Arjun Digambar Shitole vs The State Of Maharashtra And Anr
2021 Latest Caselaw 3612 Bom

           Digitally
           signed by
           Vishwanath                                   1/4                       APPEAL-452-2020.doc
Vishwanath S. Sherla
S. Sherla  Date:
           2021.02.25
           15:03:31
           +0530
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION

                                     CRIMINAL APPEAL NO. 452 OF 2020

            ABC                                                       ...APPELLANT

                     Versus

            1.       The State of Maharashtra
                     Through Pandharpur Taluka Police
                     Station, Tal. Pandharpur,
                     Dist. Solapur.

            2.       XYZ                                              ...RESPONDENTS
                                                ...
            Mr. Shriram S. Chaudhari for Appellant.
            Mr. Pawan Mali for Respondent No. 2.
            Mrs. S.D. Shinde, APP for State.
                                                ...

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

RESERVED ON- 23rd FEBRUARY 2021.

PRONOUNCED ON- 25th FEBRUARY, 2021.

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

. 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 appellant and Respondent No. 2 needs to be concealed, and they are

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

record accordingly.

            Bhagyawant Punde
                                          2/4                     APPEAL-452-2020.doc

2. Being aggrieved by the order passed by 04.07.2020 passed

below Exhibit-6 in bail application filed in Special Case No. 11/2020 by the

learned Additional Sessions Judge, Pandharpur, thereby rejecting the prayer

of the appellant to release him on bail, this appeal is filed.

3. Learned counsel appearing for the appellant submits that the

except bare words of the victim there is no other evidence to lend support to

the allegations made in the FIR. The investigation officer has invoked

provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (for short 'said Act'), without any basis. There is no

specific averments in the FIR which would attract the provisions of Sections

3 (1)(w)(ii) and 3(2)(va) of the said Act. The appellant is in custody for more

than seven months. Prima facie there is absolutely no evidence to connect the

appellant with the alleged offence. The appellant is ready to co-operate with

the investigation officer and will abide by the conditions as would be

imposed while granting bail.

4. On the other hand, Mr. Pawan Mali, learned counsel appearing

for Respondent No. 2 submits that the victim girl is deaf and dumb and

mentally challenged to some extent. Her evidence coupled with the

deposition of her mother is sufficient to disbelieve the contention of the

appellant that he is not involved in the alleged offence. Learned counsel

Bhagyawant Punde 3/4 APPEAL-452-2020.doc

invites our attention of this Court to the unreported judgment of the Hon'ble

Supreme Court in the case of The State of Maharashtra Vs. Bandu @ Daulat,

and submits that in the facts of that case, keeping in view the fact that the

victim therein was deaf and dumb and mentally challenged, the Supreme

Court reversed the acquittal order passed in favour of appellant therein and

convicted the appellant therein to undergo seven years sentence.

5. Learned APP appearing for Respondent-State invites our

attention to the statement of various witnesses and also other

accompaniments of the charge sheet and submits that the appellant has

committed very serious offence, therefore, appeal may not be entertained.

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

Perused the grounds taken in the appeal memo, so also, annexures thereto

and charge sheet and its accompaniments. Upon careful perusal of the

statement of witnesses and in particular statement of victim and her mother,

the contention of the learned counsel for the appellant cannot be accepted

that the prima facie prosecution has failed to show the involvement of the

appellant. The fact that the victim is deaf and dumb is brought on record by

the prosecution. The Special/Trial Court keeping in view the fact that the

victim is mentally ill women and belongs to scheduled caste has been

sexually assaulted by the appellant, and after perusal of the charge sheet

Bhagyawant Punde 4/4 APPEAL-452-2020.doc

noted that the certificate of victim shows that she suffers 66% disability.

Therefore, Additional Sessions Judge, Pandharpur, concluded that no case is

made out for enlarging the appellant on bail. On independent scrutiny, we

find that the prosecution has collected sufficient material and trial can

proceed against the appellant. Prima facie the statement of victim and her

mother firmly supports the prosecution case. In case the appellant is released

on bail there is every possibility of tampering with the prosecution witnesses

and evidence by the appellant. The victim appears to be from poor strata of

the society. In that view of the matter, the prayer of the appellant to enlarge

him on bail stands rejected. Consequently appeal stands dismissed.

7. We direct the concerned Trial Court to expedite the trial and

conclude the same as early as possible, however within six months from the

receipt of this order.

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

and confined to the adjudication of the present appeal only. The Trial Court

shall not get influence by the observations made herein above, during the

course of trial.

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



Bhagyawant Punde