Pratik Vilas Shelar vs The State Of Maharashtra
2021 Latest Caselaw 4840 Bom

                                             8-BA-2726-2019.odt


 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
      CRIMINAL APPELLATE JURISDICTION

           BAIL APPLICATION NO. 2726 OF 2019

Pratik Vilas Shelar,
Aged: 24 years, Occ: Education,
Residing at Parmeshwar Krupa,
Opp: Rupam Marble, Khambalpada,
Dombivali West, Tal: Kalyan,
District: Thane.
At present lodged at Kalyan District
Prison, Adharwadi at Kalyan            ... Applicant

          Vs

1 The State of Maharashtra
At the instance of Senior Inspector
of Police, Dombivali Police Station,
vide their C.R.No.I-260 of 2018      ... Respondent No.1

2 Smt. Anuja Abhimanyu Shitole,
Age: 42 yrs., Occ: Housewife,
residing at B/402, Pechale Society,
Kelkar Road, Opp: Gurudev Hospital,
Dombivali (E), Thane                ...Respondent No.2
Respondents
                           ...

Mr. Manoj Mohite, Senior Advocate i/by Mr. Sandeep
Kumar Singh for the Applicant.

Mr. Yogesh Dabke, APP for the Respondent No.1-State.

Mr. Anjani Kumar Singh i/by Mr. Siddhesh S. Sutar
advocate for Respondent No.2.


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PSI Ajinkya More attached to Dombivali P.Stn. Present.


          CORAM : SANDEEP K. SHINDE J.
          RESERVED ON :  5th MARCH, 2021.
          PRONOUNCED ON : 17th MARCH, 2021.

JUDGMENT:

Heard learned counsel for the applicant,

intervenor and the learned Additional Public Prosecutor for

the State.

2 Applicant seeks his enlargement on bail in

connection with Crime No.I-260 of 2018 registered with

Dombivali Police Station for the ofence punishable under

Sections 376-D, 363, 506 of the Indian Penal Code, 1860

('IPC' for short) and Sections 3,4,8 and 12 of the Protection

of Children From Sexual Ofences Act, 2012 ('POCSO' for

short)

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FACTS-PROSECUTION CASE:

3 Victim a complainant, is, twelth standard

student. At the material time, she was 16 year old. On the

friendship day, i.e., on 5th August, 2018, she met the

applicant to whom she knew since one year. Co-accused in

the subject crime is, juvenile-in-confict-with law. Victim

alleged, on the pretext of having a joy ride on the scooty,

victim accompanied applicant and the co-accused, at

Kambalpada. All three reached at Kambalpada, Dombivali

at around 8.15 p.m. whereafter they went in a room

allegedly belonging to applicant and/or his family. Victim

alleged, applicant and the co-accused committed forcible

sexual assault on her although she resisted the same. She

was threatened of dire consequences if she would reveal

about the assault to anyone. It appears, in the meantime,

victim's mother was searching her as cell phone of the

victim was reported switched of. After reaching home, she

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narrated the incident to her mother and thereafter report

was lodged with Dombivali Police Station.

4 Applicant was arrested on 6th August, 2018.

Investigation is over and the charge-sheet has been fled.

SUBMISSIONS & REASONS:

5 Mr. Mohite, learned Senior Counsel for the

applicant has taken me through the medical reports, what's

app chats between the applicant and the victim and the

reports of the Chemical Analyser-Forensic Science

Laboratory, to contend that, material on record does not

indicate that the victim was sexually assaulted by two

persons. Mr. Mohite, submits that what's app chats

indicates and suggests intimacy between the applicant and

the victim. I refrain, myself from commenting on the what's

app chats. However, Chats also suggest, habit of the victim

and the applicant of smoking ganja (or colloquially smoking

pot).

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6              In Gurbaksh Singh Sibbia v. State of Punjab 1, a

constitutional Bench of Supreme Court, held that ' bail

decision must enter cumulative efect of variety of

circumstances justifying the grant or refusal of bail .'

7 Be that as it may, victim was examined by Doctor

on 6th August, 2018. She told him, two of her gent friends

fell down her, and sexually assaulted her simultaneously.

However, while she was examined, no injuries were noted

on, her chest or back. Forensic Medical examination report

of victim of sexual assault shows, no injuries on body, were

noted. It may be stated that Part (X) of the report says, "no

evidence of injuries suggestive of application of force was

found." Yet, incident narrated by the victim suggests, she

was forcibly called by her two gent friends at 8.30 p.m. at

Kambalpada and sexually assaulted her. Thus, the

narration in the medical papers, prima-facie, suggests,

1 1980 (2) SCC 565

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victim improved her tale,since while lodging complaint, she

reported that, she accompanied the applicant and the co-

accused for a ride on the scooty. It may be stated, though

the forensic medical examination report says that overall

fndings were consistent with the sexual assault it was

subject to Forensic Science Laboratory report. I have

perused the Forensic Science Laboratory report. Clothes of

the victim and of the applicant were sent to Forensic

Science Laboratory for examination. As well, vaginal swab

was also sent. In so far as the clothes are concerned, no

semen was detected on the clothes of the victim and so

also vaginal swab of the victim, no semen was detected.

8 Thus, the medical reports and the Forensic

Science Laboratory report, together leads me to infer that

prima-facie, allegations of penetrative sexual assault by the

applicant and the co-accused on the victim was not likely. It

may be stated that victim narrated incident to medical

officer on two occasions and her narration suggests that

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she was forced by the applicant and the co-accused to

accompany them and also shows, both fell her and forcibly

committed sexual assault on her. Had this been true

assertion, medical examination of the victim and the

Forensic Science Laboratory report would suggest and

corroborate her assertion.

9 Applicant is 24 year old boy and is in custody

since 5th August, 2018, i.e., nearly for two years and six

months.

10 The application was vehemently opposed by the

complainant's advocate. He would argue that what's app

chat would suggest that applicant lured victim to the place

with ill design in his mind and, therefore, Court may not

grant him bail; however, the trial may be expedited.

11        A report was called to ascertain whether trial


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could be expedited. It is reported that 184 sessions cases

of undertrial prisoners are pending in the Court out of which

forty are on daily board from 2017 to 2021.

12 In consideration of cumulative efect of the

circumstances, applicant is directed to be released on bail.

Hence, following order:

ORDER

(i) The applicant in Crime No.I-260 of 2018

registered with Dombivali Police Station, shall be released

on executing PR bond for the sum of Rs.30,000/- with one or

more sureties in like sum.

(ii) The applicant shall attend the concerned police

station once in a month, i.e., on second Monday of every

month commencing from April, 2021 between 11 a.m. to 1

noon till framing of the charge.

(iii) The applicant shall furnish his permanent

residential address and contact number to the Investigating

Officer within seven days from the date of his release on

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bail.

(iv) The applicant shall not tamper with the evidence

or attempt to infuence or contact the complainant,

witnesses or any person concerned with the case

13 The application is accordingly allowed and

disposed of.

14 It is made clear that observations made here-in-

above be construed as expression of opinion for the

purpose of bail only and the same shall not in any way

infuence the trial in other proceedings.

Shambhavi N. Shivgan Digitally signed by

(SANDEEP K. SHINDE, J.) Shambhavi N.

Shivgan
Date: 2021.03.17
18:10:33 +0530




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