Bombay High Court

Prashant Suryakant Date vs The State Of Maharashtra on 15 February, 2021

Bench: Prakash Deu Naik

                       rpa                         1/11                  19 ba 1725 2020.doc


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION


                                    BAIL APPLICATION NO.1725 OF 2020
                                                 WITH
                                INTERVENTION APPLICATION NO.441 OF 2021


                       Prashant Suryakant Date                       .. Applicant
                             Versus
                       State of Maharashtra                          .. Respondent

                                                   ......
                       Mr.Mihir Gheewala i/b. Mr.Santosh G. Pawar, Advocate for the
                       Applicant.

                       Mrs.M.r. Tidke, APP for the Respondent - State.

                       Ms.Saziya Mukadam, Advocate for the Intervenor.
                                                  ......

                                                    CORAM : PRAKASH D. NAIK, J.

DATED : FEBRUARY 15, 2021.

P.C. :

This is an application for bail under Section 439 of

Code of Criminal Procedure, 1973 ("Cr.PC" for short) in

connection with C.R. No.424 of 2020, registered with Powai

Police Station, Mumbai, for the ofences punishable under

Digitally Sections 377, 506 of Indian Penal Code, 1860 ("IPC" for short) signed by RajeP. RajeP. Aher Date: and Sections 4, 6, 8 and 12 of Protection of Children from Sexual Aher 2021.02.24 16:08:09 +0530 Ofences Act, 2012 (for short 'POCSO Act)). The applicant was

arrested on 21st October, 2020.

 rpa                           2/11                    19 ba 1725 2020.doc


2          The First Informant is the grand mother of the victim

boy. According to complainant, victim is aged about 17 years 11

months. The relatives of the complainant are residing in the

nearby area of residence of complainant. Complainant)s relatives

Suryakant Date and his wife Shubhangi Date were sufering from

COVID-19 and they were admitted at Seven Hills Hospital. Their

son Prashant (Applicant) was alone at home and hence the family

of applicant had requested complainant to send victim to their

house. From 20th June, 2020 to 27th June, 2020, the victim boy

used to visit the house of accused in the night for sleeping. The

applicant was addicted to liquor. The complainant was providing

meal to him. The victim went to native place at Chiplun and

hence he could not visit the house of applicant/accused. On 2 nd

July, 2020, the applicant abused the complainant)s family on

account of fact that the victim was not sent to his residence. N.C.

complaint was lodged with Powai Police Station, Mumbai, by

complainant against the applicant. On 3rd August, 2020, the

applicant/accused abused the complainant and others for

providing inferior quality meal and assaulted them. He also

showed photographs of victim in half pant. N.C. complaint was

lodged against the applicant on 3rd August, 2020. The

complainant suspected foul play. She called the victim boy from rpa 3/11 19 ba 1725 2020.doc

Chiplun. On 4th August, 2020 the victim came to Mumbai. The

complainant took him in confdence and enquired with him as to

what has happened. The victim told her that he was forced to

drink liquor and the accused had subjected him to sexual assault.

He was forced to commit oral sex and subjected to unnatural sex.

The complaint was lodged with police and the First Information

Report ("FIR" for short) was lodged on 6th August, 2020.

3 The applicant preferred an application for bail before

the Special Court under POCSO Act. The said application was

rejected by order dated 4th December, 2020.

4 Learned counsel for the applicant submitted as

follows:

(i) The applicant has been falsely implicated in this case.

The uncle of victim had registered false N.C. complaint

against the applicant on 2nd July, 2020. On 13th July, 2020

and 23rd July, 2020 the sister of applicant had called

Mumbai police helpline number 100 to complain against

father of victim. The applicant relied upon the screen

shot of call.

(ii) On 3rd August, 2020 quarrel took place between the rpa 4/11 19 ba 1725 2020.doc

applicant and victim)s father, since the victim)s father

had abused the applicant in flthy language. Applicant

lodged N.C. No. 1472 with Powai Police Station,

Mumbai, against victim)s father for ofences punishable

under Sections 323 and 504 of IPC. The father of victim

had also lodged N.C. complaint against the applicant on

the same day.

(iii) The FIR was lodged belatedly. The date of actual

incident has not been specifed in the complaint or

statements of witnesses.

(iv) Although the alleged incident had occurred during the

period from 20th June, 2020 to 27th June, 2020, the FIR

was lodged on 6th August, 2020.

(v) False story was concocted on account of enmity and

hostility between applicant and the complainant)s

family.

(vi) Medical evidence does not support the case of the

prosecution. Although the victim has alleged that he

was subjected to unnatural sex, the medical evidence is

completely silent and do not corroborate his version.

rpa 5/11 19 ba 1725 2020.doc

(vii) The victim is a boy aged about 17 years and 11 months.

He could have disclosed the incident immediately.

(viii) The investigation is completed and charge-sheet is

fled. The allegation against the applicant are false,

frivolous and baseless.

5 Learned APP submitted that the victim is minor. The

ofences are of serious nature. Medical evidence may not there,

since the victim was examined subsequently. The statement of the

complainant and the victim supports prosecution)s case. The

version of the applicant cannot be accepted at this stage. The

victim)s statement under Section 161 and 164 makes out the

ofences. The applicant is charged for the ofences under Section

377 of IPC as well as under the provisions of POCSO Act. The

applicant is attributed the overtact of committing penetrative

sexual assault. There is no delay in lodging FIR.

6 Learned Advocate for the Intervenor submitted that

the ofence is of serious nature. The victim is minor. The accused

was aged about 30 years. The victim was subjected to penetrative

sexual assault. The accused is cousin of complainant. Section 6 of

POCSO Act provides punishment upto imprisonment for life.

rpa 6/11 19 ba 1725 2020.doc

The incident had occurred two months prior to the medical

examination, therefore, there cannot be medical evidence. There

is no delay in lodging FIR. The complainant in her statement has

explained the delay. The victim had gone to Chiplun. After

suspecting foul play, the complainant called the victim, and,

thereafter, he disclosed the incident to her. Immediately

thereafter, FIR was registered. It is further submitted that the

statement of the complainant and victim cannot be disbelieved at

this stage. The grounds raised in the application for bail, cannot

be accepted. Learned counsel for the Intervenor relied upon the

decision of the Supreme Court in the case of State of Punjab

v/s. Gurumeet Singh and Others.1 In the said decision, it was

observed that a prosecutrix cannot be put on par with an

accomplice. Evidence Act does not required corroboration of

evidence in material particular. Nature of corroboration must

necessarily depend upon facts and circumstances of each case.

Reliance is also placed on the Judgment of the Apex Court in the

case of Prasanta Kumar Sarkar Versus Ashish Chaterjee and

Others2, wherein it was observed that the Court while granting

bail, several factors are to be borne in mind, such as whether

prima facie case is made out, nature and gravity of accusation,

1 AIR 1996 SC 1393 2 MANU SCC 0916 2010 rpa 7/11 19 ba 1725 2020.doc

severity of punishment in the event of conviction, danger of

absconding, likelihood of ofence being repeated and reasonable

apprehension of witnesses being infuenced etc. Learned

Advocate also relied upon the Judgment of supreme Court in the

case of State of Himachal Pradesh Versus Manga Singh3,

wherein it was observed that conviction could be based on

testimony of prosecutrix, if it inspires confdence and no

corroboration is required, unless there are compelling reason,

which necessitates the Court to insist corroboration. Absence of

injuries on private part of prosecutrix, can be of no consequence

in facts and circumstance of case.

7 I have perused the documents on record. The FIR was

lodged on 6th August, 2020. The alleged incident had occurred

during the period from 20th June, 2020 to 27th June, 2020. The

victim boy is aged about 17 years and 11 months. The accused is

related to the victim. Complaints are fled by both the sides

against each other. The complaints were fled prior to registration

of FIR. According to complainant, the parents of the applicant

were sufering from Covid-19, and they were hospitalized. Since

the applicant was alone at home, request was made to the

complainant)s family to send the victim to his house in the night

3 (2019) 16 SCC 759 rpa 8/11 19 ba 1725 2020.doc

for sleeping. The victim had visited the house during the period

from 20th June, 2020 to 27th June, 2020. The victim did not make

any complaint to any of the family member or any other person

immediately after the incident. According to complainant, he

went to Chiplun. The frst informant in her complaint has not

mentioned the date on which the victim had left for Chiplun. On

3rd August, 2020, NC complaints were fled by both the sides

against each other. Thereafter the complainant had called the

victim from Chiplun. The victim came to Mumbai on 4th August,

2020 and then disclosed the alleged incident to the complainant.

The complainant is the grandmother of the victim. The FIR does

not mention the actual date on which the victim was subjected to

sexual assault. According to complainant, on 3rd August, 2020, the

applicant had abused and assaulted the complainant and others

and he had shown the photographs of the victim in half pant and

therefore the complainant suspected of untoward incident and

called the victim from Chiplun. The NC complaint with regards to

the alleged incident dated 3rd August, 2020, was lodged against

the applicant by the complainant for ofences under Section 323,

504 and 506 of IPC. The alleged incident had occurred t about 6-

30 p.m. the complaint was lodged at 7:30 p.m. Although,

according to the complainant, photographs of the victim in half rpa 9/11 19 ba 1725 2020.doc

pant were shown to the complainant. There is no reference of the

such allegation in the NC complaint dated 3rd August, 2020. Thus,

as per the version of complainant, the victim was called by her

after the said incident and surprisingly the victim was back at

Mumbai on 4th August, 2020. It is pertinent to note that the victim

is almost one month short of 18 years and although the alleged

incident had occurred in June 2020, there was no complaint from

him. Statement of victim was recorded on 6th August, 2020. In his

statement, he has not given the date of incident. He stated that

he had visited the house of the applicant during the period from

period from 20th June, 2020 to 27th June, 2020. His supplementary

statement was recorded on 8th August, 2020. In the said

statement he has stated that the accused had shown him obscene

video from his mobile and told him that they should commit

similar act. This fact was not disclosed by him to the complainant

nor he has disclosed this fact in his frst statement dated 6 th

August, 2020. Thus, there is improvement by the victim in his

subsequent statement. In the said statement, for the frst time he

has mentioned the date when he visited Chiplun. According to

him, he went to Chiplun on 30 th June, 2020 and returned to

Mumbai on 4th August, 2020 at 09:00 p.m. The FIR was thereafter

lodged on 6th August, 2020. The applicant has also lodged NC rpa 10/11 19 ba 1725 2020.doc

complaint on 3rd August, 2020 against the father of victim for

ofences under sections 323 504 of IPC, it is thereafter the FIR

has been registered. The victim was examined by doctors. The

examination was conducted on 7th August, 2020. There were no

injuries on external genitals of the victim boy. There was no

evidence, of tear, anal tone normal and no evidence of mass per

rectum. There is no evidence of discharge and tenderness. The

fnal opinion of doctors is that there is no evidence of injuries

over the body and there is no injuries over anus and anal region.

The applicant is in custody from 21 st October, 2020. The decision

relied upon by the learned counsel for the intervernor were

delivered in the facts of case. The circumstances existing in the

present case prima facie creates doubt about the case of the

prosecution. Considering the nature of evidence there is no

impediment in granting bail to the applicant-accused.

8             Hence, I pass the following order:

                           ::   O R D E R ::


      (i)    Bail Application No.1725 of 2020, is allowed;

(ii) Applicant be released on bail in connection with

C.R. No.424 of 2020, registered with Powai Police

Station, Mumbai, on executing P.R. Bond in the rpa 11/11 19 ba 1725 2020.doc

sum of Rs.25,000/-, with one or more sureties in

the like amount;

(iii) Applicant shall not tamper with the prosecution

evidence. The applicant shall not approach the

victim or his family members;

(iv) The applicant shall stay out of jurisdiction of

Powai Police Station, till further orders. The

applicant shall furnish his residential address to

the investigating oficer;