2024:BHC-AUG:10443
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901.Cri.Application-2068-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2068 OF 2024
IN
CRIMINAL APPEAL NO. 495 OF 2024
NAGESH VITHAL GUTTE
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. Joydeep Chatterji
APP for Respondents/State : Mr. C.V. Bhadane
...
CORAM : SHAILESH P. BRAHME, J.
{ VACATION COURT }
DATE : 31st MAY 2024.
Per Court :
. Heard learned Counsel Mr. Joydeep Chatterji for applicant
and learned APP Mr. C.V. Bhadane for respondent/State.
2. Applicant seeks suspension of substantive sentence
awarded by learned Additional Sessions Judge-I, Nanded in
Sessions Case No.37/2017 vide judgment and order dated
20.05.2024. Applicant has preferred an appeal challenging
conviction and sentence which is admitted. Applicant is convicted
for offence under Section 33 and 37 of Juvenile Justice (Care
and Protection of Children) Act 2015 and for offence under
Section 370(i)(e)(iv) of the Indian Penal Code. He is sentenced
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to suffer rigorous imprisonment for six months and to pay fine of
Rs.10,000/- and in default to payment of fine to suffer simple
imprisonment for two months for offence under Section 33 and
37 of the Act of 2015. He is further sentenced to suffer rigorous
imprisonment for ten years and to pay fine of Rs.1,00,000/-. In
default of payment of fine he is to suffer rigorous imprisonment
for about three years for offence under Section 370(i)(e)(iv) of
the IPC.
3. Applicant is seeking suspension of sentence on merits as
well as on medical grounds for which certain medical papers are
placed on record. Applicant has paid amount of fine and receipt
to that effect is placed on record. On the date of conviction he is
taken into custody. Applicant has placed on record relevant
deposition and the record for considering his application.
Learned APP has also not raised any objection regarding the
sufficiency of the record and prepared to go on with the hearing
of the application.
4. Learned Counsel Mr. Joydeep Chatterji submits that
applicant was enlarged on bail during the course of trial and the
order is placed on record. It is submitted that no offence can be
made out punishable under Section 370(i)(e)(iv), as the basic
ingredients of Section 370 have not been fulfilled. No case is
made out for exploitation transfer, fraud or any deception.
Learned Counsel would heavily rely upon the deposition of PW-6
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– Dr. Waseeuddin Mujawar and especially the admission in the
cross-examination to buttress that it was not a case of any fraud
or deception and the presence of the infant was duly informed
on 19.04.2016. It is further submitted that it has been recorded
by learned Judge that it was not a case of actual physical
exploitation of the infant in question. It is being submitted that
prima facie it is a case of acquittal and at the most it would be
an offence under Sections 33 and 34 of the Act of 2015.
5. Learned Counsel for the applicant seeks to rely upon the
serious physical condition of the applicant as the applicant has
history since 2017 of epilepsy. The medical papers of civil
hospital Nanded are pressed into service to demonstrate that
applicant has history of epilepsy since last eight years and
immediately after surrender he was found to be serious and
required to be admitted in the hospital. Considering the physical
condition he is entitled to be released on bail by suspending
sentence.
6. Learned APP opposes the submissions of the applicant. It is
submitted that wife of the applicant is facing an investigation in
C.R. No. 94/2016 registered with Tardev Police Station, wherein
it is alleged that an infant was found to have been sold to a
couple for Rs.1,80,000/- and the same infant was found to be
trafficked at the children home in question at Nanded. Learned
APP would submit that there is cogent evidence, statement
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under Section 164 and further documentary evidence to bring
home the guilt of the accused. He would submit that learned
Judge is justified in convicting and awarding sentence to the
applicant. He would submit that accused is indulged into serious
offence and no renieancy can be shown by suspending the
sentence.
7. I have considered the submissions of the parties and also
gone through the relevant record of the Sessions Case
No.37/2017. Though learned Counsel for the applicant has relied
upon order dated 29.08.2016 passed in Criminal Application No.
4627/2016, enlarging applicant on bail during trial, the
observations and the findings recorded therein cannot enure to
the benefit of the applicant. The applicant has suffered
conviction and sentence after fulfledged trial. Therefore interim
order of bail may not be useful to consider the claim for
suspension. I propose to look into the relevant material placed
on record and the findings recorded by learned Judge while
awarding conviction and sentence.
8. It is the case of the prosecution that applicant is found to
have surreptitiously indulged in the offence of Trafficking an
infant of 9 to 10 months old. When the members of the Child
Welfare Committee visited Smt. Sunita Utteshishigruhar, CIDCO,
Nanded which is registered children home, on 20.04.2016, it was
found that one female infant was found without there being any
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record. Committee inspected relevant documents and the
registers and found that intake of children home was ten
children and an additional infant was found to have been
unaccounted. Thereafter law was settled to motion and
investigation was conducted. Prosecution examined 11
witnesses. The defence of the applicant was that a day prior to
visit of the Child Welfare Committee that is on 19.04.2016,
infant in question was left with the children home. Applicant had
duly informed one of the members of the Committee regarding
presence of the infant in question and he was directed to
produce infant on the next date.
9. I have gone through the judgment impugned and relevant
deposition of the witnesses. It reveals that PW Nos.7 to 10 did
not support the prosecution and they were required to be cross-
examined. The statements of PW Nos. 7 to 10 were recorded
under Section 164 of the Cr.P.C.
10. It is the defence of the applicant that the infant which was
found to be unaccounted was received by children home on
19.04.2016. Infant was being left by unmarried mother at the
children home. Applicant informed telephonically to PW No.6
who was one of the members of Child Welfare Committee
regarding receipt of the infant and he was informed on preceding
night. The applicant was being instructed to produce the child on
the next date and accordingly infant was kept with the home and
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produced on the next date at the time of visit of the Committee.
11. The examination in chief of PW No.6 shows that witness
had received a telephonic call from the applicant that an infant
was brought to the children home. His cross-examination
discloses that he had instructed applicant to produce a child on
the next day. Infant was brought in the children home a night
earlier and was required to be kept there overnight. PW No.6 is
the member of the Child Welfare Committee. There is a candid
admission that there was a telephonic talk between him and the
applicant on 19.04.2016.
12. I have considered statement under Section 313 of Cr.P.C. It
reflects the defence of the applicant. Though learned trial Judge
disbelieved PW No.6, prima facie there is material to show that
applicant had instructed one of the members of the Child
Welfare Committee and on his instruction it was kept at children
home in question. It is a matter of record that PW Nos.7 to 10
did not support the prosecution case. They are caretaker, nurse
and social worker. I have also considered the appreciation of
deposition of PW No.10. She is a social worker and she is said to
have received phone call from the accused in the night at 08:00
to 09:00 pm., informing that the child was received in the
children home. On the next day, when she was about to register
infant, police personnel visited and conducted inspection. The
said witness is elaborately cross-examined as she did not
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support the prosecution. PW No.10 was disbelieved because
there is a discrepancy of date in the deposition. The purport of
the depositions and the probative value of the witnesses which
are hostile needs to be stayed at the hearing of the appeal,
however prima facie there is a material to show that infant was
received a day prior to the incident. I have considered
ingredients of Section 370(1)(e)(iv). It is not a prosecution case
that infant in question is exploited either psychically or sexually.
On the contrary it has been recorded by learned Judge in
paragraph no.96 that there was no exploitation, physical
exploitation of the child in question. It is further not the case of
transfer of the infant so far as fraud and deception on the part of
the applicant is concerned there is no sufficient evidence to
disclose that applicant is indulged in any fraud or deception. On
the contrary the deposition of PW No.6 and 10 indicate that
accused has informed the concerned authority for having
received an infant a day earlier to the incident in question.
Therefore at this juncture it is doubtful whether prima facie
there is any material to satisfy the ingredients of offence under
Section 370 of IPC. I have also gone through the conclusions
recorded by learned Sessions Judge in paragraph no.85 of the
impugned judgment. Prima facie it reveals that there is no
material to indicate that infant in question was trafficked from
Tardev and brought at children home in question at Nanded. It
is a matter of record that offence bearing C.R. No.94/1996 was
registered with Tardev Police Station in respect of illegal
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transaction of illegal adoption of an infant to Mr. and Mrs. Pawar.
By intervention of the Family Court at Bandra, interim custody
was entrusted to the alleged adoptive parents. It further reveals
that the proceeding of quashment of FIR are pending before
Principal Seat and investigation has been stayed by the interim
orders.
13. The findings recorded by learned Judge in paragraph no.96
discloses that the offences of human trafficking were on and
learned Judge felt that it was alarming situation that several
children gone missing everyday. Taking judicial notice of the
scenario in the society and inference was drawn by the learned
Judge that the applicant having been indulged in the trafficking
an infant. Prima facie I am of the view that there is no cogent
material to show cause of the offence registered at Tardev,
Mumbai bearing C.R. No.94/2016 and the unaccounted presence
of the infant in question at children home at Nanded. The
fulfledged hearing is required to appreciate the finding recorded
in this regard.
14. Though the applicant is convicted for offences under
Section 370(1)(e)(iv) and sentenced to suffer rigorous
imprisonment for ten years, I have reservation for sustainability
of the conviction and sentence. Applicant is also sentenced for
offence under Section 33 and 34 which are comparatively of the
lesser gravity. Those offences are punishable for imprisonment
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for _____. The applicant was released on bail and there is no
report of any misuse of liberty. Therefore I find that a case is
made out to exercise jurisdiction under Section 389 of Cr.P.C. to
suspend the sentence.
15. The applicant was taken into custody on 20.05.2024. He
has placed on record certain medical papers to show history of
epilepsy. The record is of private hospital. A discharge summary
of Shri. Ganga Hospital Nanded discloses seizure disorder of the
applicant and his hospitalization for 24.04.2024 to 25.04.2024.
On 20.05.2024, the applicant was required to refer to civil
hospital Nanded for medical checkup. Case papers show history
of epilepsy for last eight years and occurrence of history of
epilepsy, seizure on 20.05.2024. It also refers the appraisal of
seriousness of the ailment of the applicant to son in law of the
applicant namely Ramesh Shankarrao Khade. Case papers shows
that applicant suffered episode of epilepsy at 03:00 am in the
morning. There is no reason to doubt the medical papers of the
civil hospital. Applicant is the patient of the epilepsy and is not
keeping good health. Therefore on medical ground also I am of
the considered view that applicant needs to be enlarged on bail.
Hence I passed the following order.
(Operative Order)
SHAILESH P. BRAHME
JUDGE
NaJeeb...