Sagar Ratan Shinde vs The State Of Maharashtra And Anr
2021 Latest Caselaw 11674 Bom

                                               1/8                      APEAL-545-2021 (J).doc




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 545 OF 2021

ABC                                                       ...APPELLANT

         Versus

1.       The State of Maharashtra
         Through Bazarpeth Police Station,
         F.I.R. No. I-64/2019

2.       XYZ                                              ...RESPONDENTS
                                     ...
Mr. Raju. D. Suryawanshi for appellant.
Ms. Ameeta Kuttikrishnan appointed for Respondent No. 2.
Ms. M.H. Mhatre, APP for State.
                                     ...

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

RESERVED ON : 5th AUGUST, 2021.

PRONOUNCED ON: 24th AUGUST, 2021.

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

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

leveled by the 2nd respondent against the appellant are in respect of the alleged

sexual assault, the identity of the appellant and 2 nd respondent needs to be

concealed, therefore, the appellant is referred to as "ABC" and 2 nd respondent

is referred to as "XYZ". The Registry is directed to maintain the record

accordingly.

Bhagyawant Punde, PA





                                           2/8                        APEAL-545-2021 (J).doc

2. Being aggrieved by an order dated 20.09.2019 passed by the

learned District Judge-1 and Additional Sessions Judge, Kalyan in Bail

Application below Exhibit-3 in Sessions Case No. 206 of 2019, the present

appeal is filed. By the impugned order, the prayer of the appellant to release

the appellant on bail has been turned down.

3. On 25.03.2019, the 2nd respondent lodged C.R. No. 64/2019

against the appellant for the offences punishable under Sections 376, 385 of

Indian Penal Code (for short "IPC") and Section 3(2)(V), 3(1)(W)(i)(ii) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(for short "said Act") and Section 67(A) of the Information of Technology Act,

2000. Pursuant to registration of said FIR on 29.03.2019, the appellant was

arrested. After investigation, on 24.05.2019 the police filed chargesheet

against the appellant. After filing of the chargesheet, on 17.06.2019, the

appellant preferred bail application, however by the impugned order the said

application was rejected.

4. Learned counsel appearing for the appellant submits that there

was consensual relationship between the appellant and 2 nd respondent. The

said consensual relationship was for a considerable period from 2013 till

lodging of the FIR, therefore, alleged offence under Section 376 of IPC is not

made out. The appellant never abused the 2 nd respondent on her cast,

Bhagyawant Punde, PA

3/8 APEAL-545-2021 (J).doc

therefore, there is no question of applying provisions of the said Act. The

appellant was ready to marry the 2 nd respondent, however, the 2nd respondent

refused to marry the appellant. The 2nd respondent was consenting party to the

alleged incident of rape, and therefore, no offence is made out under Section

376 of IPC. The investigation has already been completed and, therefore,

there is no need to detain the appellant in jail. Respondent No. 2 used to

extract money from the appellant. The Trial Court did not consider the

statement of Ms. Prajakata Bharat, wherein she has categorically stated that the

appellant and the 2nd respondent were happy when they met the said witness.

The 2nd respondent is an educated lady and working as police constable and,

therefore, she cannot allege that she does not know the effect of being party to

the consensual relationship. The appellant is in jail for a considerable period

and there are no chances of commencing the trial in near future. Learned

counsel invites our attention to the grounds taken in the appeal memo,

annexures thereto and submits that there is no substance in the prosecution

case and, therefore, the appellant deserves to be released on bail, during the

pendency of trial.

5. On the other hand, the learned APP appearing for Respondent-

State and Ms. Ameeta Kuttikrishnan, the learned counsel appointed to

represent the 2nd respondent, jointly submit that the allegations in the FIR

Bhagyawant Punde, PA

4/8 APEAL-545-2021 (J).doc

coupled with the statement of witnesses and incriminating material collected

during the course of investigation would make it abundantly clear that the

appellant has committed sexual assault without consent of the 2 nd respondent

under the threat and coercion that in case she refuses to continue the alleged

relationship with the appellant, he will expose the 2 nd respondent by

uploading her obscene photographs taken by him on facebook and whatsapp.

It is submitted that the appellant not only deserves to be prosecuted for the

offence under Section 376 of the IPC but also under the provision of said Act

and also under Section 67 of Information Technology Act, 2000. The

appellant threatened the 2nd respondent that he will upload the photographs of

the 2nd respondent on facebook and whatsapp and spoil her life, if she takes

any action against the appellant for his forceful sexual assault, which according

to the 2nd respondent was without her consent.

6. We have given due consideration to the rival submissions. With

the able assistance of learned counsel for the appellant, the learned APP for

State and learned counsel appointed to represent the 2 nd respondent, we have

carefully perused the allegations in the FIR, chargehsheet and its

accompaniments and also other incriminating material collected during the

course of investigation. Upon careful perusal of the allegations in the FIR, it is

alleged that the appellant had committed forceful sexual assault against the

Bhagyawant Punde, PA

5/8 APEAL-545-2021 (J).doc

will of 2nd respondent. During meeting of appellant and 2 nd respondent, the

appellant snapped obscene photographs of the 2 nd respondent and prepared a

video and also created fabricated facebook account in the name of 2 nd

respondent and uploaded the said photographs and video on the said facebook

account to malign the image of 2 nd respondent and prevent her from taking

action against the appellant for his forceful sexual assault.

7. The precise allegations are that the appellant asked the 2 nd

respondent to keep the relations with him by giving promise to her that he will

marry with her, however, when the 2nd respondent asked the appellant to

perform the marriage, he refused to marry the 2 nd respondent, on the ground

that she belongs to scheduled tribes. One specific incident has been quoted in

the FIR that in the month of January 2019, the appellant established contact

with the 2nd respondent and promised her that he will marry with her and she

should continue love affair with him, and she was called at the place of

appellant's friend at Kalyan. Believing the appellant, the 2 nd respondent went

to Kalyan at the place of appellant's friend at the address given in the FIR. The

appellant by taking undue advantage of her presence at his friend's place on

23.01.2019 in between 12.00 to 15.30 p.m. committed sexual assault and also

snapped obscene photographs and created video of 2nd respondent.

8. The appellant has committed alleged offences which would not

Bhagyawant Punde, PA

6/8 APEAL-545-2021 (J).doc

only attract the provisions of IPC, but also attracts the provisions of said Act

and also provisions of Section 67(A) of the Information and Technology Act,

2000. The contention of learned counsel for the appellant that the 2 nd

respondent was consensual party to the alleged relationship with the appellant,

and, therefore, the appellant has not committed any offence, cannot be

accepted for a simple reason that prima facie it appears that the appellant had

intention to cheat the 2nd respondent since inception. A specific allegations in

the FIR that the appellant refused to marry with 2 nd respondent since she is

from scheduled tribes, cannot be taken lightly. In addition to above, the

conduct of the appellant to snap the obscene photographs of 2 nd respondent

and to give threat to her that, if she refused to continue love affair with him in

that case he will expose her by uploading those photographs on facebook and

whatsapp. The matter does not stop there, but as a matter of fact the appellant

on 21.03.2019, as alleged in the FIR, uploaded the said photographs by

creating forged and fabricated facebook account in the name of 2 nd

respondent.

9. In our prima facie opinion, the impact of alleged activities of the

appellant is not restricted to the facts of the present case, if such activities are

allowed to continue, same has great impact upon the society. In that view of

the matter, for more than one reason assigned in foregoing paragraphs, we are

Bhagyawant Punde, PA

7/8 APEAL-545-2021 (J).doc

of the opinion that the appellant does not deserve to be released on bail,

keeping in view the material collected by the investigating officer during the

course of investigation. In addition to above, in case the appellant is released

on bail, there is every possibility that he may tamper with prosecution witness

and evidence. It is not necessary to elaborate the reasons. Suffice it to say that

no case is made out to grant relief.

10. In the light of discussion in foregoing paragraphs, we are not

inclined to entertain the present appeal to release the appellant on bail. Hence,

the appeal stands dismissed.

11. The observations made herein above are prima facie in nature

and confined to the adjudication of present appeal only.

12. We direct the concerned trial Court to expedite the pending trial

and complete the same as expeditiously as possible, however within six

months from today. In case, the trial is not completed within six months from

today, the appellant will be at liberty to apply for bail.

Bhagyawant Punde, PA





                                         8/8                        APEAL-545-2021 (J).doc

13. We appreciate the able assistance rendered by Advocate Ms.

Ameeta Kuttikrishnan, appointed for representing the 2nd respondent. We

quantify her fess at Rs. 10,000/- to be paid by High Court Legal Services

Committee, Mumbai, within four weeks from the receipt of copy of this order.

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




Bhagyawant Punde, PA