Bombay High Court
Rohit Bacchan Singh vs The State Of Maharashtra And Anr on 11 August, 2022
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2461 OF 2022
IN
CRIMINAL APPEAL NO.749 OF 2022
Rohit Bacchan Singh ..... Applicant
Versus
The State of Maharashtra & Anr. .... Respondents
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Mr. Aniket Ujjwal Nikam, Advocate a/w. Piyush Toshnival,
Vivek Arote i/b. Amit Icham, for the Applicant.
Mr. Yogesh Y. Dabke, APP for the Respondent-State.
Mr. Prasad B. Kulkarni, Advocate (appointed) for Respondent
No.2.
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CORAM :SARANG V. KOTWAL, J.
DATE : 11th AUGUST, 2022
P.C. :
1. This is an application for bail pending hearing and
final disposal of Criminal Appeal No.749/2022. The applicant
Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
was convicted and sentenced by learned Special Judge under
PRAKASHRAO DESHMANE
DESHMANE
Date:
2022.08.12
17:49:52 +0530
POCSO Act, Greater Mumbai in POCSO Case No.794/2021 vide
judgment and order dated 16.4.2022. The applicant was
arrested on 13.5.2021 and since then he is in custody. The
applicant was convicted for commission of offence punishable
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Deshmane(PS)
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under Section 4 of the Protection of Children from Sexual
Offences Act, 2012 (for short, 'POCSO Act') and was sentenced
to suffer RI for ten years and to pay fine of Rs.20,000/- and in
default to suffer RI for three months. The applicant was also
convicted for commission of offence punishable under Section
376(1) of IPC but separate sentence was not imposed in view of
the sentence under Section 4 of the POCSO Act. He was
granted set-off for the period he had undergone as an under-
trial prisoner under Section 428 of Cr.P.C.. Out of fine amount,
Rs.15,000/- was directed to be paid to the victim.
2. Heard Shri Aniket Nikam, learned counsel for the
applicant, Shri Yogesh Dabke, learned APP for respondent No.1-
State and Shri Prasad Kulkarni, learned appointed advocate for
respondent No.2.
3. Learned counsel for the applicant submitted that
the evidence of the victim is not trustworthy. She has given
vague narration of the incident. There are indications that she
was trying to save herself because her mother had threatened
to lodge a complaint against her.
4. He submitted that even the mother's evidence does
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not inspire confidence. The prosecution was launched at the
behest of one Kavita, but, she was not examined. No
explanation is offered for non-examination of said Kavita.
5. He further submitted that in any case even as per
the prosecution case there was a love relationship; and the
victim and the applicant are to get married, therefore,
sympathy should be shown to the applicant for consideration of
bail.
6. He submitted that the appeal is not likely to be
heard in the near future. The applicant has no other criminal
antecedents. He is only 21 years of age as of today.
7. Learned counsel for the applicant also relied on the
order dated 7.12.2020 passed in Interim Application
No.818/2019 in Criminal Appeal No.1415/2019 passed by a
co-ordinate Bench of this Court.
8. Learned counsel for the respondent No.2-victim as
well as learned APP for the State submitted that the date of
birth of the victim cannot be disputed and, therefore, as she
was below the age of 16 years, all the offences stand proved.
Her consent is immaterial.
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9. I have considered these submissions. I have also
perused the depositions of the witnesses annexed to the appeal
memo. The victim is examined as PW-2 at the time of trial.
From her evidence, it is quite apparent that she wants to help
the applicant and she really had no grievance against him. She
has deposed that her date of birth is 1.7.2006. She had not
given exact dates but she has mentioned that on 3 rd she had
gone to her friend's house. She returned on 5 th. She did not tell
her mother anything. She had gone to her friend's place
because of quarrel with her mother. Her mother informed one
Kavita about her behaviour. Then the mother beat her. At that
time the victim told her about her physical relations with the
applicant. He had proposed to her in the month of December.
She has stated that she had physical relations with him on one
occasion. She has categorically stated that she was in love with
the applicant. He had told her that he would marry her. He had
even met her grandmother and aunt in that connection. The
applicant was called by the aforementioned Kavita.
She was cross-examined by the SPP because she
had not supported the prosecution case and she had resiled
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from her earlier statement. In that cross-examination, she
deposed that on 11.5.2021, the applicant had called her to his
house and then had established forcible relations with her. She
had told this incident to her mother on 13.5.2021.
She was again cross-examined on behalf of the
applicant. At that time, she again changed her version. She
deposed that she was in love relationship with the applicant
and they had consensual sexual relations. He had not exerted
any force on her. He had never committed forcible acts with
her. She has further deposed that after she was beaten by the
aforesaid Kavita, she had gone to police station to lodge report.
She was asked by Kavita to mention that the applicant has used
force on her and that there was no love relationship with him.
She had categorically stated that she would be performing
marriage with the applicant after she completed eighteen years
of age. She has further stated that she had given statement to
the police as asked by Kavita but before the Court she was
telling the truth.
10. PW-1 is the mother of the victim. She has produced
the birth certificate on record at Exhibit-16. The date of birth is
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mentioned as 1.7.2006. She has admitted that when the victim
did not return for two days, she threatened the victim that she
would lodge report if she would not tell her about the
whereabouts. Then the victim returned home. Then this was
told to Kavita. Kavita talked with the victim and then Kavita
told PW-1 that rape was committed on the victim and she asked
PW-1 to lodge report. The victim was crying and then she told
about the incident. Then she went to the police station and
lodged the FIR.
In the cross-examination, she has admitted that it
was decided between the victim's family and the family of the
applicant that after the victim completed eighteen years of age,
they would get married and that they had given the statement
as was instructed by Kavita.
11. Thus, it does appear that the victim wants to help
the applicant. Her deposition is more important but she has not
given clear answers. At various stages, she had changed her
narration. She had stated that she was in love with the
applicant. Her mother's deposition also indicates that she had
threatened the victim that she would be lodging complaint
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against her, therefore, the victim came back. Thus, sufficient
doubt is created about the prosecution story. All these aspects
will have to be decided during final hearing stage. At this
stage, the applicant has sufficiently made out a case for grant of
bail. Hence, the following order :
:: O R D E R ::
i. During hearing and final disposal of Criminal Appeal
No.749/2022, the applicant is directed to be released on
bail on his furnishing P.R. bond in the sum of Rs.30,000/-
(Rupees Thirty Thousand Only) with one or two sureties
in the like amount.
ii. Application is disposed of accordingly.
(SARANG V. KOTWAL, J.)
Deshmane (PS)
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