Bombay High Court
Dipak Alias Nikhil Kiran Wani vs The State Of Maharashtra on 6 December, 2021
Bench: M. G. Sewlikar
{1} BA 909 OF 2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
17 BAIL APPLICATION NO.909 OF 2021
. Dipak alias Nikhil s/o Kiran Wani
Age: 23 years, Occu.: At present Nil,
R/o. Village Waradsim, Taluka-
Bhusaval, District : Jalgaon. ..Applicant
VERSUS
1. The State of Maharashtra,
through the Ofcer rncharge,
M.r.D.C. Jalgaon Police Station,
Jalgaon, District Jalgaon.
2. Mahesh s/o Tukaram Kolhe
Age: 33 years, Occu.: Labour,
R/. Near Hanuman Temple,
Rameshwar Colony,
Jalgaon, Tq. and Dist.Jalgaon. ..Respondents
...
Advocate for Applicant : Shri Govind Kulkarni h/f.
Shri Devang R. Deshmukh
APP for Respondent No.1 : Shri G.O.Wattamwar
Advocate for Respondent No.2 : Shri Rohit Patwardhan
(Amicus Curiae)
...
CORAM : M.G.SEWLIKAR, J.
DATE: 6th December, 2021
PER COURT:-
1. Heard.
2. Respondent No.2 is absent though served. No one has
registered appearance for him.
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{2} BA 909 OF 2021
3. Shri Rohit Patwardhan, learned counsel is appointed as
Amicus Curiae to represent respondent No.2.
4. rt is alleged in the FrR that the informant is the maternal
uncle of the victim. At the time of the incident, age of victim was
17 years and 6 months. She was staying with informant for D.Ed.
Course.
5. rt is alleged that on 26th January, 2021, victim said to the
informant that she would attend fag hoisting ceremony in the
College on account of Republic Day i.e. 26 th January, 2021. She
left the house at 7:00 a.m. on that day and did not return.
rnformant expressed suspicion on the applicant. Age of the
applicant at the time of the incident was 23 years. Accordingly,
the informant lodged missing report. Victim was traced. She
stated that she was in love with the applicant. During the
investigation, statement of the victim was recorded under
Section 161 of the Code of Criminal Procedure. She stated in this
statement that her parents had settled her marriage elsewhere
which she did not approve of. Therefore, she decided to elope
with the applicant. rt is further stated in her statement that she
had physical relations with the applicant. Therefore, ofence
under Sections 363, 366(A), 376 of the rndian Penal Code and
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{3} BA 909 OF 2021
under Sections 4, 8 and 12 of the Protection of Children from
Sexual Ofences (POCSO) Act came to be registered against the
applicant. Applicant was arrested on 13th February, 2021.
6. Shri Govind Kulkarni, learned counsel for the applicant
submits that applicant and the victim are in romantic
relationship. He further submits that from her statement under
Section 161 of the Code of Criminal Procedure, it is apparent that
the victim was in love with the applicant and on her own volition
she eloped with the applicant. He submits that victim was 17
years and 6 months of age at the time of the incident. She was
of the age of understanding and was capable of forming the
judgment about the consequences of her acts.
7. Shri G.O.Wattamwar, learned APP for the respondent-State
and Shri R.P.Patwardhan, learned counsel for respondent No.2
submit that victim was not of consenting age at the time of
entering into physical relationship. Therefore, ofence under
Section 376 of the rndian Penal Code and under Sections 4, 8 and
12 of the POCSO Act has been made out. They further submit
that the applicant, if released on bail, is likely to pressurize the
victim. Both of them submit that medical evidence corroborates
that there was physical relationship between the applicant and
the victim.
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{4} BA 909 OF 2021
8. Charge-sheet has been fled. Admittedly, applicant at the
time of the incident was of 23 years age and the informant was
of 17 years and 6 months age. Now victim has attained the age
of majority. Her date of birth is 14 th May, 2003. rn the month of
May, 2021 she attained the age of majority.
9. From the medical examination report, it is seen that the
Medical Ofcer has noted that there was old tear to hymen. rt is
also reported that no fresh injury to hymen was seen. Applicant
was traced on 13th February, 2021 and on the same day medical
examination was conducted. Therefore, it appears that medical
evidence does not support contentions of the prosecution.
Moreover, charge-sheet is fled. Therefore, there is no question
of the applicant tampering the evidence or pressurizing the
witnesses. Applicant has no criminal antecedents. He has
permanent residence in village Waradsim, Tq.Bhusawal, District
Bhusawal. To allay the fear of prosecution that applicant may
pressurize witnesses, he can be directed to stay away from
Bhusawal Taluka for which the learned counsel for the applicant
has no objection. rn view of this, r am inclined to release the
applicant on bail. Hence, the order.
ORDER
i) Bail Application is allowed.
{5} BA 909 OF 2021
ii) Applicant be released on P.R.Bond of Rs.20,000/- (Rs.
Twenty Thousand only) with one solvent surety in the like
amount, in connection with Crime No.0040 of 2021,
registered with MrDC Police Station, Dist.Jalgaon, under
Sections 363, 366(A), 376 of the rndian Penal Code and
under Sections 4, 8 and 12 of the POCSO Act and on
condition that he shall stay away from entire Bhusawal
Taluka, District Jalgaon and shall attend the dates fxed in
the trial regularly and co-operate the trial Court to dispose
of the trial.
iii) Bail Application is disposed of.
iv) Fee of Amicus Curiae is fxed at Rs.3,000/- (Rs.Three
thousand only). rt is to be paid through the High Court Legal
Services Authority, Sub-Committee, Aurangabad.
v) rt is clarifed that the observations made in the above
order are restricted to the decision of this application only
and the trial Court shall not get infuenced by the same and
can come to its independent conclusion during trial.
( M.G.SEWLIKAR )
JUDGE
SPT
