In a bail application by an applicant convicted under IPC and POCSO on plea of suspension of sentence, the High Court rejected the prayer. Citing material including DNA of deceased on accused's shirt and soil match, the Court held evidence sufficient for rejection.
Prayer for bail by suspending sentence dismissed. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.82 OF 2019 IN
CRIMINAL APPEAL NO. 267 OF 2018
Rahul Gajanan Tumbada … Applicant Versus State of Maharashtra … Respondent
Mr. S.S. Redekar a/w Y.B. Rawool for the Applicant. Ms. M.H. Mhatre, APP for the Respondent – State.
CORAM : B.P. DHARMADHIKARI & SMT. SWAPNA JOSHI, JJ. DATE : 7th JUNE, 2019.
P.C. :
1 Applicant convicted for the offence punishable under sections 302 and 376 of Indian Penal Code and sections 4 and 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is before this Court for his release on bail by suspending sentence.
2 The learned counsel fairly states that though initially the trial Court had not granted bail, when PW13 turned hostile and did not support prosecution, the applicant was released on bail. However, he has been taken in custody after delivery of impugned judgment. According to him, considering the total period spent in jail, the applicant has put in about 3½ years of imprisonment.
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3 On merits, he points out that the trial Court itself has discarded the theory of last seen since PW13 did not support. Similarly, Test Identification Parade has also been disbelieved because it was conducted more than 5 months after arrest of accused and no independent panch witness was examined. PW13 who is claimed to have identified the applicant in TIP, turned hostile and did not support TIP. When identification could not be established and last seen has also failed, the learned counsel argued that in a case based on circumstantial evidence conviction itself is unwarranted.
4 Without prejudice, he adds that the prosecution claims that DNA of deceased is found on pant of accused and soil sample collected from alleged scene of offence has matched with soil found on shirt of accused.
5 He urges that in first document prepared on spot at the time of seizure of these clothes, there is no mention of any stains, blood stains or soil stains. Hence, the report of C.A. on this aspect cannot be relied upon.
6 Lastly, it is pointed out that some tire-marks are noticed at alleged spot and it is claimed that those marks tally with tires of motorcycle used by accused. Motorcycle was not produced during trial, its connection with offence was used by accused has not been proved and the fact that tires on that motorcycle were sent to Forensic Science Laboratory for examination is also not established. Therefore, this circumstance is not
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proved.
7 The learned APP is relying upon testimony of PW12 to urge that TIP has been established. She points out that PW13 has in that TIP identified accused but then in Court, when she entered the witness box after about two years, she refused to identify the accused. She further states that mechanic who removed tires from motorcycle and Investigating Officer forwarding it for further examination has also been examined. Lastly, she points out that after seizure of clothes they were sealed on spot and there is no grievance of any tempering with the same, hence, finding of soil stains or blood stains on those clothes cannot be questioned by accused.
8 We are considering the prayer for suspension of sentence and at this stage, we cannot analysis the entire evidence threadbare. The facts show that shirt and pant on person of accused were seized by Police and sealed immediately. When the same were forwarded to chemical analyzer, he found blood stains and also DNA of deceased on shirt of accused. Not only this, he also found that soil on the spot of crime matched with soil found on pant of accused.
9 We find this material sufficient to reject the prayer for bail. Application is therefore dismissed. No costs.
(SMT. SWAPNA JOSHI, J.)
(B.P. DHARMADHIKARI, J.)
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3 issues framed by the court
Whether the applicant is entitled to bail by suspending his sentence given the DNA evidence and soil match.
Whether the rejection of PCAs best mode of action is sufficient to reject the bail application.
Whether the available evidence is sufficient to reject the prayer for bail.
2 provisions across 2 enactments
Rahul Gajanan Tumbada
State of Maharashtra
B.P. DHARMADHIKARI
SWAPNA JOSHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
