Dismissed

Mahesh Tarachand Suryawanshi v. the State of Mah

Bombay HC26 Sept 2012APPLN/3357/2012

Case brief

AI extract

What is this about?

The High Court of Bombay, Aurangabad disposed of a criminal application for bail filed by an appellant convicted of rape of a minor. The court rejected the reliance on short-term sentence precedents due to the victim's age and nature of the offence, holding there was incriminating evidence and bail was inappropriate.

What did the court decide?

The criminal application for bail seeking suspension of sentence was dismissed.

Mahesh Tarachand Suryawanshi Vs the State of Mah — Bail and Remand | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 3357 OF 2012 In APEAL/499/2012

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MAHESH TARACHAND SURYAWANSHI VERSUS

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THE STATE OF MAH

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Advocate for Applicant : Mr Deshmukh Sachin S. APP for Respondents: Mr N.R.Shaikh

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CORAM : SHRIHARI P. DAVARE, J. Dated: September 26, 2012

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PER COURT :-

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Heard learned respective counsel for the parties.

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This is an application preferred by the applicant/original accused no.1 seeking bail, pending hearing and final disposal of criminal appeal No. 499/2012, suspending the substantive sentence imposed upon him. It appears that the applicant was convicted for the offence p/u/s 376 of Indian Penal Code and was sentenced to suffer R.I. for seven years and to pay fine of Rs.3,000/-, in default to suffer further R.I. for three months by judgment and order dated 13.7.2012 rendered by learned Additional Sessions Judge, Hingoli in Sessions Trial No.69/2008. The applicant assailed said conviction and sentence by filing criminal appeal no.499/2012, which has been admitted by this court and, same is pending for final hearing.

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It is alleged that victim minor girl namely Ujjwala was induced and was taken away from her lawful guardianship and was kidnapped and thereafter the applicant / accused no.1 had committed rape upon her on 9.1.2008

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AAA/-

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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at village Phutphal (M.P.)

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On the background of the aforesaid allegations, learned counsel for the applicant submitted that although said victim girl was missing from 24.10.2007, missing report came to be filed after substantial delay i.e. on 6.1.2008 and, prosecution has not given any convincing explanation for the said delay. He also canvassed that the testimony of prosecutrix Ujwalla is self explanatory and said testimony cannot be believed considering the medical evidence on record. As regards the medical evidence, he submitted that PW 13 Dr. Anjali Patil has categorically stated in her deposition that she has not given any finding as to whether patient Ujjwala was raped or not and, no injuries were found on her private part, breast or back. According to her, if a person is forcibly raped, there is possibility of sustaining injuries but, she found no injuries on the person of the patient Ujwalla either old or fresh. Hence, learned counsel for the applicant submitted that medical evidence is not in consonance with the allegations made by the victim girl.

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According to learned counsel for applicant, the applicant was on bail during the trial and substantive sentence awarded to him is for the period of seven years which is for the fixed period of limited duration and same can be construed as short term sentence in view of the Judicial Pronouncement in the case of Bhagwan Rama Shinde and others Vs. State of Gujarat reported at (1999) 4 Supreme Court Cases 421 and 2}. Kiran Kumar Vs. State of M.P. reported at (2001) 9 Supreme Court Cases 211. He further submitted that the applicant has already deposited fine amount before the learned trial court and, submitted that the applicant deserves to be enlarged on bail during the pendency of appeal and,

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AAA/-

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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therefore urged that present application be allowed.

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Learned APP countered the said arguments and opposed present application vehemently and submitted that rape is a legal term and not the medical term. He submitted that the testimony of prosecutrix PW 4 Ujwalla is self explanatory and she has categorically stated how rape was committed upon her by the applicant herein and said testimony has not been demolished by the cross examination. He further submitted that date of birth of victim girl is 17.10.1990 and alleged offence was committed on 9.10.2008 and therefore, victim girl was minor on the date of offence. Besides, he submitted that this is not the stage to re-appreciate the evidence and therefore, urged that present application be dismissed.

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I have perused bail application, notes of evidence and important documents supplied by the learned counsel for the applicant and, also perused impugned judgment and order and heard rival submissions advanced by learned counsel for the parties.

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At the outset, to substantiate the charge levelled against the applicant and co-accused prosecution has examined as many as 13 witnesses. Testimony of PW 4 Ujwalla/victim girl is of prime importance. A bare perusal of the said testimony discloses that the applicant committed rape upon said victim girl. Moreover, she has given details how the applicant committed rape upon her specifically. Moreover, apparently said testimony of the victim girl has

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AAA/-

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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not been shaken in the cross examination. Hence, apparently said testimony deserves to be the incriminating piece of evidence against the applicant herein.

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In so far as medical evidence is concerned, PW 12 Dr. Rupali Shiradkar stated in her deposition that victim Ujwala was about 17 years who

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was referred to Civil Hospital Hingoli and, said patient had given history that she was raped for the first time on 9.1.2008 at about 10.20 p.m. Her medical examination discloses that :

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Labia – majora and minora was well developed and congested. Fourchette – torn. Posterior commisser – torn. Vagina – Hyman – torn (old). Vagina admitting two fingers. Vagina found roomy. Vulva – roomy and congested.

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She also stated in her cross examination that if there is forcible intercourse, one may get or may not get injury on the back and there is no mention in medical papers regarding other injuries found or not. As regards testimony of PW 13 Dr. Anjali Patil she has stated that she examined said patient and said patient had given history of rape first time occurred on 9.1.2008 and results of medical examination are almost similar to the results of medical examination of PW 12 Dr. Rupali. Although she has stated in her cross examination that she found no injuries on the person of patient Ujwala either old or fresh and, she cannot give findings whether Ujwala was raped or not. She admitted that she examined patient Ujwala after five days of the incident and, said aspect cannot be overlooked.

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AAA/-

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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As regards submission made by learned counsel for applicant in respect of short term sentence and relied upon the judicial pronouncements (supra), there is no dispute about the ratio laid down in the aforesaid cases, but apparently, there are exceptional circumstances. In the present case considering the age of the victim girl and specific evidence of the prosecutrix in respect of rape committed upon her by the applicant herein and therefore,

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present case is distinguishable from the said judicial pronouncement. Besides, I may note here that this is not the stage to re-appreciate the evidence.

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In the circumstances, having comprehensive view of the matter, prima facie, I am of the opinion that there is incriminating evidence against the applicant and, therefore, this is not a fit case to enlarge the applicant on bail during the pendency of appeal and, therefore, present application deserves to be rejected.

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In the result, present application lacks merit and therefore, same stands dismissed.

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( SHRIHARI P. DAVARE, J. )

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AAA/-

Mahesh Tarachand Suryawanshi v. the State of Mah

Case brief

What is this about?

What did the court decide?

Mahesh Tarachand Suryawanshi v. the State of Mah

Case brief

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What did the court decide?

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