Ajay Abhiman Waghmare vs The State Of Maharashtra And Anr
2022 Latest Caselaw 8666 Bom

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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION

                                   INTERIM APPLICATION NO.2828 OF 2022
                                                    IN
                                 CRIMINAL APPEAL [STAMP] NO.14002 OF 2022
                                                    .....
                                                   with
                                   INTERIM APPLICATION NO.2829 OF 2022
                                                    IN
                                 CRIMINAL APPEAL [STAMP] NO.14002 OF 2022

                       Ajay Abhiman Waghmare               ..... Applicant
                                   Versus
                       The State of Maharashtra & Anr.     .... Respondents

                                                    -----
                       Mr. Rajesh P. Khobragade, Advocate a/w. Raj Gupta, for the
                       Applicant.
                       Mr. R.M. Pethe, APP for the Respondent-State.
                                                    -----

                                                     CORAM :SARANG V. KOTWAL, J.

DATE : 30th AUGUST, 2022 PRADIPKUMAR PRAKASHRAO

P.C. :

DESHMANE

Digitally signed by PRADIPKUMAR PRAKASHRAO DESHMANE Date: 2022.08.30 17:31:13 +0530

1. These two applications are for suspension of

sentence and release of the applicant on bail during

pendency and final disposal of Criminal Appeal (Stamp)

No.14002/2022.

2. Heard Shri Rajesh Khobragade, learned counsel

for the applicant and Shri R.M. Pethe, learned APP for the 1 of 6

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State.

3. The applicant was accused No.2 in Special Case

No.310/2017 before learned Special Judge under POCSO

Act, Mumbai. Vide judgment and order dated 13.6.2022,

learned Judge convicted the applicant for commission of

offences punishable under Section 376-D, 354-A, 342,

506(II) of IPC and under Sections 4, 6 and 12 of the

Protection of Children from Sexual Offences Act, 2012

(POCSO Act). The maximum punishment imposed on him

was for twenty years besides imposition of fine.

4. Learned counsel for the applicant submitted that

the applicant has not committed rape on the victim. He is

attributed no role. The allegations against him are that he

latched the room from outside when accused No.1

committed rape on the victim. The applicant would not have

known the intention of the accused No.1. There are too

many important contradictions in the evidence of the victim.

The allegations regarding videographing the act are not

supported by evidence because such video is not produced

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on record. The applicant is in custody since 2017 and,

therefore, considering the weak evidence against him and

the minor role attributed to him, he may be released on bail

by suspending the sentence.

5. Learned APP, on the other hand, opposed this

application. He submitted that the victim's evidence is

sufficient to convict the applicant. The offence is very

serious. Her evidence is supported by medical evidence. She

was tortured by the accused. Her brother has seen the

objectionable video. Therefore, no sympathy can be shown

to the applicant.

6. I have considered these submissions and I have

also perused the evidence of the victim and other witnesses.

The victim was examined as PW-1. Her date of birth was

16.11.2001. The incident had taken place in January, 2017.

The victim was knowing all the accused including the

present applicant. Accused No.1 had proposed marriage to

her. She had refused as accused No.1 was already married.

In January, 2017 on one afternoon she was proceeding

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towards her house from the play-ground. At that time,

accused No.1 and the present applicant stopped her. They

came near her. Accused No.1 asked her to follow him. She

refused. After that, accused No.1 gagged her mouth and the

applicant caught her hands. She tried to resist, but failed.

The accused No.1 and the applicant then took her to a tin-

room situated in an isolated lane. The room was empty. The

neighbours were not present as their doors were locked. She

was trying to shout but accused No.1 had pressed her

mouth. She somehow tried to get free but the applicant

pushed her back inside the room. Accused No.1 asked the

applicant to lock the room from outside. Thereafter accused

No.1 committed rape on her. Applicant No.2 was standing

outside. After commission of offence, accused No.1

threatened the victim not to divulge that incident to anybody

as the applicant had shot the video of the act and accused

No.1 threatened to make it viral. Because of this fear, she did

not inform anybody. One of her friends told her that said

video was shown to that friend by the applicant.

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7. In February, 2017 again she was forcibly taken

by accused No.1 to a tin-room and again he committed rape.

On 19.4.2017 the victim's brother came to know about the

incident. After that the victim told about the incident to her

brother and mother. The mother got disturbed. Finally on

21.4.2017, the victim lodged her report. She was referred to

medical examination and then the investigation continued.

8. The medical officer was examined as PW-10. His

evidence records that the Medical Officers had opined that

the overall findings were consistent with sexual assault. The

medical examination was conducted on 21.4.2017 and the

incidents had taken place in January and February 2017.

9. Thus, there is sufficient material against the

applicant. All the points raised by learned counsel for the

applicant can be considered at the stage of final hearing of

the appeal. However, at this stage of considering bail, there

is sufficient incriminating material pointed out by learned

APP. The offence is very serious. The act of the applicant

would fall within the meaning of gang rape as defined under

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Section 376-D of IPC, which reads thus :

"376-D. Gang rape.-- Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim."

10. In this view of the matter, no case for grant of

bail or suspension of sentence is made out. Interim

Applications are rejected.

(SARANG V. KOTWAL, J.)

Deshmane (PS)

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