Atul S/O Vishwanath Hatwar vs State Of Mah. Thr. Pso Ps Ramtek ...
2021 Latest Caselaw 11651 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR.


                           CRIMINAL APPEAL NO. 279/2021


          Atul S/o Vishwanath Hatwar,
          Aged about 25 years, Occ. Private
          R/o. Dudhala Kavadak, Tah. Ramtek,
          Nagpur
                                                                  .... APPELLANT

                                   // VERSUS //

 1]       State of Maharashtra,
          Through P.S.O., P.S. Ramtek,
          Nagpur

 2]       Achal S/o Sudhkar Salame,
          Aged 15 years, Occ. Private,
          Through her Legal Guardian
          Chhayabai Sudhakar Salame
          Aged about Major, Occ. Housewife,
          R/o. Ward No. 17, Sarakha, Near
          Hand Pump, Borda, Kanhan, Pipri,
          Tah. Ramtek, Nagpur

                                                           .... RESPONDENT(S)

  *************************************************************************
                  Shri P.S. Jaiswal, Advocate for the appellant
                Shri V.A. Thakare, APP for the respondent/State
  *************************************************************************

                         CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

AUGUST 24, 2021

ORAL JUDGMENT : (PER:- V.M. DESHPANDE, J.)

ANSARI

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1] Heard Shri P.S. Jaiswal, learned advocate for the appellant and

Shri V.A. Thakare, learned APP for the respondent no. 1 / State. ADMIT.

Taken up for hearing forthwith.

2] This is an appeal under Section 14-A of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act, 1989 challenging the

order passed by the learned Judge, Special Court, Nagpur dated 10/06/2021

whereby the learned Judge rejected the application filed on behalf of the

appellant under Section 439 of the Code of Criminal Procedure for grant of

bail.

3] Amongst others, three submissions were made by the learned

advocate for the appellant (1) that there is delay in lodging the first information

report; (2) the co-accused are granted bail and the present appellant was

required to be released on bail on the ground of parity; and (3) it is impossible

if the statement of the victim is perused that the appellant took her on his

motorcycle to Khindsi jungle from the crowded portion of the city Ramtek and

still she did not raise any hue and cry.

4] It is trite law that the case of the prosecution cannot be thrown in

a dustbin merely because there is delay in lodging the first information report.

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It is always open for the prosecution including the victim to offer explanation

during the course of the trial as to why there was a delay in lodging the first

information report. If the explanation is offered during the trial, it is the duty

of the learned Judge before whom the trial will be conducted to appreciate the

same in accordance with law. Therefore, merely because there is a delay, the

entire prosecution case cannot be doubted and that cannot be the reason for

grant of bail in favour of the appellant specially when the Court is satisfied that

there is other material available against the appellant.

5] The appellant is accused no. 1 in this prosecution case. The first

information report is lodged by the victim herself. It is dated 03/01/2021 in

respect of the incident dated 29/12/2020. In the report, she has disclosed her

date of birth as 22/03/2006 and the incident in question is of 29/12/2020.

That clearly shows that on the day of incident, the victim was only aged about

14 years and thus she is a child within the meaning of the provisions of the

Protection Of Children From Sexual Offences Act, 2012 (for short "POCSO

Act").

6] As per the report given by the victim herself on 29/12/2020, on

being asked by her mother, she went to flour mill. However, she noticed that it

was crowded. Therefore, she went to a square (naka) for bringing some books.

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When she was near the Adivasi hostel, that time she noticed the appellant -

Atul Hatwar was standing along with his motorcycle. When she was passing

from him, he came in front and pushed her bicycle and then by force, she was

taken to Khindsi jungle on his motorcycle. It is stated in the first information

report itself that she was weeping, however, she could not notice anybody. The

report further recites that after reaching in the jungle, the appellant called co-

accused - Dhiraj Meharkule by giving a phone call. After 5-10 minutes, co-

accused - Dhiraj Meharkule, Saurabh Meharkule, Harshal Meharkule,

Homdas Meharkule came there on two different motorcycles. Thereafter, they

encircled the victim. Co-accused - Dhiraj Meharkule and Harshal Meharkule

removed all the clothes of the victim. Thereafter, the present appellant

removed his pant. Thereafter, the appellant firstly committed rape on her.

Thereafter, co-accused - Saurabh Meharkule put his finger in the vagina of the

victim and thereafter co-accused - Harshal, Homdas and Dhiraj they all

forcefully committed rape on the victim. After their lust was fulfilled, they

asked the victim to put her clothes on and then she was dropped near the

Adivasi hostel. It is stated in the first information report that she immediately

reported the matter to her mother. However, since she was frightened, she

immediately did not reach the police station for lodging the report. It is stated

in the first information report that on 01/01/2020 when the victim and her

parents had been to Borada, that time her mother narrated the incident to

ANSARI

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Sunita Salame (aunt of the victim). Thereafter, her family instilled confidence

in the mind of the victim and report was lodged. Since the report was

disclosing cognizable offence, the Investigating Officer registered a crime vide

Crime No. 02/2021 for the offences punishable under Sections 363, 376-D,

376-A read with Section 34 of the Indian Penal Code and under Sections 4

and 5-G of the POCSO Act and since the victim belonging to 'Gond' Tribe as

stated in the first information report itself, the provisions of Atrocities Act were

also attracted. The Investigating Officer thereafter took all the necessary steps

to conduct the investigation and the charge-sheet is filed.

7] The medical certificate would show that the victim was subjected

to physical violence as the doctor found biting on the left side of her breast.

The doctor also found that her hymen was torn. Learned advocate for the

appellant submitted that there were no injuries on the person of the victim. We

have already observed in the preceding line of this paragraph that the doctor

found biting on her left breast and mark of violence. Therefore, we are not

ready to accept the submission made by learned advocate for the appellant in

that behalf.

8] The girl is only 14 years of age. She was forcefully lifted by the

present appellant on his motorcycle and then she was taken to jungle.

 ANSARI




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Thereafter, the appellant called the co-accused and all the co-accused

committed rape on her. Though one of the co-accused according to the first

information report has put his finger in the vagina of the victim, even though

he will be liable for the prosecution under Section 3 of the POCSO Act since

he has touched the vagina of a child by his finger.

9] Learned advocate for the appellant invited our attention to the

order passed by the learned Special Judge granting bail in favour of the co-

accused. We have gone through those orders. The perusal of those orders

would show that at the time of considering the application for bail, the learned

Judge first considered the case as if he is deciding the case on merits after the

evidence is recorded. In our view, such approach on the part of the learned

Judge was not correct. The learned Judge ought to have seen that in the first

information report itself the victim has given the account in respect of the overt

act played by each of the accused. The perusal of the orders would show that

the learned Judge has disbelieved the victim girl at the stage of considering the

bail applications and granted bail to the co-accused. In that view of the matter,

we are not ready to accept the submission made on behalf of the appellant. Not

only that while dismissing this appeal, we are issuing notice to those co-accused

as to why there bail granted by the learned Judge should not be cancelled,

because of specific allegations against them in F.I.R. itself.

 ANSARI




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 10]              We would like to note here in respect of the statement made on

affidavit by the Investigating Agency in para no. 6 of the reply which shows

that the appellant has already faced the prosecution vide Crime No. 07/2015

for the offences punishable under Sections 376-D & 363 of the Indian Penal

Code and under Section 6 of the POCSO Act and also under the Atrocities

Act. However, the reply fairly states that in the appeal filed by him before this

Court, he was acquitted.

 11]              In the result, we pass the following order :-



                   a)          The appeal is dismissed.



                   b)          Issue notice to the co-accused - Dhiraj Jayram Meharkule,

Saurabh Diliprav Meharkule, Harshal Raju Meharkule &

Homdas Tarachand Meharkule as to why bail granted to

them by the learned Special Judge, Nagpur in respect of

the Crime No. 02/2021 registered with the Police Station

Ramtek should not be cancelled. Notice to the co-accused

is made returnable after three weeks.

 ANSARI




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                   c)          The Superintendent of Police, Nagpur (Rural) is directed

to ensure service of notice on the co-accused prior to the

returnable date.

                   (JUDGE)                                        (JUDGE)




 ANSARI