Bombay High Court
Omkar Annasaheb Gaikwad vs The State Of Maharashtra on 26 April, 2021
Bench: S.S. Jadhav
28.ba788.2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 788 OF 2020
Omkar Annasaheb Gaikwad. ... Applicant
V/s.
State of Maharashtra & anr. ... Respondents.
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Mr. A.P. Mundargi, Sr. Counsel a/w. Mr. Meghdeep Oak i/b. Mr.
Hrishikesh Mundargi, advocate for applicant.
Mr. Ketan A. Dhavale, advocate appointed for respondent/complainant.
Mr. K.V. Saste, APP for State.
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CORAM : SMT. SADHANA S. JADHAV.
DATE : APRIL 26, 2021.
(Through Video Conferencing)
P.C.
1 Heard the learned Counsel for the applicant, learned
Counsel appointed for respondent/complainant and the learned APP
for State.
2 This is an application under section 439 of the Code of
Criminal Procedure, 1973 seeking enlargement on bail. The applicant
herein is arrested on 15/11/2019 in Crime No. 415 of 2019 registered
at Phaltan Police Station for offence punishable under section 376(3),
354(D), 506 of the Indian Penal Code and under section 4, 12 of the
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POCSO Act.
3 On 15/11/2019 Ms. X lodged report at the police station
alleging therein that prosecutrix is studying in 10th standard. Since her
father is posted in Animal Husbandry Department at Bhor, she is
residing with her grand-mother. That, at the time of Ganesh Festival,
she had met the present applicant. Her friend Anushka had informed
her that the present applicant is in love with Ms. X and thereafter, they
have exchanged their phone numbers. Her grand-mother had noticed
that she was chatting with the applicant and therefore, she had also
complained to the mother of the applicant and had warned Ms. X that
she shall not contact the applicant anymore. According to her, on
3/6/2019 he had called upon her and had complained about not being
in touch with him. In October, 2019, she had left for her classes at
about 7 a.m. The applicant had allegedly taken her in his Swift car
bearing No. MH-11- 7254. Thereafter, she had left her bicycle near
the classes. According to her, since he had threatened that if she did
not oblige, he would commit suicide, she accompanied him and there,
he had forced himself upon her in his car. The said incident was
repeated on 11/11/2019. Her friend Vaibhavi had informed her
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grand-mother that she had not attended the classes and thereafter, she
disclosed the whole incident to her grand-mother who gave her
courage to lodge report.
4 She was referred for medical examination. There is no
evidence of sexual assault. The investigation is completed and charge-
sheet is filed.
5 The applicant had placed on record a letter written by the
complainant to her friend Alfiya which was placed on record. By an
order dated 23/10/2020, this Court (Coram: Bharati Dangre, J) had
directed the learned APP to take instructions from the Investigating
Officer in respect of the said letter. The letter was handed over to the
applicant by Alfiya. The Investigating Officer recorded statement of
the victim on 20/12/2020. Ms. X has agreed that 2 days prior to
lodging of the FIR, she had written the said letter to Alfiya and had
asked her to give the said letter to him. However, inadvertently, she
had given the letter directly to the applicant instead of giving it to
Alfiya. She had not disclosed about the same to her family members as
she was scared. The said statement is also signed by her grand-
mother Mrs. Khatate.
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6 Learned Counsel Mr. Ketan Dhavale was appointed by the
Court to espouse the cause of the applicant. He has vehemently
opposed to grant of bail. According to him, statement under section
164 of the Code of Criminal Procedure, 1973 was also recorded by the
complainant and it is consistent with her statement under section 161
of the Code of Criminal Procedure, 1973. He has placed implicit
reliance upon the Judgment of the Apex Court in Satish Kumar
Jayantilal Dabgar v/s. State of Gujarat reported in (2015) 7 SCC 359
and has stated that the consent of minor cannot be taken into
consideration as it is not a valid consent. The Apex Court observed
thus :
"It is considered that a minor is incapable of thinking rationally
and giving any consent. For this reason, whether it is civil law or
criminal law, the consent of a minor is not treated as valid
consent. Here the provision is concerning a girl child who is not
only minor but less than 16 years of age. A minor girl can be
easily lured into giving consent for such an act without
understanding the implications thereof. Such a consent,
therefore, is treated as not an informed consent given after
understanding the pros and cons as well as consequences of the
intended action. Therefore, as a necessary corollary, duty is cast
on the other person in not taking advantage of the so-called
consent given by a girl who is less than 16 years of age."
7 In the present case, taking into consideration the contents
of the letter written to Alfia and the absence of any medical evidence,
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it is doubtful as to whether the incident as narrated in the first
information report had ever occurred or the said statement was given
to the police under coercion of the parents and family members. The
same can be determined only at the time of trial. In any case, it
appears that an young boy of 19 years old (applicant) is in love with
15 years old girl. The contents of the letter shows that the
complainant was fully aware of the steps being taken by her. The
applicant is in custody for more than one and half years. Hence, his
further incarceration is unwarranted. The applicant deserves to be
enlarged on bail.
8 The Learned Counsel Mr. Dhavale has assisted the Court
to the best of his capacity. He is entitled to the professional fees as per
law.
9 Hence, following order is passed:
ORDER
(i) The application is allowed.
(ii) The applicant be enlarged on bail in Crime No. 415 of
2019 registered at Phaltan City Police Station on furnishing P.R. Bond
in the sum of Rs. 25,000/- and one or more sureties in the like
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amount.
(iii) The applicant shall not tamper with the evidence.
10 The application is disposed of accordingly.
(SMT. SADHANA S. JADHAV, J)
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