Bombay High Court
Anil Khanderao Gaikwad vs State Of Maharashtra And Anr on 15 December, 2022
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.3420 OF 2022
IN
CRIMINAL APPEAL NO.874 OF 2022
Anil Khanderao Gaikwad .... Applicant
versus
State of Maharashtra & Anr. .... Respondents
.......
• Mr. Akshay Bankapur, Advocate for Applicant.
• Mr. S. R. Agarkar, APP for the State/Respondent No.1.
• Mr. Ravi Vittal Asabe, Advocate for Respondent No.2.
CORAM : SARANG V. KOTWAL, J.
DATE : 15th DECEMBER, 2022
P.C. :
1. This is an application for bail pending Appeal. The
Applicant was convicted and sentenced by Additional Sessions
Judge and Special Judge (POCSO), Nashik, by his Judgment and
Order dated 10/08/2022, in Sessions Case (POCSO) No.232 of
2016. At the conclusion of the trial, the Applicant was convicted
Digitally
signed by
for commission of offence punishable u/s 4 r/w 3 of the
MANUSHREE
MANUSHREE V
V NESARIKAR
NESARIKAR Date:
2022.12.19
11:27:01
+0530
Protection of Children from Sexual Offences Act, 2012 and u/s
Nesarikar
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376(1) r/w 506 of the Indian Penal Code. The major punishment
imposed on him was for 7 years besides imposition of fine.
2. The prosecution case is that because of the act
committed by the Applicant, the victim became pregnant and
delivered a child. After that, the FIR was lodged at police
station. The investigation was carried out and the Applicant was
arrested. At that time, the Applicant was 21 years of age. After
conclusion of the investigation, charge-sheet was filed and the
case was committed before the Sessions Court.
3. Heard Mr. Akshay Bankapur, learned counsel for the
Applicant, Mr. Ravi Vittal Asabe, learned counsel for Respondent
No.2 and Mr. S. R. Agarkar, learned APP for the State.
4. Learned counsel for Applicant submitted that it was
clearly a case of consent. Therefore, her age would be relevant.
In that respect, the prosecution has failed to prove that she was
below 18 years of age. In that view, the offence as alleged
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against the Applicant, is not proved and he deserves to be
released on bail pending Appeal. The Applicant was on bail
during trial and he has not misused that liberty. After his
conviction in August, 2022, he was taken in custody.
5. Learned counsel for the Respondent has filed affidavit
for the Respondent No.2. She has made categorical averments in
the affidavit that she has no objection if the Applicant was
granted bail during pendency of the Appeal. The Applicant was
also young at the time of the incident. Learned counsel for the
Respondent supported this affidavit and submitted that the
application for bail pending Appeal be granted.
6. Learned APP however opposed this application. He
submitted that there is DNA report which establishes that the
Applicant was the father of the child. He also submitted that the
date of the birth is properly proved through the extract of
register which was a public document.
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7. I have considered these submissions and in particular, I
have perused the evidence of the victim herself. She has deposed
that the Applicant was in love with her. They used to meet
regularly in the Applicant's cousin's house. Though she has
stated that he had forced him on her and had committed rape,
her deposition shows that they were regularly meeting in that
house resulting in her pregnancy. Her FIR itself mentions that
they used to be in touch on mobile phone regularly. Out of that
their love affair developed. They used to meet in the house of
the Applicant's cousin frequently. All these statements do
indicate that it was a consensual affair.
8. There is hardly any dispute about the paternity of the
stillborn child. The DNA report establishes that the Applicant is
the father of the child and therefore the prosecution has
established that there was physical relationship between the
Applicant and the victim.
9. Therefore, the only question that requires serious
consideration is about her age. Though, the victim had claimed
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that her date of birth was 18/09/1999, the extract of register
which is produced at Ex.30 mentions that her date of birth was
11/09/1999. There is effective cross-examination of P.W.2 Vinod
Sable, Village Development Officer, conducted by learned
counsel of Applicant. This witness has produced the extract of
the register showing entry at Sr.No.321 from September 1999,
wherein there is an entry showing that the victim was born on
11/09/1999. That entry was recorded on 14/09/1999.
In the cross-examination, he has admitted that the
register provides columns for mentioning the names of the
person and his signature/thumb impression who informs the
Gram Panchayat about that particular birth of a child in the
village. In respect of entry at Sr.No.321 this important detail is
missing. Most of the entries on the same page had provided
those details. The name of the victim also appears to be written
subsequently. This witness has admitted that there is no
application for writing that name in front of that entry. Thus
some reasonable doubt is created about the genuineness of this
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information and consequently about the date of birth of the
victim. In this background, there is considerable force in the
submission of learned counsel for the Applicant. All these issues
will have to be decided at the final hearing stage. But from the
discussion above and also taking into consideration that no
objection is given by the Respondent No.2, the Applicant can be
granted bail pending his Appeal.
10. Hence, the following order :
ORDER
(i) During pendency and final disposal of the
Criminal Appeal No.874 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.)
