Bombay High Court
Govind Balaji Dumpalwar vs The State Of Maharashtra And ... on 8 June, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.21 OF 2021
Govind Balaji Dumpalwar,
Age 47 yrs., Occ. Service,
R/o Bhendegaon, Tq. Mukhed,
Dist. Nanded.
... Appellant
... Versus ...
1 The State of Maharashtra
Through the Officer Incharge,
Mandvi Police Station, Mandvi,
Tq. Kinwat, Dist. Nanded.
2 The Sub Divisional Police Officer/
The Deputy Superintendent of Police,
Sub Division, Mahur, Dist. Nanded.
3 XYZ (under guardian)
Ashok Madavi,
Age 45 yrs., Occ. Agri.,
R/o Wai Bazar, Tq. Mahur,
Dist. Nanded.
... Respondents
...
Mr. R.S. Deshmukh, Senior Counsel i/b Mr. D.R. Deshmukh, Advocate for the
appellant
Mr. S.B. Narwade, APP for respondent Nos.1 and 2
Mr. H.V. Tungar, Advocate (appointed) for the respondent No.3
...
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WITH
CRIMINAL APPEAL NO.22 OF 2021
Govind Balaji Dumpalwar,
Age 47 yrs., Occ. Service,
R/o Bhendegaon, Tq. Mukhed,
Dist. Nanded.
... Appellant
... Versus ...
1 The State of Maharashtra
Through the Officer Incharge,
Mandvi Police Station, Mandvi,
Tq. Kinwat, Dist. Nanded.
2 The Sub Divisional Police Officer/
The Deputy Superintendent of Police,
Sub Division, Mahur, Dist. Nanded.
3 XYZ (under guardian)
Bhimrao Jugnake,
Age 40 yrs., Occ. Agri.,
R/o Gondkheda, Tq. Mahur,
Dist. Nanded.
... Respondents
...
Mr. R.S. Deshmukh, Senior Counsel i/b Mr. D.R. Deshmukh, Advocate for the
appellant
Mr. S.B. Narwade, APP for respondent Nos.1 and 2
Mr. H.V. Tungar, Advocate (appointed) for the respondent No.3
...
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WITH
CRIMINAL APPEAL NO.23 OF 2021
Govind Balaji Dumpalwar,
Age 47 yrs., Occ. Service,
R/o Bhendegaon, Tq. Mukhed,
Dist. Nanded.
... Appellant
... Versus ...
1 The State of Maharashtra
Through the Officer Incharge,
Mandvi Police Station, Mandvi,
Tq. Kinwat, Dist. Nanded.
2 The Sub Divisional Police Officer/
The Deputy Superintendent of Police,
Sub Division, Mahur, Dist. Nanded.
3 XYZ (under guardian)
Sanjay Parchake,
Age 45 yrs., Occ. Agri.,
R/o Jarurkhedi Bazar, Tq. Kinwat,
Dist. Nanded.
... Respondents
...
Mr. R.S. Deshmukh, Senior Counsel i/b Mr. D.R. Deshmukh, Advocate for the
appellant
Mr. S.B. Narwade, APP for respondent Nos.1 and 2
Mr. H.V. Tungar, Advocate (appointed) for the respondent No.3
...
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CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 27th APRIL, 2021
PRONOUNCED ON : 08th JUNE, 2021.
JUDGMENT :
1 Admit.
2 Present appeals have been filed by the same appellant under
Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, to challenge the orders passed by learned Special Judge
under the POCSO as well as Atrocities Act in Special (POCSO) Case
Nos.26/2020, 25/2020 and 34/2020 respectively at Exh.Nos.3, 7 and 4
respectively, rejecting the applications under Section 439 of the Code of
Criminal Procedure, 1973 on 03.11.2020. It will not be out of place to
mention here that all these cases are arising out of the First Information
Report lodged by three different minor girls. The offences those are
registered against the present appellant in all those cases are under Section
354, 354-A, 323, 504 of the Indian Penal Code, 1860, under Section 3(1)(w)
(i), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 and under Section 8, 10, 12, 21 of the Protection of
Children from Sexual Offences Act, 2012. All those offences came to be
registered with Mandvi Police Station, Mandvi, Tq. Kinwat, Dist. Nanded vide
5 Cri.Appeal_21,22,23_2021_Jd
Crime Nos.91/2019, 90/2019 and 94/2019 respectively. It can be seen that
the appellant came to be arrested in each of the case one after another. Now,
in all the cases the investigation is complete and charge sheet has been filed.
3 Heard learned Senior Counsel Mr. R.S. Deshmukh instructed by
learned Advocate Mr. D.R. Deshmukh for the appellant, learned APP Mr. S.B.
Narwade for the respondent Nos.1 and 2 and learned appointed Advocate Mr.
H.V. Tungar for the respondent No.3, in all matters.
4 It has been vehemently submitted by learned senior counsel Mr.
R.S. Deshmukh instructed by learned Advocate Mr. D.R. Deshmukh that the
learned Special Judge failed to consider that now, since the investigation is
over, the further physical custody of the appellant is not required for the
purpose of investigation. Perusal of each of the case would show that the
incident is stated to have occurred somewhere on the last day of Navratri in
2019. All the girls are taking education in the residential school having
hostel facility. The prosecutrix in Crime No.90/2019 appears to have lodged
the report regarding the alleged incident that took place on 18.12.2019 and
the prosecutrix in Crime No.91/2019 says that incident with her had
happened on the last day of Navratri, but she had not lodged any report
about the same. The prosecutrix in Crime No.94/2019 dated 29.12.2019 has
stated that the offence against her had taken place on 14.08.2019.
6 Cri.Appeal_21,22,23_2021_Jd
Therefore, it is apparent that in almost all the cases there is delay in lodging
the report. This appears to be the false involvement of the present appellant.
The contents of the FIR as well as the statements of the witnesses/victims
under Section 164 of Cr.P.C. appear to be after thought and also amount to
creation of false evidence against the present appellant. No incriminating
article has been recovered at the instance of the present appellant. It is
surprising fact that none of the victims had ever disclosed the incident to
anybody. With some ulterior motive the present appellant has been framed.
The offences under Section 8 and 10 of POCSO Act have been erroneously
invoked. Even the school authorities have now been made co-accused in two
cases i.e. in Crime No.90/2019 and 94/2019 against whom it appears that
offence under Section 12 and 21 of the POCSO Act and Section 75 of
Juvenile Justice Act have been invoked. The possibility of defaming the
institute as such cannot be ruled out. It would take long time to stand the
trial and, therefore, the appellant deserves to be released on bail. He is ready
to abide by the terms of the bail.
5 Per contra, the learned APP Mr. S.B. Narwade and learned
appointed Advocate Mr. H.V. Tungar strongly objected the appeals and
submitted that as per the prosecution story, the present appellant was given
the job of taking care of the girls, who were residing in the hostel. It also
7 Cri.Appeal_21,22,23_2021_Jd
appears that two co-accused in other two matters i.e. Crime No.90/2019 and
94/2019 were Headmistress and Residential Guardian, however, in all the
three First Information Reports the informants have clearly stated that the
present appellant was given the job of a Rector of the hostel. The story told
by each of the victim/prosecutrix is that on one or the other count the
present appellant went near them and with sexual intent either he had
pressed the breast of the girls and even for one victim, when she made
complaint about stomach ache he had taken his top upwards and by placing
his hands on her stomach he had pressed her breasts. When she had even
after pushing him started running from the hostel, the appellant had ran
behind her and by catching hold of her hand he was dragging her. She had
even disclosed the said fact, after relieving herself from the clutches of the
appellant, to the cook of the hostel and then at that place she could meet the
other two victims, who had the same experience of the appellant. It is also
stated that when she told about the said fact to other girls, the present
appellant had gone near them and had prayed for pardon. But when they
told that they will not keep quiet, even the appellant had tried to beat the
girls, but then girls had taken sticks in their hands and threatened to assault
him, the appellant fled away from the spot. It can rather be expressed prima
facie, taking into consideration those contents that this is the courage, that is,
required to be shown by the girls and ladies and they are not supposed to
8 Cri.Appeal_21,22,23_2021_Jd
suffer such illegal advancements and injustice.
6 The statements of all the victims under Section 164 of Cr.P.C. as
well as under Section 161 of Cr.P.C. are consistent enough. No doubt, it has
been tried to be pointed out that the informant/victim in one case is witness
in another and that is how the evidence has been collected and, therefore,
the objection has been taken by the appellant that he has been framed.
Those submissions on behalf of the appellant do not appeal to this Court, for
the simple reason is that the incident has taken place in a closed institute or
in the vicinity of the institute and, therefore, as per the story, when one
informant disclosed the fact, which had happened with her to another and
then another girl lodged the report in respect of the incident that had taken
place with her, but at that time she had no courage to lodge the report, then
only those persons could be the witnesses in each other case. Now, it would
be for the concerned Court to appreciate the evidence, taking into
consideration the examination-in-chief and the cross-examination of all the
witnesses, as to whether the prosecution would be able to prove its case
beyond reasonable doubt or not. The allegations against the appellant are
such that it not only shakes the confidence of the girls but it is also affecting
the girl students, who are taking education by staying in hostel. It will not be
out of place to mention here that all the victims are members of Scheduled
9 Cri.Appeal_21,22,23_2021_Jd
Tribe. The appellant has every knowledge about the same, for the simple
reason that the hostel and the institute was for the benefit of the members of
the Scheduled Tribe only. Inspite of this fact, if he has behaved with the
victims in such a way, who are admittedly minors, then not only on the legal
aspects but on moral aspects also the appellant is not entitled to release
because while dealing with a bail application the Courts are also required to
consider the impact of the order on the society at large. This is not a fit case
where the appellant ought to have been released in all the cases.
7 The learned Trial Judge, that is, Special Judge under the POCSO
as well as Atrocities Act, has not erred in rejecting the application. All the
aspects have been considered properly, correctly and legally. There is no
reason to interfere in the impugned order. All the appeals stand dismissed.
The fees of the appointed Advocate is quantified at Rs.5,000/- (Rupees Five
Thousand only) per case, that is, in all Rs.15,000/- (Rupees Fifteen Thousand
only) to be paid by the High Court Legal Services Sub Committee,
Aurangabad.
( Smt. Vibha Kankanwadi, J. )
agd
