PRAMOD LAXMIKANT UPADHYA Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an application for suspension of sentence and release of applicant / accused on bail during pendency of the appeal filed by him. The applicant / accused has been convicted of offences punishable under Sections 376 and 392 of the IPC. He has been sentenced to suffer rigorous imprisonment for 10 years apart from payment of fine of Rs.10,000/for the offence punishable under Sec. 376 of the IPC. For the offence punishable under Sec. 392 of the IPC, he has been sentenced to suffer rigorous imprisonment for 7 years apart from payment of fine of Rs. 5,000/.

(2.) Heard the learned advocate appearing for the applicant / accused. She argued that medical evidence adduced by the prosecution is not consistent with the version of the prosecution. She argued that evidence of PW14 Dr.Hemlata Pandey shows that the applicant / accused is a probable biter. She had examined the prosecutrix on 24th Jan. 2014. However, her evidence shows that the size of injury on the victim is more than the size noted by PW19 Dr.Chitwan Dubey. The learned advocate further argued that the fact that the brassiere of the prosecutrix was seized from her falsifies the story of bite marks on breast area of the prosecutrix. While the prosecutrix was wearing the brassiere, no injuries of bite marks can be there. There were no injury on the private part of the prosecutrix and this evidence shows that witnesses are lying. The learned advocate further argued that PW19 Dr.Chitwan Dubey has incorrectly stated the time of examination as well as facts regarding examination of the prosecutrix. Evidence of the victim (PW1) in paragraph 15 to the effect that she was taken to KEM Hospital negates the theory of PW14 Dr.Hemlata Pandey. Evidence of PW14 Dr.Hemlata Pandey shows that she had been to Seven Hills Hospital for examination of the victim. It is further argued that the CCTV footage as seen from the evidence of the Investigating Officer, is not the original footage. The original CCTV footage was in the hard disk which was not produced before the court, and therefore, evidence regarding CCTV footage is totally inadmissible. The learned advocate argued that the prosecutrix was left on the spot by a person named Hemant Gupta. However, this material witness is not examined by the prosecution. Though spot of incident is stated to have been shown by the brother of the victim, he is also not examined by the prosecution. With this, according to the learned advocate for the applicant / accused, there is no evidence to connect the applicant / accused with the crime in question, and therefore, he is entitled to be released on bail during pendency of the appeal filed by him.

(3.) The learned APP opposed the application by contending that there is evidence in the nature of extra judicial confession by the applicant / accused before PW13 Dr.Sachin Patil. The learned APP further argued that CCTV footage collected by the prosecution and proved before the trial court shows that watchman of the society i.e. the applicant / accused was in company of the victim and as he was posted to guard the residence of the society, it was not his business to be near the prosecutrix. It is argued that clothes of the applicant / accused were recovered at his instance from the meter room of the society and the cell phone of the victim was recovered at his instance from the Paradise society. Clothes of the victim were recovered from the nearby area. The forensic evidence is pointing out the guilt of the applicant / accused in as much as the soil found on clothes and belt of the applicant / accused is matching with the soil found on clothes of the victim of the offence. My attention is drawn to the evidence of PW21 Shashank Mishra to point out that during the relevant period, the applicant / accused was not within the premises of the buiding.