Bombay High Court
Balu Sukhdeo Tongare vs The State Of Maharashtra And Anr on 26 August, 2022
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1058 OF 2022
IN
CRIMINAL APPEAL NO.343 OF 2022
Balu Sukhdeo Tongare .... Applicant
versus
State of Maharashtra & Ors. .... Respondents
.......
• Mr. Aniket Vagal, Advocate for Applicant.
• Mr. R. M. Pethe, APP for the State/Respondent No.1.
• Ms. Manisha Jagtap (Appointed Advocate) a/w Mr. Shubham
Ghade, Advocate for Respondent No.2.
CORAM : SARANG V. KOTWAL, J.
DATE : 26th AUGUST, 2022
P.C. :
1. The Applicant is convicted and sentenced for
commission of offence punishable u/s 376-D of the Indian Penal
Code and u/s 4 of the Protection of Children from Sexual
Offences Act, 2012. There were four accused in all. The
Applicant was the accused No.1. He was sentenced to suffer
rigorous imprisonment for 20 years and to pay a fine of
Nesarikar
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Rs.5,000/- and in default to suffer rigorous imprisonment for
three years. He was acquitted from the charges of commission of
offence punishable u/s 506 r/w 34 of the Indian Penal Code. In
view of sentence imposed u/s 376-D, no separate sentence was
imposed for offence punishable u/s 4 of POCSO.
2. Heard Mr. Aniket Vagal, learned counsel for the
Appellant, Ms. Manisha Jagtap, learned counsel for Respondent
No.2 and Mr. R. M. Pethe, learned APP for the State.
3. The prosecution case is reflected in the evidence of
P.W.1, victim herself. She has deposed that at the time of
deposing before the Court she was 16 years and 5 months old.
She has deposed that on 20/03/2016 her parents had gone to
another village and her brother was in the agricultural field. At
about 12.00 p.m. she was proceeding towards her agricultural
field to give tiffin to her brother. At that time, the accused
Ramdas Lilake met her. He asked her to accompany him. She
refused and proceeded ahead. After that, the present Applicant
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met her. He lifted her and took her in the bushes. He fell her on
the ground and committed sexual assault. At that time other
three accused came there and they also committed sexual
intercourse against her wish. Then she went home. Her parents
returned at about 04.00 p.m. Then she disclosed the incident to
her parents. After that they went to the house of the accused
Ramdas Lilake. He got annoyed. Then they approached the
police and lodged the report. She produced her clothes. She
identified the clothes of the accused produced in the Court. In
the cross-examination she deposed that the Applicant was
related to her as distant maternal uncle. She further deposed
that nobody witnessed when the Applicant lifted her. She did
shout for help.
4. The evidence of the Medical Officer mentions that the
victim was examined on 22/03/2016. On the examination, it
was observed that, though there were no external injuries,
however the labia majora was having swelling and Oedema and
the hymen was torn.
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5. The impugned judgment shows that the semen stains
on the top worn by the victim matched with the DNA profile of
the Applicant.
6. Learned counsel for the Applicant submitted that it was
a consensual relationship. The victim was more than 18 years of
age. The prosecution has not proved that she was below 18
years of age. There were no external injuries. The Applicant is in
custody for about 8 years and therefore he should be released on
bail.
7. Learned APP as well as learned counsel for the
Respondent No.2 opposed this application. They relied on the
evidence of the victim and the DNA report mentioned in the
judgment which strongly indicates the evidence against the
Applicant.
8. I have considered these submissions. From the entire
deposition of the victim/P.W.1 there is nothing to suggest that it
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was a consensual relationship. She has categorically stated that
she was taken to bushes. She tried to shout for help, but nobody
was around. Thus at this stage it is not possible to observe that it
was a consensual relationship. The case assumes seriousness
because after the Applicant, the other three accused also
committed rape on her at the same spot one after other. DNA
report shows that semen stains match with the DNA profile of
the Applicant. The stains were on the clothes of the victim. All
these are very strong circumstances. The offence is very serious.
The imposed sentence is for 20 years. Therefore no case for
grant of bail pending Appeal is made out. The application is
rejected.
(SARANG V. KOTWAL, J.)
