Sunil Hanumant Gophane vs The State Of Maharashtra
2021 Latest Caselaw 2532 Bom

Sherla V.


                                                                         6_apeal.1775.2019.doc
             Digitally
             signed by
             Vishwanath
  Vishwanath S. Sherla     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  S. Sherla  Date:
             2021.02.09              CRIMINAL APPELLATE SIDE
             10:07:27
             +0530

                                   CRIMINAL APPEAL NO.1775 OF 2019

                     ABC                                                     ... Appellant
                               Vs.
                     1) State of Maharashtra
                                                                        ... Respondents
                     2) XYZ



                    Mr.Sachin H. Deokar for the Appellant - ABC
                    Mr.V.B. Konde-Deshmukh, APP for Respondent - State
                    Ms.Priyanka Chavan, Advocate appointed, for Respondent No.2


                                             CORAM: S.S. SHINDE &
                                                    MANISH PITALE, JJ.

DATED: FEBRUARY 8, 2021

ORAL JUDGMENT (PER S.S. SHINDE, J.):

1. Rule. Rule made returnable forthwith with the consent of

the parties and heard finally.

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

allegations against the appellant are in respect of the alleged

sexual assault, the identity of the first informant as also the

appellant needs to be concealed and hence, the appellant is

referred to as "ABC" and the first informant is referred to as "XYZ".

The Registry is directed to maintain the record accordingly.

6_apeal.1775.2019.doc

3. Heard the learned Counsel appearing for the appellant. He

invites our attention to the grounds taken in the appeal and

submits that as a matter of fact, the sexual act of the appellant -

ABC was after consent from the respondent - XYZ. He submits

that the appellant is languishing in jail since March, 2019. There is

no possibility of commencement of trial in near future and,

therefore, he submits that the appellant may be released on bail.

4. On the other hand, the learned Counsel appointed to

represent the cause of Respondent No.2 submits that at the

relevant time, on the date of the incident, Respondent No.2 was

minor aged 14 years. She belongs to scheduled caste and her

statement gets corroboration from the medical report. Therefore,

she submits that there is no question of giving consent by

Respondent No.2 since she was not competent to give consent

being a minor.

5. Learned APP appearing for the State adopts the arguments

advanced by the learned Counsel appearing for Respondent No.2.

6. Upon appreciating the rival contentions and perusal of the

statement of the victim so also the other evidence collected by the

6_apeal.1775.2019.doc

prosecution, we are of the considered view that Respondent No.2

was not competent to give consent in law. Apart from it, prima

facie, the material collected by the prosecution supports the

prosecution case.

7. In that view of the matter, no case is made out to entertain

the appeal. Hence, the Appeal is dismissed. We direct the

Special Judge, Baramati to expedite the hearing of the Special

Case No.61 of 2019 and conclude the same as expeditiously as

possible, however, within six months from the receipt of the copy of

the order passed by this Court.

8. We appreciate the sincere efforts taken by Ms.Priyanka

Chavan, learned advocate appointed to argue the appeal for

Respondent No.2. She has rendered able assistance to this Court

during the course of hearing. We quantify her fee at Rs.7,500/-

which is to be paid by High Court Legal Services Committee,

Mumbai, within one week from the receipt of the copy of this order.

9. Writ Petition stands disposed of accordingly.

     (MANISH PITALE, J.)                          (S.S. SHINDE, J.)