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2022 DIGILAW 2356 (BOM)

Francis Cruz v. State of Goa

2022-11-09

M.S.SONAK

body2022
JUDGMENT M. S. Sonak, J. - Heard Mr. Agni, learned counsel for the Appellant/Applicant and Mr. P. Faldessai, learned Additional Public Prosecutor for the State. 2. Mr. Faldessai, at the very outset invites the Court's attention to pages 2, 4 and 10 of the impugned judgment and order dtd. 19/10/2022 by which the Appellant/Applicant has been convicted and sentenced. 3. The Court Superintendent is directed to immediately redact the name of PW1 from the certified copy attached to the memo of appeal. 4. Mr. Agni and Mr. Faldessai state that they will undertake the same exercise in so far as the copies in their possession are concerned. Registrar (Judicial) is directed to immediately bring to the notice of the learned Additional Sessions Judge (FTC)-2 at Panaji, that the name of PW1 (victim) appears at pages 2, 4 and 10 of the impugned order. The learned Additional Sessions Judge should then take immediate steps to redact this name in the original order as also the order uploaded on the website. The proper record must however be maintained about the name confidentially. These directions must be complied with forthwith. 5. The Appellant/Applicant has been convicted and sentenced under Sec. 376 of IPC to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.50, 000.00, and in default of payment of fine he would have to undergo simple imprisonment of two months. 6. Mr. Agni submits that the prosecution case, even if accepted in its entirety, suggests consensual relationship spread over a considerable period of about four months. He submits that there was not even clear allegation about promise to marry. He points out that there is no consideration of such promise being genuine. He submits that in circumstances similar to those alleged by the prosecution, the Hon'ble Supreme Court has granted relief to the accused person including by way of quashing of FIR. He relies on Pramod Suryabhan Pawar Vs The State of Maharashtra and Anr 2019(9) SCC 608 , Maheshwar Tigga Vs The State of Jharkhand 2020 10 SCC 108 and Uday Vs State of Karnataka 2003 (4) SCC 46 , in support of his contentions. 7. Mr. Agni further submits that the Appellant/Applicant was enlarged on bail during the trial. He points out that there is no allegation of Appellant/Applicant having violated any of the terms and conditions subject to which he was enlarged on bail. 8. 7. Mr. Agni further submits that the Appellant/Applicant was enlarged on bail during the trial. He points out that there is no allegation of Appellant/Applicant having violated any of the terms and conditions subject to which he was enlarged on bail. 8. Mr. Faldessai states that the Appellant/Applicant has now been convicted and therefore, different parameters would apply. He submits that the Appellant/Applicant can no longer rely on the presumption of innocence. 9. Having considered the rival contentions and perused the impugned judgment and order, I think that a case has been made out for suspension of sentence and enlargement of the Appellant/Applicant on bail, no doubt, subject to certain terms and conditions. 10. The relationship between the Appellant/Applicant and the victim continued about four months. Both the Appellant/Applicant as well as the victim were married and Mr. Agni pointed out that both of them had certain marital discord with their respective spouses. The charge framed against the accused alleges that the Appellant/Applicant falsely made the victim to believe that he would be staying with her forever. At least in the charge, there is no allegation about promise to marry. There are allegations about the accused taking the victim's ATM card and withdrawing her salary and misappropriating the same. However, there is no conviction on this latter aspect. 11. Considering the above circumstances and the law in the decisions relied upon by Mr. Agni, a case is made out for suspension of sentence and enlarging the Appellant/Applicant on bail. 12. Mr. Agni pointed out that the Appellant/Applicant is a Government servant, working with the Public Works Department. He submitted that if the sentence is not suspended, then, in all probabilities, the Appellant/Applicant might have to face suspension from service. 13. Upon consideration of all the above factors though, not the factor about the Appellant/Applicant being a Government servant, the sentence of imprisonment is hereby suspended pending the final disposal of the appeal. The Appellant/Applicant shall now be released on bail subject to his furnishing a personal bond and one surety in an amount of Rs.30, 000.00. The bond to be furnished to the satisfaction of Superintendent of Central Jail, Colvale. The surety shall be to the satisfaction of the Registrar (Judicial) of this Court. 14. Mr. The Appellant/Applicant shall now be released on bail subject to his furnishing a personal bond and one surety in an amount of Rs.30, 000.00. The bond to be furnished to the satisfaction of Superintendent of Central Jail, Colvale. The surety shall be to the satisfaction of the Registrar (Judicial) of this Court. 14. Mr. Agni states that the Appellant/Applicant, without prejudice to his rights and contentions in this appeal will deposit the fine amount of Rs.50, 000.00 within four weeks from today in this Court. 15. Since the appeal is against the conviction, the same is hereby admitted. 16. Registry to take necessary steps to call for records and proceedings and prepare paper book. 17. Mr. Agni states that the paper book charges will be positively deposited within two weeks from today. 18. The Appellant/Applicant must remain present at the time of final hearing of the appeal, including in particular at the time of pronouncement of the judgment in appeal. 19. Criminal Misc. Application No.680 of 2022 (Filing No.) seeking for suspension of sentence and bail is disposed of. 20. All concerned to act on the authenticated copy of this order.