Bombay High Court
Dilip Ramchandra Gurdhalkar vs The State Of Maharashtra And Anr on 6 December, 2022
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1637 OF 2022
IN
CRIMINAL APPEAL NO.557 OF 2022
Dilip Ramchandra Gurdhalkar .... Applicant
versus
State of Maharashtra & Anr. .... Respondents
.......
• Mr. Dinesh Adsule a/w Vijaykumar B. Dhakane, Advocate for
Applicant.
• Smt. M. R. Tidke, APP for the State/Respondent No.1.
• Mr. Ramakant D. Patil, Advocate for Respondent No.2.
CORAM : SARANG V. KOTWAL, J.
DATE : 06th DECEMBER, 2022
P.C. :
1. Heard Mr. Dinesh Adsule, learned counsel for the
Applicant, Mr. Ramakant D. Patil, learned counsel for Respondent
No.2 and Smt. M. R. Tidke, learned APP for the State.
2. This is an application for bail pending the Appeal filed
Digitally
signed by
by the Applicant challenging the Judgment and Order dated
MANUSHREE
MANUSHREE V
V NESARIKAR
NESARIKAR Date:
2022.12.07
17:24:24
+0530
Nesarikar
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04/05/2022 passed by the Special Judge, Pune, in Special
(Child Protection) Case No.468/2017. The Applicant was
convicted for commission of offence punishable u/s 363, 366-A,
376(2)(i) of the Indian Penal Code and u/s 4 and 12 of the
Protection of Children from Sexual Offences Act, 2012.
3. The prosecution case is that the victim i.e. P.W.2 was
missing from her house from 05/05/2017. Therefore her family
lodged FIR about her missing. According to the mother of the
victim, her date of birth was 30/01/2002. Therefore she was
about 15 years and 4 months at the time of incident. Suspicion
was expressed against the Applicant, who was her neighbour
and he was also missing since that day. Both of them were found
on 02/08/2017. The Applicant faced trial for various offenes for
which was ultimately convicted.
4. Learned counsel for Applicant submitted that it was a
clear case of love affair and consent. The date of birth of the
victim is seriously disputed. The prosecution has not proved that
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she was below 18 years of age. Therefore none of the offences is
made out against the Applicant. He submitted that the Applicant
was on bail during trial and he has not misused that liberty.
5. Learned counsel for Respondent No.2 as well as
learned APP opposed this application on merits. They submitted
that the date of birth of the victim is clearly established through
the birth certificate and therefore there is no scope to argue that
she was not a minor below 18 years of age at the time of
offence. Therefore consent would be immaterial.
6. I have considered these submissions. The evidence of
P.W.2 - victim is on record. She has deposed that her date of
birth was 30/01/2002. She used to reside with her parents,
grandparents, uncle and brother. She was knowing the
Applicant. He used to reside opposite their house. She got
acquainted with him prior to 1 ½ years. He had given her a
mobile phone and they used to talk through that phone. On
05/05/2017 her father noticed that she was talking on that
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mobile phone. He noticed that she was talking with the
Applicant. The father got angry. He scolded and beat her and
then drove her out of the house. The victim P.W.2 then herself
called the Applicant and informed him about the incident. He
came to the place where she was standing. Then they went to
another place. He told victim that they would perform marriage.
He took her to another place on his two wheeler. The victim has
stated that because she was angry with her father, she was ready
to go with the Applicant. Both of them then went to Hadapsar in
a Rikshaw. Then they went to Hyderabad. Then they came to
Parbhani. They stayed there for 1 ½ months in a rented room.
P.W.2 insisted for marriage. It is her case that the Applicant
established physical relations with her against her wish. He used
to go for attending his job. Then they came to Kingaon and
stayed there in a rented room. They performed marriage in a
temple. His business was not going on well. The victim wanted
to return back to her house. But the Applicant told her that since
they were married, he would not allow her to return home.
Once they were going to Aurangabad, police came there and
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met them in the bus. They took both of them in custody and
brought them to Mundhwa police station.
7. This narration of the incidents given by the victim
herself shows that it was a clear case of love affair and
consensual affair though she has stated that she was not willing
for the sexual intercourse. It is clear from her evidence that they
had gone to various places and therefore there is considerable
force in the submissions that it was a consensual relationship.
8. However, the question still remains as to whether she
was below 18 years of age, making the consent immaterial. For
that purpose the prosecution has relied on the evidence of the
P.W.1-mother. She had produced the birth certificate before the
police. It is taken on record at Ex.21 in the trial. However, the
evidence of the Investigating Officer P.W.5 PSI Pratap Giri throws
some doubt about authenticity of this birth certificate. In his
cross-examination he has admitted that he had not recorded
statement of any concerned witness who had produced the birth
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certificate of the victim. He did not issue any communication to
verify the authenticity of the birth certificate.
9. These admissions raise some reasonable doubt about
the authenticity of the birth certificate. Moreover only one letter
addressed by the Investigating Officer to the school authorities is
produced at Ex.39. There is no further reference to any bonafide
certificate from the school showing her date of birth.
10. Considering this background, some reasonable doubt is
created about the age of the victim and there is force in
submissions that the prosecution has not conclusively proved
that the victim was below 18 years of age.
11. All these issues will have to be decided during the final
hearing stage. Today I am only considering grant or refusal of
the bail to the Applicant. The Applicant was on bail during trial.
He has not misused the same. The victim P.W.2 herself had asked
the Applicant to take her away. This was clear case of consent.
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Considering all these issues, bail can be granted to the Applicant
pending final disposal of the Appeal.
12. Hence, the following order :
ORDER
(i) During pendency and final disposal of the
Criminal Appeal No.557 of 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) Interim Application stands disposed of
accordingly.
(SARANG V. KOTWAL, J.)
