The Bombay High Court allowed an appeal filed against the rejection of application of regular bail by the Sessions Judge [Special Court], vide order dated 12.01.2023 in Criminal Bail Application. The Court observed that the existence of injury is not a must for establishing the guilt, however, that is one of the aspects which can be taken into account while deciding bail application.
Brief Facts:
The appellant/accused was arrested for the offence punishable under Sections 376[3], 450, and 506[2] of the Indian Penal Code, Section 4 of the Protection of Children from Sexual Offences Act, 2012, and Sections 3[1][w][i], 3[1][[w][ii], 3[2][v], 3[2][va] of the Scheduled Castes and Scheduled Tribes [Prevention of Atrocity] Act, 1989. The aforesaid crime was registered at the instance of the informant girl aged 14 years. It was her contention that through one friend, the appellant contacted the victim and then they had telephonic conversation. On 02.10.2022, in the afternoon the accused arrived at her house and, by giving a threat, had forcible sexual intercourse. Since the victim was in fear, she kept mum. On 06.10.2022, she felt uneasy while in School and hence, disclosed the things to the teacher. Thereafter, she also disclosed the incident to her parents on which report came to be lodged on 06.10.2022.
Initially, the appellant applied for bail to the Special Court. The appellant claimed bail on the ground of innocence, false implication, inadequacy of material, delay in the lodgment of the first information report, absence of injury on the person of the victim, and that he himself has shown readiness to abide by the conditions which may be imposed while granting bail. The application was rejected by the Court and therefore, this appeal.
Contentions of the Appellant:
The learned counsel for the Appellant submitted that though the injury on the hymen was present, it was explained by the medical officer that there was old multiple tear present, no inflammation, and no redness. On this count, it was argued that in the absence of injuries, it is difficult to believe the informant’s contention that actually there was sexual intercourse between them.
Contentions of the Respondent:
The learned counsel for the Respondent submitted that the medical examination has been conducted after 4 days and thus, there is less possibility of finding injury on the person of the victim.
Observations of the Court:
The Court noted that during the medical examination, conducted after 4 days, there were no injuries on the person of the victim. The existence of injury is not a must for establishing the guilt, however, that is one of the aspects which can be taken into account while deciding bail application.
The Court observed that the alleged incident took place on 02.10.2022, however, the victim did not disclose anything till she felt uneasy while in school. It assumes significance that despite forceful sexual intercourse by a stranger, she did not ventilate the grievance. The submission in this regard requires consideration. There may be a possibility of tampering, however, care can be taken thereof by imposing certain stringent conditions.
The decision of the Court:
The Bombay High Court, allowing the appeal, held that the appellant/accused be released on bail.
Case Title: Vaibhav vs State of Maharashtra & Anr.
Coram: Hon’ble Justice Vinay Joshi and Hon’ble Justice Valmiki SA Menezes
Case no.: CRIMINAL APPEAL No. 259/2023
Advocate for the Appellant: Mr. Y.N. Sambre
Advocate for the Respondent: Mr. S.S. Doifode, and Mrs. S. Saware
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