Surekha Shankar Pawar Alias Surekha Laxman Rathod And ANR v. The State Of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO.1573 OF 2016 IN CRIMINAL APPEAL NO.829 OF 2016 Surekha Shankar Pawar @ Suresh Laxman Rathod & Anr.

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Applicants V/s.

The State of Maharashtra ...

Respondent .....

Mr.Rupesh A. Zade, Advocate for the Applicant. Ms.A.A.Takalkar, APP for the Respondent/State. ....

CORAM :

A. M. BADAR J.

DATED :

25th JANUARY 2017.

P.C . :

This is an application for suspension of sentence and releasing the applicants/accused on bail during pendency of the appeal filed by them before this Court. Applicant No.1 Surekha Shankar Pawar is original accused No.1 whereas applicant No.2 Hyder Mustafa Ali is original accused No.2 before the trial Court. The learned trial Court found the applicant No.1 Surekha Shankar Pawar guilty of the offence punishable under Section 17 read with Section 6 of the Protection of Children from Sexual Offences Act ("POCSO Act" for the sake of brevity) and sentenced her to suffer rigorous imprisonment for 10 years apart from directing her to pay 1/5

fine of Rs.1,000/­ and in default to undergo further imprisonment for two months. The applicant No.2 Hyder is found guilty of the offence punishable under Section 6 of the POCSO Act and he is also awarded same sentence as is given to the applicant No.1. The applicant No.2 in addition was also found to be guilty of offence punishable under Section 376 of the Indian Penal Code and both of them were also found to be guilty of offences punishable under Section 363, 366A read with Section 34 of the Indian Penal Code. However, no separate sentence was imposed on them for these offences.

I have heard the learned Advocate for the applicants, as well as the learned Additional Public Prosecutor for the respondent/State. The learned Additional Public Prosecutor opposed the application by contending that the victim is a minor girl and by making her unconscious she was kidnapped by both the applicants for forcing and seducing her to illicit intercourse with applicant No.2 Hyder and others and consequently she was raped by the applicant No.2 Hyder. Therefore, according to the learned Additional Public Prosecutor, applicants are not entitled to be released on bail during pendency of the appeal. I have considered the rival submission and also perused impugned Judgment and Order, as well as deposition of witnesses. Even if evidence of P.W.No.4 Sanjiv Tukaram Kumbhar 2/5

headmaster is accepted to hold the date of birth of the minor female victim (P.W.No.1) as 13/08/1999, then also on the alleged date of kidnapping, the P.W.No.1 was 15 years seven months and few days old. The minor female victim (P.W.No.1) in her cross­ examination has candidly accepted the fact that she was working in the MIDC of Kurkumbh and she has disclosed to her employer her age as 18 years.

Be that as it may, prosecution case as reflected from the version of the minor female victim (P.W.No.1) is to the effect that applicant/accused No.1 Surekha Pawar is her near relative and they both used to go for work and return from the work together. On 11/03/2015, the applicant No.1 Surekha Pawar took her to the railway station, made her to sit in train and thereafter by putting the corner of her Saree on the face made her unconscious for a period of one to two hours. Thereafter, she was taken to Calcutta and during that journey applicant No.2 Hyder was accompanied them. The version of the victim girl further reveals that they all stayed in the lodge at Darjeeling and thereafter to village Malda where she performed marriage with applicant No.2 Hyder. Then the couple as per version of minor female victim stayed in rented room.

It is seen from the evidence of P.W.No.7 Dinesh Kulkarni, Investigating Officer that in the month of April 2015, he 3/5

trace out the mobile tower location and on that basis went to Siliguri and found the couple staying in slum area. This is how, applicant No.2 Hyder came to be arrested in company of the minor female victim.

In the teeth of this evidence, the minor female victim of the crime in question is stating that she was forcibly taken by applicants and under the spell of threat of applicants, she could not raise any hue and cry. She admitted that the railway station was crowded and a lot of passengers were travelling in the train in which she undertook the journey.

In the backdrop of this material, at the time of hearing it will have to be seen whether the prosecutrix was a minor female and whether the sexual intercourse by the applicant No.2 with the minor female victim was amounting to rape . This is so because, version of the prosecutrix reveals that she married with the applicant No.2 Hyder.

For all these reasons and as hearing of the appeal will take its own time, both applicants deserve liberty and as such the order :

i) The application is allowed.

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ii) The substantive sentence of imprisonment imposed on both the applicants is suspended and they are directed to be released on bail on executing PR bond of Rs.15,000/­ and on furnishing surety in the like amount.

(A. M. BADAR J.) 5/5