Rahul Dilip Dhotre vs The State Of Maharashtra And Anr
2021 Latest Caselaw 10725 Bom

                                              1/8                       APEAL-106-2021.doc9




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO. 106 OF 2021

XYZ                                                     ...Appellant

         Versus

1.       The State of Maharashtra
         At the instance of Nigadi Police Station,
         Pune.

2.       ABC                                            ...Respondents
                                ...
Mr. Jahanara Sarkhot i/b. Mr. Ramji T. Kotali for appellant.
Mr. J.P. Yagnik, APP for State.
Mr. Akshay Deshmukh for Respondent No. 2.
                                ...

                                        CORAM : S. S. SHINDE &
                                                N. J. JAMADAR, JJ.

RESERVED ON : 8th JULY, 2021.

DELIVERED ON: 10th AUGUST, 2021.

JUDGMENT [PER S.S. SHINDE, J.]:

1. Admit.

2. On admission, the learned APP waives services of notice

on behalf of Respondent-State, and with the consent of learned

counsel appearing for the parties, the matter is taken up for

hearing.

3. At the outset it is required to be noted that since the

allegations leveled by the informant are in respect of the alleged

Bhagyawant Punde

2/8 APEAL-106-2021.doc9

sexual assault identity of the appellant and informant needs to be

concealed, hence, the appellant is referred to as "XYZ" and the

informant is referred to as "ABC". The Registry is directed to

maintain the record accordingly.

4. The present appeal is directed against the order dated

11.08.2020 passed by the learned Additional Sessions Judge, Pune,

below Exhibit-1 in Criminal Bail Application No. 1237/2020 thereby

rejecting the bail application of the appellant.

5. The prosecution story in brief is as under:-

The mother of the victim aged about 12 years, lodged a

report mentioning therein that on 29.02.2020 the victim went to

school. At about 9.42 am, the first informant went to her regular

work to earn livelihood for survival and at work place she received a

phone call informing that three person beat the victim girl. The first

informant reached at her house and upon inquiry with the victim,

victim girl told that at about 9.30 am during recess, she went at one

shop in front of her school for bringing some project articles. At that

time, one rickshaw came and appellant and other accused pulled

the victim girl inside the said rickshaw. One of the accused namely

Ajay was driving the said rickshaw. The appellant and accused

Kailash pressed the mouth of victim girl and threatened her that

Bhagyawant Punde

3/8 APEAL-106-2021.doc9

they will kill her mother i.e. the first informant. Accused Kailash

touched her chest and the present appellant tried to remove her

panty. Thereafter, appellant and both co-accused pushed her from

that rickshaw. The victim girl narrated the incident to one person

and watchman on duty at Pavale ground.

6. Learned counsel appearing for the appellant submits

that the FIR filed by the Respondent No. 2 is out of vengeance,

inasmuch as, there is previous enmity between the parties and as a

result the parties have filed complaints against each other. As per

the prosecution case the incident had taken place on 29.02.2020 at

around 9.30 on 29.02.2020, the school was up to 9.30 am only.

Therefore, there is no question of having recess on said date. If the

alleged offence had taken place on 29.02.2020, the victim girl ought

to have suffered some pain in her genitals. However, on the day of

alleged incident the victim girl did not suffer any pain and she never

stated in her statements dated 29.02.2020 and 10.03.2020 about

penetrative sexual assault. It is also clear from the CCTV footage

that the victim girl was not thrown out of rickshaw as alleged, but

she herself jumped from the rickshaw. The victim girl mentioned the

time of incident as 9.30 am and as per CCTV footage the time is

9.19 am, it clearly proves that the alleged incident is concocted

story.

Bhagyawant Punde





                                         4/8                         APEAL-106-2021.doc9

7. It is further submitted that the first informant and her

family members used to quarrel with family members of the

appellant/accused and neighbors. Therefore, family members and

neighbors have filed various complaints with Nigadi Police Station,

Pimpri-Chinchwad, Pune, against the misconduct and misbehavior

of the first informant and her family members. It is also submitted

by the learned counsel for the appellant that the first informant and

her family members are in habit of filing false cases and no such

incident had taken place and even due to previous enmity, the

appellant has been falsely implicated in the alleged offences.

8. Learned counsel for the appellant submits that till date

the charge is not framed and there is no possibility of framing

charge and commencing trial within a reasonable period. It is

submitted that the medical evidence does not support the

prosecution case. Learned counsel for the appellant invited our

attention to the grounds taken in the appeal memo and other

documents and statements of witnesses which are placed on record

and submits that there is no material evidence collected by the

investigating officer against the appellant and there are chances of

acquittal of the appellant, therefore, the appellant is entitled to be

released on bail.

Bhagyawant Punde





                                                  5/8                             APEAL-106-2021.doc9




9.                 On     the     other      hand,     learned      APP       appearing          for

Respondent-State and Mr. Akshay Deshmukh, the learned counsel

for Respondent No. 2 jointly submits that the appellant has

committed serious and heinous offences and therefore, the learned

Additional Sessions Judge, Pune, has rightly rejected the

application filed by the appellant for bail.

10. We have appreciated the rival contentions and with the

able assistance of learned counsel for the appellant, learned APP

appearing for Respondent-State and learned counsel for Respondent

No. 2, we have carefully perused the grounds taken in the appeal

memo and annexures thereto. It appears that the FIR has been

lodged on the same day of the incident. It appears that the incident

had taken place in between 9.00 am to 10.00 am on the relevant

date. One Madhav Jagdambe, who was working as security guard at

Hanuman Gym, Yamuna Nagar, Nigdi, Pune, has stated in his

statement that one girl i.e. the victim girl came to him and narrated

the incident at about 9.38 am. There are other witnesses whose

statements are recorded including grandmother of the victim girl,

wherein she stated that at about 7.00 am, the victim girl left the

house and thereafter, after few hours she came to know about the

alleged incident. There are other witnesses also whose statements

Bhagyawant Punde

6/8 APEAL-106-2021.doc9

have been recorded by the investigating officer. The first informant

who is the mother of victim girl has narrated the incident in the FIR.

In Column No. 25 of the medical certificate issued by the doctor, it

is mentioned as under:

History and clinical examination is consistent with vaginal penetration with age of hymenal injury within 24 hours of time of examination. Injuries mentioned in general physical examination are simple in nature, of age within 24 hours from time of examination.

11. The said medical report is singed by the doctor, who has

examined the victim girl. It appears that the medical examination of

the victim girl was done on 29.02.2020, at about 10.00 pm, on the

very same day of incident.

12. From the perusal of statement of victim girl, the

statement of mother of victim i.e. the first informant, other

accompaniments of the chargesheet and in particular the medical

report, it is abundantly clear that there is sufficient material

including medical report which prima facie indicates the

involvement of the appellant in the alleged offences. From the

perusal of the order passed by the learned Sessions Judge, Pune, it

appears that the Court after adverting to the material collected by

the proseuction observed that the victim, victim's family and

Bhagyawant Punde

7/8 APEAL-106-2021.doc9

accused are residing in same vicinity and in case the appellant is

released on bail, the appellant may tamper with the prosecution

evidence/witnesses. It is not necessary to elaborate the reasons.

Suffice it to say that, the FIR was lodged with promptitude and on

very same day the victim girl was taken for medical examination

and the opinion of doctor lend support to the prosecution case. The

case in hand is not a simple case, but the age of the victim girl at

the relevant time was 12 years and also she belongs to SC/ST

community. The outcome of such offences alleged to have been

committed by the appellant has impact upon the society.

The Sessions Court, Pune in the impugned order

observed that the medical certificate prima facie shows involvement

of the appellant, there are injuries on private and other parts of

body of victim, the applicant and victim are residing in same locality

and there are previous complaints, and, rightly rejected the

application for bail filed by the appellant. It is also relevant to

mention that the two co- accused are absconding.

13. In view of discussion in foregoing paragraphs, we are of

the opinion that the reliefs claimed in the appeal cannot be granted.

Merely, because previous complaints against each other i.e. accused

and victim are pending, is no ground for entertaining the present

Bhagyawant Punde

8/8 APEAL-106-2021.doc9

appeal, when this Court is satisfied that there is prima facie

sufficient material on record, in the nature of substantial evidence,

which corroborates the medical evidence. Hence, the appeal is

devoid of any merits and same stands dismissed.

14. The observations made hereinabove are prima facie in

nature and confined to the adjudication of the present appeal only.

15. We direct the trial Court to frame the charge, if already

not framed, and conclude the trial within nine months from today.

In case, the trial is not concluded within nine months from today,

liberty to the appellant to renew the prayer for grant of bail.

( N. J. JAMADAR, J.)                                (S. S. SHINDE, J.)




Bhagyawant Punde