Anuj Arjun Pawar v. The State of Maharashtra

1/7 907 ia 1350 of 2019.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION INTERIM APPLICATION NO.1350 OF 2019 IN CRIMINAL APPEAL NO.68 OF 2020 Anuj Arun Pawar Aged : 21 years, R/o.Gardi, Chandani Chowk, Taluka – Khanapur, District – Sangli …. Applicant/ Appellant Versus The State of Maharashtra Through Vita Police Station, Sangli, District – Sangli. …. Respondent ….. Mr.Amit Mane, Advocate for the Applicant/Appellant. Mrs.M.M. Deshmukh, APP for Respondent – State. ….. CORAM : BHARATI DANGRE & MANJUSHA DESHPANDE, JJ. DATED : 10th JULY 2024. P.C. The applicant herein, is original accused no.2 in Sessions Case No.29 of 2013. The applicant has been convicted in by the Additional Sessions Judge–2, Sangli in Sessions Case No.29 of 2013 vide judgment and order dated 16th July, 2019, for the offences punishable under Sections 302, 376(2)(g) and 201 read with 34 of the Indian Penal Code, 1860 (IPC) and sentenced to suffer rigorous imprisonment for life till natural 2/7 907 ia 1350 of 2019.doc death of the convict without any beneft of remission and to pay fne of Rs.10,000/,, in default, of payment of fne, to suffer rigorous imprisonment for six months; he has been further sentenced to suffer rigorous imprisonment for life and to pay fne of Rs.10,000/, each and in default of payment of fne, to suffer rigorous imprisonment for six months for offence punishable under Section 376(2)(g) read with Section 34 of the IPC. Further punishment under Section 201 read with Section 34 of the IPC been imposed for commission of offence of disappearance of evidence with punishment of rigorous imprisonment for 7 years and to pay fne of Rs.5,000/,. The applicant has challenged the said judgment and order by way of appeal and the present application is fled for suspension of sentence during the pendency of the said Appeal. The applicant has raised various grounds in the present application and contended that considering that the applicant is in jail since past 7 years, he may be released on bail by suspending sentence of conviction. The case of the prosecution in the Sessions case in short was that, the victim aged 19 years girl, was working as a sales girl in a cloth shop at village Vita. She left her house on 12th October, 2012, around 09:30 a.m. for attending her job. However, on 16th October, 2012, around 04:30 p.m. dead body of the victim girl was found in a well. P.W. 1 who is the informant and brother of the victim girl was informed about the victim girl being found, and he was summoned in the hospital. When he went to the Rural Hospital, he saw the dead body of his sister. When he saw his sister, the clothes on her body were worn 3/7 907 ia 1350 of 2019.doc inside–out condition. After the postmortem, he was informed that his sister's death has occurred prior to three days before her body was found. Her death was not due to drowning, but due to throttling. Hence, on 17th December, 2012, P.W.1 lodged report against unknown accused for committing murder of his sister. Prior to registration of report by the P.W.1, Sudam Baburao Chavan P.W.11 who is the father of the victim had also fled an Accidental Death Report (ADR) on 16th October, 2012, under Section 174 of Cr.P.C. On report of the incident by informant P.W.No.1, and after registration of FIR, further investigation was carried out. During investigation, supplementary statement of informant was recorded, and, thereafter applicant accused no.2 Anuj was arrested on 18th October, 2012. On 18th October, 2012, accused no.1 gave a memorandum statement Exhibit–47 showing his willingness to show the spot of incident. The clothes of accused nos.2 to 4 which were on their person at the time of the incident were seized. All the accused were referred for medical examination on 20th June, 2012. The blood samples and semen samples of the accused persons were collected. After investigation was completed, chargesheet was fled and the trial was conducted. The prosecution has led the evidence in order to establish the guilt of accused persons. Since there was no eye witness to the said incident, the entire case was based on circumstantial evidence. The prosecution has examined P.W.1, who is the informant and brother of the victim girl who has supported the prosecution case. P.W.11 is 4/7 907 ia 1350 of 2019.doc the father who in his deposition had stated that victim girl had affair with accused no.1, but, the victim girl inspite of being warned to cut off her relation with accused no.1, she continued to meet him. This was disclosed by P.W.11 to his employer P.W.8. P.W.11 has requested P.W.8 to convince the victim and persuade her not to meet accused no.1. P.W.8 also deposed that he has met the victim while in company of the accused persons. When he enquired about them, the victim had told him, that they were his friends. P.W.8 has thereafter seen the victim girl with the accused persons on 13th October, 2012, when he alongwith his friend Manoj Pawar was returning from Gardi. He further confrms that it was arouond 07:30 p.m. to 08:45 p.m., when he saw the victim girl alongwith accused nos.1 to 3 and Sagar Hattekar (deceased accused) at Pawai–tek. Thereafter, the victim girl was not seen by anybody and her dead body was found in the well in decomposed condition. Therefore, P.W.8 is the person who had last seen the victim girl alongwith all the accused persons. The Doctor has been examined by the prosecution in order to prove the offence of rape committed by the accused persons. The report of the Chemical Analyser (CA) including 13 articles seized from the scene of crime, clothes of deceased victim girl and blood and semen samples of all the accused at Exhibit–27, is proved. The testimony of P.W.13 clearly reveals that death of victim girl was due to throttling and thereafter her dead body was drowned in well. From the testimony of P.W.13, it is evident that the victim girl was subjected to sexual assault by more than one person. The said report fortifes the aspect of sexual violence. 5/7 907 ia 1350 of 2019.doc The applicant herein has fled application claiming that since his arrest, he is in prison for a long time, he has a very good case on merit, and he is likely to succeed in the Appeal. According to the applicant, who is accused no.2, the prosecution has not proved the case beyond reasonable doubt. According to him, he is innocent, and he has been wrongly involved in the present case. We have gone through the judgment and from the evidence which is produced by the prosecution, the calpability of the present applicant is proved. P.W.8 has in his evidence has categorically stated that he has seen the victim alongwith the present applicant, and, his three friends who were there on two motorcycles on the Gardi road near the water tank. The incriminating evidence points heavily towards the guilt of accused. It is the case of the applicant that he cannot be held responsible for a girl who has gone missing since 12th October, 2012, and later on, her body has been recovered from a well on 16th October, 2012. According to the applicant, the learned judge has failed to consider that all the witnesses are partially interested witnesses and relatives of the victim girl. The prosecution has not examined material and independent witness. The prosecution has failed to establish the chain of evidence beyond reasonable doubt. There are discrepancies in the sequence of occurrence. 6/7 907 ia 1350 of 2019.doc We have heard the advocate for the applicant and the learned APP. We have also gone through the judgment passed by the learned Additional Sessions Judge–2, Sangli in Sessions Case No.29 of 2013. So far as the role of the applicant is concerned, frstly, the P.W.8 who is the employer of the father of the victim has in his testimony deposed that he had seen the applicant on 13th October, 2012 about 07:30 to 08:45 p.m., with the victim girl, and the other accused on two motor cycles. He further deposed that till he got down from his motor cycle, the accused persons had already left. P.W.8 had seen the present applicant alongwith the victim girl just before the alleged incident of rape. The applicant has been identifed by P.W.5, Dananjay Pandurang Mahamuni, who is manager of Nilam Wine Shop. According to him, he has identifed the applicant to be a person who had purchased liquor bottle from his shop. He also identifed the applicant in the Court. According to him, he could remember the applicant accused because of his baldness. One more witness P.W.9 has identifed the applicant, who is the owner of the Medical shop, namely, "Madhuri Medicals". According to him, the present applicant had purchased one water bottle and one packet of condom from his Medical shop. The applicant was identifed by P.W.9 in the Court to be the same person who had purchased the water bottle and condoms from his Medical shop. The spot panchanama Exhibit– 47 supports the involvement of the applicant as the condoms, an empty water bottle alongwith empty bottle of liquor were 7/7 907 ia 1350 of 2019.doc seized from the spot, which connects the applicant with the offence. The recovery of the said three articles is supported by P.W.Nos.5 and 9 and the applicant has been identifed by P.W.8. The applicant has fled application claiming that since his arrest, he is in prison for a long time, he has a very good case on merit, and he is likely to succeed in the Appeal. According to the applicant, the prosecution has not proved the case beyond reasonable doubt. According to him, he is innocent, and he has been wrongly involved in the present case. We fnd that considering the evidence on record, prima facie we do not fnd that there are chances of the applicant succeeding in the Appeal. Considering the gravity of the offence i.e. rape committed by four persons, including the applicant, at a time on a young girl of 19 years, by administering her liquor, and, thereafter throttling her and drowning her in well, is not only inhuman but heinous. Therefore, we do not fnd that this is a case for suspension of sentence, and hence, the application of the applicant is rejected and disposed off accordingly. Since the applicant is in custody immediately after his arrest i.e. since last 7 years, hearing of the Appeal is expedited. (MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)