Bombay High Court
Rajkumar Gajraj Yadav vs The State Of Maharashtra And Anr on 14 July, 2021
Bench: Prakash Deu Naik
24-Ia-231-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 231 OF 2020
IN
CRIMINAL APPEAL NO. 245 OF 2020
Rajkumar Gajraj Yadav ... Applicant
Versus
The State of Maharashtra & Anr. ... Respondents
.....
Mr. Sandeep Mishra, Advocate for the Applicant/Appellant.
Ms. Poonam Ankleshwaria, Advocate for Respondent No.2.
Mr. S. R. Agarkar, APP for the Respondent - State.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 14th JULY, 2021.
PER COURT:
1. This is an application for suspension of sentence and
grant of bail. The applicant is convicted for the offence punishable
under Section 4 of Protection of Children from Sexual Offences Act,
2012 (for short 'POCSO Act') and sentenced to suffer rigorous
imprisonment for ten years. He is also convicted for offence under
Section 363 of Indian Penal Code (for short "IPC") and sentenced to
suffer rigorous imprisonment for three years vide Judgment and
order dated 5th November, 2019 passed by the District Judge and
Additional Sessions Judge, Thane, in Special Case POCSO No. 252 of
2014.
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2. The prosecution case is that the informant is the father
of victim girl. The victim had left the house on 21 st March, 2013
without informing anyone. She also took away amount of
Rs.60,000/- from her house. She did not return home. Hence,
missing complaint was lodged on 22 nd March, 2013. The informant
searched for his daughter at the house of relatives. She was not
found. Subsequently, it was learnt that the accused was residing in
front of their house had left his wife and his children at his native
place 5 days prior to the incident and he was missing from his house.
The complaint was lodged for offence under Section 363 of IPC.
During the course of investigation it was revealed that the victim girl
and the accused/applicant were residing together at Surat, State of
Gujarat. The investigating officer then visited Surat and found that
both of them resided in rented premises at Surat. The victim was
pregnant. She was brought to Mumbai. The accused was arrested. He
was charge-sheeted. The victim had delivered the child. The
applicant/accused was prosecuted for the said offences and
convicted.
3. Learned Advocate for the applicant submitted that
during the trial, the applicant was on bail. The victim girl had eloped
with the applicant. She had volunteered to be with applicant. They
stayed together in rented premises at Gujarat. There is dispute about
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the age of victim girl. The evidence on record is contradictory. There
is no evidence to establish that the victim was minor at the time of
commission of offence.
4. Learned APP submitted that the applicant was married
person. He induced the victim to join him. She was taken to Gujarat.
Both of them stayed together. The victim had conceived and
delivered child.
5. Learned Advocate appointed for the complainant
submitted that the victim was minor. Her consent is immaterial. The
accused had preplanned the kidnapping. He has left his family to his
native place. He was a married person. The victim was taken to
Gujarat. He established physical relationship with her. The victim has
delivered a child. She has been kept in some remand home. The
evidence of the father of victim and victim is required to be
considered. The statements of the victim, her father and the evidence
brought on record would establish that the victim was below 16
years. Hence, the application for bail may be rejected.
6. The evidence on record would indicate that the
applicant was the neighbour of the victim. The victim went missing
from the house. Search was conducted. She was not found. The
evidence of the victim indicates that she had accompanied the
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applicant to Surat. She resided with the applicant for a period of
about one year. She was pregnant for seven months. After learning
about the fact that the victim and the applicant are residing together,
police visited Gujarat. The accused was apprehended and the victim
was brought to Mumbai. From the evidence of victim it is apparent
that the victim had volunteered to be with applicant. The question
which arises for consideration is whether the victim was minor at the
time of incident. The cross examination of the victim also indicate
that the accused had promised to marry with her. They have
performed marriage in the temple. Learned counsel for the applicant
urged that there is no cogent evidence to establish that the victim is
minor. There is variation in the statements of witnesses. Although the
register from the school indicates the date of birth, there is no
evidence to show the date of birth noted in the register is supported
by any material. The applicant was on bail during trial. The applicant
has raised serious dispute about the age of the victim girl.
Considering the aforesaid circumstances, sentence of imprisonment
can be suspended and the bail can be granted to the applicant.
7. Hence, I pass the following order:
ORDER
(i) Interim Application No. 231 of 2020 is allowed;
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(ii) Sentence of imprisonment awarded vide Judgment and
order dated 5th November, 2019 passed by the District Judge
and Additional Sessions Judge, Thane, in Special Case POCSO
No. 252 of 2014 is suspended and the applicant is directed to
be released on bail on executing P.R. Bond in the sum of
Rs.25,000/- with one or more sureties in the like amount;
(iii) The applicant shall report trial Court once in three
months on first Saturday of the month till further order;
(iv) The applicant is permitted to furnish cash bail in the
sum of Rs.25,000/- for a period of eight weeks in lieu of
surety.
(v) The requisite professional fees be provided to the
learned Advocate appointed to represent the complainant.
(vi) Interim Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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