Bombay High Court
Wasim Tainur Sayyed vs The State Of Maharashtra on 12 October, 2021
Bench: M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO. 868 OF 2021
Wasim Tainur Sayyed Applicant
Versus
State of Maharashtra & another Respondents
Mr. N.P. Bangar, Advocate for the applicant.
Mr. P.G.Borade, APP for respondent/State.
Mr. Amol Gandhi, Advocate for respondent No. 2.
CORAM : M.G. SEWLIKAR, J.
DATE : 12th October, 2021.
PER COURT :
1. This is an application under Section 439 of the Code of
Criminal Procedure for releasing the applicant on bail in connection
with Crime No. 60/2021 registered with Ambhora Police Station,
Beed, for the offences punishable under Sections 376(1), (2), (3), 354,
354(D), 506 of the Indian Penal Code and under Sections 3, 4, 11 and
12 of the Protection of Children from Sexual Offences Act.
2. Facts in brief are that the victim is the daughter of the
informant. Her age was 14 years at the time of the incident. Her
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date of birth is 3rd June, 2006. It is the prosecution case that the
applicant, aged 22 years, used to eve-tease the victim and he had
clicked her photographs. He used to force her to talk with him on
Instagram and Snapchat on the pretext of defaming her on the basis
of those photographs. In the month of December, 2020, the
applicant had sexual intercourse with the victim in the house of
uncle of the applicant. Informant had seen photographs of applicant
and the victim in the cell phone of the victim. On these allegations,
First Information Report came to be lodged on 14th June, 2021.
3. Heard Shri Bangar, learned counsel for the applicant and
Shri Borade, learned APP for the State.
4. Admittedly, the date of birth of the victim is 3 rd June,
2006. the incident took place on 14 th March, 2021 which means that
at the time of the incident the victim was close to 15 years of age.
Learned counsel for the applicant invited attention of this Court to
the statement of the victim recorded under Section 164 of the Code of
Criminal Procedure in which she has stated that she had told her
father that she was in love with the applicant. He placed reliance on
judgment of this Court (Coram : Mrs. Mridula Bhatkar, J.) in the
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matter of Sunil Mahadev Patil vs. State of Maharashtra in Bail
Application No. 1036/2015 dated 3rd August, 2015, in which
considerations for deciding bail application under Protection, of
Children from Sexual Offences Act are laid down. In paragraph No.
12 of the said judgment it is held thus :
12. The overall considerations while deciding such
applications can be summed up as -
When a boy and a minor girl are in love with
each other and chose to live together without consent
of their parents, then the following factors are to be
considered :
(i) What is the age of the prosecutrix, who is
minor
(ii) Whether the act is violent or not.
(iii) Whether there are antecedents or not.
(iv) Whether the offender is capable of
repeating the Act or not.
(v) Whether there is likelihood of threats or
intimidation, if at all the boy is released.
(vi) Whether any chance of tampering with
the material witnesses when their
statements are recorded.
(vii) It is also to be taken into account in such
cases that a boy in his early 20's
deserves to get employment and to plan,
stabilize and secure his future.
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5. In the case of Anirudha Radheshyam Yadav vs. The State
of Maharashtra reported in LAWS(BOM) 2020-1-302, it is held thus :-
4. So far as the offences punishable under Section
4, 6, 8 of POCSO Act (Special law) is concerned, it may
be stated that the provisions of this law are, though,
stringent in nature, would not deter the Court tog rant
or refuse bail in order to secure the ends of justice.
The conduct of the victim is indicative of the fact that
she had left the home of her parents by her own will
and that she had surrendered to the physical desires
of the applicant out of her love and affection for him.
It is not the case of the prosecution that the applicant
had promised to marry her. Additionally, it is also not
a case where under the misconception of the fact, she
had served herself to the desire of the applicant for
physical relations. No doubt, that the applicant,
under the preview of POCSO Act, is a minor, however,
the facts of the present case indicate that she had
sufficient knowledge and capacity to know full import
of what she was doing and had only thereafter
voluntarily joined the complainant.
6. It appears from the evidence collected and the statement
of the victim under Section 164 of the Code of Criminal Procedure
that the applicant and the victim are in love with each other. It
further appears from the First Information Report that the victim had
stored her own image and the image of the applicant in her cell
phone. Learned APP submitted that medical evidence shows that
hymen was ruptured. The conduct of the victim shows that she used
to talk on Instagram and Snapchat with the applicant. She has also
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stated in the statement under Section 164 of the Code of Criminal
Procedure that she and the applicant are in love with each other.
7. Charge-sheet is filed. Applicant is resident of village
Dhamangaon, Tq. Ashti, Dist. Beed. He has roots in the society. He
is not likely to abscond and will be available for trial. He has no
criminal antecedents. Having regard to these facts, I am inclined to
release the applicant on bail. Hence the following order :-
ORDER
i) Application is allowed.
ii) Applicant be released on PR Bond of
Rs. 15,000/- (Rs. Fifteen Thousand) with one solvent
surety in the like amount, in connection with Crime
no. 60/2021 registered with Ambhora Police Station,
Beed, for the offences punishable under Sections
376(1), (2), (3), 354, 354(D), 506 of the Indian Penal
Code and under Sections 3, 4, 11 and 12 of the
Protection of Children from Sexual Offences Act.
iii) Application is disposed of.
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iv) It is clarified that the observations made in the
above order are restricted to the decision of this
application only and the trial Court shall not get
influenced by the same and can come to its
independent conclusion during trial.
( M. G. SEWLIKAR )
Judge
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