Sagar Tanaji Gawade vs The State Of Maharashtra And Anr
2021 Latest Caselaw 11676 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 273 OF 2021

ABC                                                       ...APPELLANT

         Versus

1.       The State of Maharashtra
         Through Sr. P.I. of Jejuri Police Station,
         Pune, Rural, Dist. Pune.

2.       XYZ                                              ...RESPONDENTS
                                               ...
Mr. Ranjeet Pawar for appellant.
Ms. Priyanka H. Chavan appointed for Respondent No. 2.
Mrs. A.S. Pai, PP for State.
                                    ...

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

RESERVED ON : 17th 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





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2. Being aggrieved by an order dated 12.11.2020 passed by the

learned Special Court at Shivaji Nagar, Pune, thereby rejecting the bail

application of the appellant, the present appeal is filed.

3. Learned counsel for the appellant submitted that the alleged

incident has taken place on 09.07.2020, however, the FIR has been belatedly

registered on 13.08.2020. It is submitted that the 2 nd respondent was given in

the custody of parents, thereafter the FIR came to be registered. There are no

independent witness to support the prosecution case as it is evident from the

perusal of the chargesheet and its accompaniments. That there is no evidence

to support the claim of the 2nd respondent that there was forceful sexual

intercourse. There are no external physical injuries on the person of the 2 nd

respondent. Doctor has observed 'multiple old healed hymnal tear'. The 2 nd

respondent has not stated anything in the FIR that the appellant abused her

on cast. At the most alleged offence against the appellant is under Section

354-A of the IPC, which is a bailable section. The chargesheet is already filed

and no purpose will be served by continuing the stay of the appellant in the

jail. Learned counsel further submits that since arrest, the appellant is in jail

and the trial is not likely to be commenced in the near future, therefore, the

appellant deserves to be released on bail.

Bhagyawant Punde, PA





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4. On the other hand, Ms. Priyanka Chavan, the learned counsel

appointed to represent the 2nd respondent invites our attention to the

allegations in the FIR, chargesheet and its accompaniments and other material

collected during the course of investigation and submits that along with co-

accused Aadesh Jadhav, the appellant and other co-accused with an intention

to sexually harass the 2nd respondent took her away from her parents house

and solemnized marriage of 2nd respondent with Aadesh Jadhav. After said

alleged marriage said Aadesh Jadhav and the appellant and other co-accused

intended to have sexual relations with 2 nd respondent and the said alleged

marriage was solemnized with an intention to cheat the 2 nd respondent and

have sexual relations with her. It is submitted that the medical evidence

completely supports the prosecution case. Therefore, in case the appellant is

released on bail, he may tamper with prosecution witness and evidence. It is

submitted that similar offences like as alleged in the impugned FIR are on rise

in the society and unless accused are deal with iron hands, commission of such

offences will not be reduced. Outcome of such offences has great impact upon

the society. The alleged offences are under Section 376(2)(n), 354-A of IPC

and Section 3(1)(w)(i)(ii), 3(2)(va) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989. It is submitted that the 2 nd

respondent belongs to scheduled caste and, therefore, aforesaid provisions

under the special Act will apply with its full force. Hence, the appeal deserves

Bhagyawant Punde, PA

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to be dismissed.

5. Learned PP appearing for Respondent-State joined the prayer of

learned counsel appointed for the 2nd respondent and submits that the appeal

may be dismissed.

6. We have carefully considered the rival submissions. With the able

assistance of learned counsel appearing for the parties, we have perused the

grounds in the appeal memo, annexures thereto, allegations in the FIR and

chargesheet and its accompaniments. It appears from the prosecution case that

the present appellant and other co-accused were instrumental in solemnizing

marriage of 2nd respondent with Aadesh Jadhav though the latter was a child in

conflict with law at the relevant time. The appellant and other co-accused were

instrumental in taking away the 2nd respondent with promise that the Aadesh

will marry with her and accordingly though the said Aadesh Jadhav was child

in conflict with law, the marriage was solemnized with the 2 nd respondent in

the presence of appellant and other co-accused. It is alleged in the FIR that

after said marriage the appellant tried to have sexual intimacy with the 2 nd

respondent though he knew that the 2nd respondent is married. It is alleged

that the appellant tried to make unwelcome advances to have physical contact

with the 2nd respondent and also demanded sexual favour, knowing that the

2nd respondent is married and belongs to scheduled caste. The role of the

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appellant is not restricted to asking only for sexual favour and to have physical

contact with the informant, but he accompanied other two co-accused and

participated in solemnizing marriage of the 2 nd respondent with Aadesh

Jadhav, who was child in conflict with law at the relevant time. If the entire

circumstances and chain of events is taken into consideration, the involvement

of the present appellant is disclosed. As rightly submitted by the learned

counsel for 2nd respondent that similar offences like alleged in the present FIR

are increasing day by day and posing threat to the security and interest of

women in the society and outcome of such offences have great impact upon

the society.

7. In the light of discussion in foregoing paragraphs and after

perusal of the allegations in the FIR, chargesheet and its accompaniments, we

are of the prima facie opinion that in case the appellant is released on bail

there is every likelihood of tampering with the prosecution witnesses and

evidence. Therefore, this is not a fit case to enlarge the appellant on bail.

Hence, the appeal stands dismissed.

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

and confined to the adjudication of present appeal only.

Bhagyawant Punde, PA





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9. 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.

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

Priyanka Chavan, 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