Peer Mohammad Ghotu Moh. Ismail vs State Of Mah. Thr. Pso Ps Bibi ...
2022 Latest Caselaw 1069 Bom

                                      1                                      APEAL491.21.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.


                    CRIMINAL APPEAL NO. 491 OF 2021


APPELLANT                   : Peer Mohammad Ghotu Mohd. Ismail
                              Aged about 23 years, Occu. - Driver,
                              R/o Yusufpur, Purkhas, Tq. Chail,
                              Dist. Kaushambi (Uttar Pradesh)

                                             VERSUS

RESPONDENTS                 : 1] State of Maharashtra,
                                 through Police Station Officer,
                                 Police Station, Bibi, Tq. Lonar,
                                 Dist. Buldhana.

                               2] Bhanudas Rangnath Kharat,
                                  R/o Tadshivani, Tq. Sindkhed Raja,
                                  Dist. Buldhana.

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          Mr. Mir Nagman Ali, Advocate for the appellant.
          Mr. T. A. Mirza, A.P.P. for the non-applicant no.1/State
----------------------------------------------------------------------------------------------

             CORAM : V. M. DESHPANDE and
                     ANUJA PRABHUDESSAI, JJ.

DATE : JANUARY 31, 2022.

ORAL JUDGMENT [Per V. M. Deshpande, J.]

Heard. ADMIT. Taken up for final disposal by consent

of the learned counsel for the parties.

2 APEAL491.21.odt

2. This appeal under Section 14-A of the Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

(hereinafter referred to as "the Atrocities Act" for the sake of brevity)

is filed by the appellant since the appellant is felt aggrieved by the

order passed by the learned Additional Sessions Judge, Mehkar, Dist.

Buldhana, dated 22.10.2021 in Bail Application No. 22/2021,

whereby the learned Additional Sessions Judge has rejected the

application for bail filed by the appellant under Section 439 of the

Code of Criminal Procedure.

3. The applicant was arrested by Police Station, Bibi, Dist.

Buldhana in connection with Crime No. 108/2021 for the offence

punishable under Sections 363, 376(1)(i)(j), 506 of the Indian Penal

Code, under Sections 4 and 12 of the Protection of Children from

Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO

Act" for the sake of brevity) and under Sections 3(1)(W)(i)(ii) and

3(2)(v) of the Atrocities Act.

4. Heard Mr. Mir Nagman Ali, learned counsel for the

appellant and Mr. T. A. Mirza, learned Additional Public Prosecutor

for respondent no.1/State.

3 APEAL491.21.odt

5. As per the statement made by the learned Additional

Public Prosecutor for the State, though, separate intimation was

given to respondent no.2/complainant in respect of filing of the

present appeal by the concerned Police Station Officer, nobody is

appearing on behalf of respondent no.2. In our view, hearing of this

appeal can proceed even in absence of the complainant since learned

Additional Public Prosecutor is there to take care of the interest of

the complainant/victim.

6. According to Mr. Ali, learned counsel for the appellant,

further incarceration in jail of the appellant is not required in view of

the fact that the Investigating Officer has already completed the

investigation and filed the final report before the Court. He also

submitted that looking to the age of the appellant, he be released on

bail. He also submitted that there was love affair in between the

appellant and the victim and the victim on her own had eloped with

him and stayed for near about 45 days at the residential house of the

appellant at Kaushambi in the State of Uttar Pradesh.

7. Though, the submissions made by the learned counsel 4 APEAL491.21.odt

for the appellant appear to be attractive, however on a closer

scrutiny of the contents of the charge-sheet, in our view, the

submissions of the learned counsel deserve rejection.

8. The School Leaving Certificate, prima facie, indicates

that the non-applicant no.2/victim was below 18 years of age. In

that view of the matter, she is "child" within the meaning of clause

(d) of Section 2(1) of the POCSO Act. In that behalf, it is the

submission of the learned counsel for the appellant that there is no

primary document contained in the charge-sheet to show the age of

the victim. The said aspect can be considered during the course of

the trial since, during trial, there will be an opportunity for the

prosecution as well as the victim to prove her exact date of birth.

9. We have perused the statement of the victim. It clearly

shows that at no point of time she was having any type of love or

affection towards the appellant and it was the appellant, who tried to

persuade her even against her wish. Not only that, her statement

would show that the appellant had extended threat to her to kill her

younger brother aged about 3½ years, which was precisely the

reason for the victim to accompany with the appellant. The 5 APEAL491.21.odt

statement of the victim coupled with medical opinion, prima facie,

supports the charge of rape. In addition to the statement of the

victim, there are statements of the other prosecution witnesses also,

which clearly implicate the appellant.

10. Be that as it may. The consent obtained by giving threat

and/or even simple consent by a minor has no value in the eye of

law. Therefore, at this stage, the learned counsel for the appellant

cannot press into service the aspect of consent. The appellant is a

resident of the State of Uttar Pradesh. He has no roots in

Maharashtra. In our view, this is not a case wherein this Court

should exercise its jurisdiction to release the appellant on

anticipatory bail.

11. Resultantly, the criminal appeal is dismissed. The

impugned order passed by the learned Additional Sessions Judge,

Mehkar, dated 22.10.2021 in Bail Application No.22/2021, stands

confirmed.

(SMT. ANUJA PRABHUDESSAI, J.) (V.M.DESHPANDE, J.) Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:01.02.2022 16:31