who has been convicted for the offence punishable under Sections 376 of the Indian Penal Code and has been sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs.60,000/- and in default, to undergo, Rigorous Imprisonment for one year and has also been convicted under Section 506 of IPC and ordered to pay a fine of Rs.500/- and, in default, to undergo

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Rigorous Imprisonment for one month. The conviction is based on detailed analysis of the the evidence which was produced before the learned Addl. Sessions Judge, Panaji.

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The prosecution examined 12 witnesses, including the victim girl. Though, initially, the victim girl did not support the complaint, however, subsequently, she explained to the Court that while her testimony was being recorded on the previous occasion she was under pressure and, therefore, she could not tell the truth and, therefore, she narrated all the incidents, including the acts on the part of the applicant-accused which disclosed the offence under Section 376 of IPC and, therefore, the applicant-accused has been convicted, as stated above.

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It is the case of the applicant that he was arrested on 24.1.2006 and during the trial he was released on bail on 29.9.06 and he had not violated any of the terms and the conditions of the order of grant of bail. He is permanent resident at Mapusa for more than 20 years and has minor children of the age of 4, 6, 8, 9, 10, 11, 13 and 17 years. The application for bail is being strenuously opposed to on behalf of the respondent stating that the applicant has not paid the fine ordered to be paid under the impugned order and he is not native from Goa and he hails from Banaras U.P. and in

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case, he is released bail, there is every possibility of absconding to avoid the punishment imposed upon him by the trial Court.

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While reliance is sought to be placed on behalf of the applicantaccused in the decision of the learned Single Judge of the Kerala High Court in the matter of Jalaludeen A. vs. State of Kerala ., reported in 2007 Cri. L.J. 2047, the learned Public Prosecutor has sought to rely upon a decision of the Apex Court in the matter of Kishori Lal vs. Rupa and others., reported in 2004 AIR SCW 7409.

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Perusal of the record undoubtedly discloses that initially the victim girl was reluctant to narrate all the facts. However, subsequently, she explained to the trial Court that on the earlier occasion she could not tell the truth as she was worried about her three brothers and five sisters, and thinking that there would be nobody to look after them and to feed them, she had hesitated to tell the truth. She has then narrated the various facts which reveal the offending acts on the part of the applicant-accused constituting the offence under Section 376 IPC.

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Undisputedly, the applicant has 9 children, out of them 6 are girls and all those children are minor in age, except the victim girl. Considering

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the age of all these children disclosed in the application for bail itself, it is apparent that all these 9 children were born within a span of 13 years. Considering the conduct of the applicant-accused for which he has been convicted under Section 376 IPC and the fact that the conviction is based on the proof of commission of the offence of rape on his own daughter, in my considered opinion, it would not be proper to release the applicant-accused on bail at this stage.

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The decision of the learned Single Judge of the Kerala High Court has absolutely no application to the case in hand. That was in the facts of that case that the learned Single Judge had held that there was no justification for detaining the accused in jail, as during the trial he was already on bail and that was a case wherein it was found to be appropriate to suspend the sentence and to release the accused on bail. However, as rightly submitted by the learned P.P., merely because the applicant-accused was released on bail during the trial, that itself cannot be a justification for grant of bail after conviction of the accused. The Apex Court in Kishori Lal's case has clearly held that “The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during the trial loses significance when on completion of trial, the accused persons have been found guilty.

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The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail.”

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Considering the facts as stated above, I do not find any case having been made out for suspension of execution of the sentence and to release the applicant on bail in the case in hand.

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In the result, therefore, the application fails and is hereby

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dismissed.

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R.M.S. KHANDEPARKAR, J.

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ssm.

Mr Lalmand Nabhik Chaudhary Presently Lodged in Central Jail Aguada v. State through Mapusa Police Station

Case brief

What is this about?

What did the court decide?

Mr Lalmand Nabhik Chaudhary Presently Lodged in Central Jail Aguada v. State through Mapusa Police Station

Case brief

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What did the court decide?

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