Sunny Vilas Ambavane vs The State Of Maharashtra And Anr
2021 Latest Caselaw 1220 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
              CRIMINAL APPEAL (ST.) NO.4831 OF 2020


Sunny Vilas Ambavne                            ]
R/o. Room No.894, Yakub Beg Chawl,             ]
Momin Road, M.G. Road, Panvel, Raigad.         ]
(Presently lodged in Taloja Jail).             ]     ...               Appellant

                      Versus

1.    The State of Maharashtra                ]
      (At the instance of Senior Inspector of ]
      Police, Panvel City Police Station.)    ]

2.    XYZ                                      ]       ...        Respondents

                                 ...
Mr. Niranjan Mundargi i/b Ms. Keral Mehta for the appellant.

Dr. F.R. Shaikh, A.P.P. for respondent No.1-State.

Mr. S.R. Phanse, appointed advocate, for respondent No.2.
                                  ...

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

                      RESERVED ON          : 13TH JANUARY, 2021.
                      PRONOUNCED ON : 19TH JANUARY, 2021.




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JUDGMENT:- [Per: Manish Pitale, J.]

1. At the outset, it is required to be noted that since the allegations against the appellant are in respect of the alleged rape, the identity of respondent No.2 (original complainant) needs to be concealed, and she is referred to as XYZ. The Registry is directed to maintain the record accordingly.

2. By this appeal filed under section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("the said Act"), the appellant (original accused No.1) has challenged order dated 08/06/2020 passed by the Court of Additional Sessions Judge at Panvel, Raigad, whereby the bail application filed on behalf of the appellant was rejected.

3. Admit.

4. Heard finally, with the consent of learned counsel representing the rival parties.

5. The appellant (original accused No.1) along with two other accused persons i.e. his mother and sister, have been arraigned as accused in FIR registered on 30/12/2019, for alleged offences punishable under sections 376, 506 read with section 34 of the Indian Penal Code ("IPC") and sections 3(1)(r)(s)(w)(i)(ii) read with sections 3(2)(5)(a) of the said

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Act.

6. According to respondent No.2 (original complainant), the aforesaid offences were committed by the accused when the appellant persuaded respondent No.2 and forced himself on her in the month of May, 2019. It was claimed that the appellant also threatened respondent No.2 that he had certain photographs of the said respondent, which he would post on social media, due to which, she was put under extreme mental stress. It was further claimed that on 09/12/2019, when respondent No.2 had gone to the residence of the appellant to complain about him to his mother, she abused and assaulted her. It was then claimed that on 14/12/2019, when respondent No.2 again visited the house of the appellant to see if the appellant's mother could make him understand that his behaviour was not acceptable, the appellant pulled her to his bedroom and forced himself upon her. Thereafter, the mother and sister of the appellant came to the house and not only abused her but also, further abused her in the name of her caste. It is on the basis of such allegations that the FIR stood registered for the said offence against the said appellant and other accused persons. On registration of the FIR, the appellant came to be arrested on the next day i.e. on 31/12/2019.

7. The record shows that the co-accused i.e. the mother and the sister of the appellant were granted anticipatory bail. The regular bail application of the appellant was rejected by the special court at Panvel. Thereafter, on 28/02/2020, the charge-sheet was filed upon completion

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of investigation, at this stage, the appellant moved another bail application in Special (Atrocity) Case No.45 of 2020 before the Court of Sessions Judge at Panvel, Raigad but, the same was rejected by the impugned order dated 08/06/2020.

8. Mr. Mundargi instructed by Ms. Mehta, learned counsel for the appellant submitted that the allegations levelled against the appellant were without any basis. It was submitted that the appellant and respondent No.2 knew each other from their days in school and college. Respondent No.2 used to discuss her difficult matrimonial life with the appellant as a friend and, it is in this backdrop that the interaction between the appellant and respondent No.2 had taken place. It was further submitted that the allegations levelled by respondent No.2 against the appellant and his mother and sister were all concocted and that none of the incidents as claimed by respondent No.2 in the FIR had ever taken place. It was brought to the notice of this court that during the course of investigation, the mobile phone and other relevant equipments were already taken into custody by the investigating officer and that the charge-sheet having been filed, there was no reason for further custody of the appellant.

9. Notice was issued in this appeal, pursuant to which respondent No.2 was served but, there was no representation on her behalf and in these circumstances, this court appointed Mr. S.R. Phanse, advocate, as amicus curiae in order to represent respondent No.2.

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10. An affidavit in reply has been filed on behalf of the said respondent in which the allegations made against the appellant have been reiterated and, it is further claimed that the said respondent has found certain photographs of the appellant with other women, which also have a bearing on the present appeal. It is claimed that since respondent No.2 desires to protect the identity of such women, the photographs were not annexed with the reply. It was vehemently argued by Mr. Phanse, learned appointed advocate, representing respondent No.2 that looking to the seriousness of the allegations against the appellant, it was imperative that the appeal is dismissed and the impugned order stands confirmed.

11. Dr. F.R. Shaikh, learned A.P.P. appeared on behalf of respondent No.1-State.

12. Heard learned counsel for the rival parties and perused the material on record.

13. There is no doubt about the fact that respondent No.2 has, indeed, levelled serious allegations against the appellant resulting in registration of FIR and filing of charge-sheet against the appellant and the co-accused persons but, the material on record does show that respondent No.2 is a married woman and the first incident is said to have occurred in May, 2019. It is then claimed that in December, 2019, two incidents took

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place i.e. on 09/12/2019 and 14/12/2019, which constituted the aforesaid offence. The report was eventually lodged by respondent No.2 on 30/12/2019 pursuant to which, the appellant was arrested and, he has remained behind bars till date.

14. There is also no dispute about the fact that the investigation is complete and the charge-sheet was filed on 08/06/2020. It is also not disputed that during the course of investigation, the mobile phone and other equipments of the appellant were taken into custody by the investigating officer, for sending the same for further examination.

15. This court has taken note of the material brought on record in pursuance of the investigation and filing of the charge-sheet. Although, the allegations made against the appellant are serious, as regards the alleged incident that took place in May, 2019, it appears that respondent No.2 went to the house of the appellant at his instance and, thereafter, the incident took place. As regards the second incident, it is claimed that respondent No.2 had visited the house of the appellant on 09/12/2019 to speak to the appellant's mother about the alleged incident which took place in May, 2019 regarding forcible sexual intercourse. It is claimed that on the said date, the appellant's mother abused and assaulted her. Yet, on 14/12/2019, respondent No.2 again claims to have visited the house of the appellant when the second incident of forcible sexual intercourse is said to have taken place. The manner in which the allegations have been made and the genesis of the incidents, at this stage,

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seems to indicate that respondent No.2 did know the appellant.

16. Apart from this, there is no doubt about the fact that the appellant has been behind bars for more than a year and, the investigation stood completed with the charge-sheet being filed on 08/06/2020. The co- accused persons i.e. the mother and sister of the appellant were granted anticipatory bail at the initial stage itself. As noted above, the apprehension of respondent No.2 regarding certain photographs being made viral on social media by the appellant, seems to be already taken care of, as the mobile phone and other equipments were taken into custody by the investigating officer.

17. Taking an overall view of the matter and considering the material on record and, particularly the manner in which the alleged incidents have been described by respondent No.2, and the fact that the first incident of forcible sexual intercourse having taken place in May, 2019, yet the FIR eventually being registered on 30/12/2019, we are of the opinion that the appellant can be released on bail by imposing appropriate conditions.

18. As regards the alleged photographs of the appellant with other women, respondent No.2 would be at liberty to place such material before the investigating agencies and the concerned courts which could be dealt with, in accordance with law.

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19. In view of the above, the appeal is allowed in the following terms:

:O R D E R:

(a) The impugned order dated 08/06/2020 passed by the Additional Sessions Judge, Panvel, Raigad, is quashed and set aside.

(b) The bail application filed on behalf of the appellant -

Sunny Vilas Ambavne is allowed subject to the appellant furnishing P.R. Bond of Rs.25,000/- and a surety in the like amount.

(c) The appellant shall not tamper with the evidence or influence the witnesses. He shall not contact respondent No.2, in any manner, during the pendency of the trial and he shall attend the proceedings before the trial court on each and every date of listing.

(d) In the event, the appellant violates any of the aforesaid conditions, the relief of bail granted by this court will be liable to be cancelled.

20. The appeal is disposed of in the above terms.

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21. We appreciate the sincere efforts taken by Mr. S.R. Phanse, the learned appointed advocate for Respondent No.2 and we quantify his fees at Rs.10,000/-.

22. The High Court Legal Services Committee, Mumbai, is directed to pay the said amount to the appointed advocate Mr. S.R. Phanse within four weeks from the date of receipt of this order.

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




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