[email protected] Bholya Punjaram ... vs The State Of Maharashtra And Anr
2021 Latest Caselaw 4182 Bom

           Digitally
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           Vishwanath
Vishwanath S. Sherla
S. Sherla  Date:
           2021.03.08
           13:19:16        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           +0530
                                 CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPEAL NO. 108 OF 2021

                 XYZ                                       ...Appellant

                 Versus

        1.       The State of Maharashtra
                 At the instance of the P.I.
                 Vadner Khakurdi Police Station,
                 Nashik.

        2.       ABC                                       ...Respondents
                                                    ...

        Mr. Aniket Nikam i/b. Mr. Vivek Arote for appellant.
        Mrs. S.D. Shinde, APP for State.
        Mr. Ganesh Bhujbai, appointed advocate for Respondent No. 2.

                                                     ...

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

RESERVED ON: 4th MARCH 2020.

PRONOUNCED ON: 8th MARCH 2020.

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 the

appellant is referred to as "XYZ" and Respondent No. 2 as "ABC". The

Registry is directed to maintain the record accordingly.

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2. This appeal takes an exception to the order dated 07/03/2020

passed under Special Atrocity Sessions Case No. 19/2019 vide Exhibit-8.

Learned counsel appearing for the appellant submits that custodial

interrogation of the appellant is no longer required. There is no possibility of

the appellant tampering with the evidence or fleeing free from the course of

justice. The appellant has sufficiently undergone police custody. There is

nothing further left to be interrogated from the appellant. Learned counsel

for the appellant submits that the alleged role attributed to the appellant

will not attract the provisions of sections 376 (2)(n) of Indian Penal Code

and under sections 3(1)(w), 3(2)(v-a) of The Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and

under sections 4,6,8, of POCSO Act. The elements of sections charged

against the appellant are not at all attracted to the facts of the present case.

Learned counsel for the appellant further submits that the appellant is

behind the bars since his arrest. The interrogation of the accused is already

over and there is nothing further left to investigation. It is submitted that

there is no iota of evidence on the basis of which the elements of the offence

with which the appellant is charged are attracted. The FIR is extremely

nebulous and fails to spell out the essential elements of the offences with

which the appellant is charged.

It is submitted by the learned counsel for the appellant that in

case the appellant is released on bail, he will abide by the conditions and

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will not tamper with the prosecution evidence and witnesses.

3. It is further submitted that the alleged sexual relations of the

appellant with 2nd respondent were consensual and the 2 nd respondent was

on the verge of attaining majority, therefore, the appellant has not

committed any offence. In support of said contention learned counsel

appearing for the appellant has placed reliance upon exposition in the case

of S. Varadrajan Vs. State of Madras1.

4. On the other hand, learned APP appearing for Respondent-State

relying upon the reasons recorded in the impugned order passed by

Additional Sessions Judge and charge sheet submits that the informant on

the date of alleged incident was minor and therefore she was not competent

to give consent. Hence, learned APP submits that the appeal may be

dismissed.

5. We have given careful consideration to the submissions of

learned counsel for the appellant and learned APP for the State. With their

able assistance perused the grounds taken in the appeal memo, annexures

thereto and the investigation papers. It appears that the appellant earlier

filed applications for bail and 2nd respondent gave consent for allowing the

said applications of the appellant for enlarging him on bail. However, the

Special Court rejected the said applications on 30.11.2021.

1    (1965) 1 SCR 243

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6. Thereafter, the appellant filed 2nd bail application, the said

application was also rejected. The investigation officer filed the charge sheet

bearing no. 83/2019. Thereafter, the appellant preferred 3 rd application

before the Additional Sessions Judge, Malegaon. While rejecting the 3 rd

application of the appellant, the Additional Sessions Judge, Malegaon in

paragraph 6 of the order observed thus:-

"06] Perused the documents on record, it appears from the statement of victim that the applicant/accused has kept physical relations with her under the pretext of marriage and when she was pregnant then he discard his relations with the informant. Informant is minor. Her consent was obtained by fraud. At present informant is residing in Reformatory House. Previous bail petition was rejected on the same ground. In this context, learned advocate Shri. M.D. Hiray argued that in bail petition, at Para 6 they have specifically mentioned that the age of accused is 19 years, therefore, there is legal difficulty to perform the marriage. Accused is ready and willing to perform the marriage after attaining the age of 21 years. However, in my opinion assurance by accused to perform the marriage with victim can not be the ground to grant the bail to him. Hence, I pass the following order."

7. The submission of learned counsel for the appellant that the

appellant had consensual sex with the 2 nd respondent cannot be accepted.

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Admittedly, on the date of alleged incident the Respondent No. 2 was minor

and she was not competent to give her consent. The reliance placed by the

learned counsel for the appellant in the case of S. Varadrajan (supra) is

misplaced in the facts of the present case, since in the facts of the present

case sections 4,6 and 8 of the The Protection of Children from Sexual

Offences Act, 2012 and sections 3(1)(w), 3(2)(v-a) of The Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015

are invoked. There is no change in circumstances to consider the bail

application of the appellant. In case, the appellant is released on bail, there

is every possibility of tampering with the prosecution evidence and

witnesses. In that view of the matter, we are not inclined to entertain the

appeal. Hence, the appeal stands dismissed.

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

and confined to the adjudication of the present appeal only and the Trial

Court shall not get influenced by the said observations during the course of

trial.

9. We direct the concerned Trial Court to frame charge, if already

not framed, and commence the trial immediately and complete the same as

expeditiously as possible, however, within six months from today.

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10. We appreciate the able assistance rendered by Advocate

Mr. Ganesh Bhujbal, appointed for representing the Respondent No 2. We

quantify his fess at Rs. 7500/- to be paid by High Court Legal Services

Committee, Mumbai, within four weeks from the receipt of copy of this

order.

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




Bhagyawant Punde