Bombay High Court
Vinayak Dnyandev Gore vs The State Of Maharashtra on 7 January, 2022
Bench: C.V. Bhadang
17-ba-3460-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.3460 OF 2021
Mr.Vinayak Dnyandev Gore ... Applicant
Vs.
The State of Maharashtra & Anr. ...Respondents
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Mr.Amol Patankar i/b Mr.Ashish Sawant for the Applicant.
Mr.R.M. Pethe, APP for the Respondent -State.
Mr.Shraddha Sawant for Respondent No.2.
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Digitally signed
NILAM by NILAM
SANTOSH
SANTOSH
CORAM : C.V. BHADANG, J.
KAMBLE
KAMBLE Date: 2022.01.13
10:45:22 +0530
DATE : 7 JANUARY 2022
(Through Video Conferencing)
P.C.
. This is an application for bail. The Applicant
has been charge-sheeted for the offence punishable under
Section 363, 366 and 376 read with Section 34 of the Indian
Penal Code and Section 4 of the Protection of Children
From Sexual Offence Act, 2012 and Section 9 and 10 of the
Prohibition of Child Marriage Act, 2006.
2. The prosecution case, as disclosed from the
complaint of the mother of the victim, is that on 11 June
2021 at about 11.00 p.m. the victim girl was found missing,
from the house. A search of the victim girl was made till 5.00
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p.m. in the evening, on the following day. However, she
could not be traced. At 5.00 p.m. on the following day, the
son-in-law of the complainant sent certain photographs on
the whats-app showing that the victim girl had married with
the Applicant, who is a resident of Umre Page, Taluka-
Pandharpur, District-Solapur, whereupon enquiry was made
with the father of the Applicant, who expressed ignorance in
the matter. A complaint was made to the Police on 13 June
2021 at about 9.00 p.m. at Karkam Police Station.
According to the complainant an unidentified person
brought the girl at the Police Station. The girl has returned
to her parents.
3. On the basis of the complaint lodged an offence
came to be registered and after investigation a charge-sheet is
filed.
4. The record discloses that at the time of the
incident the girl was 14 years and 7 months of age. The girl
was subjected to medical examination which shows that she
has been subjected to sexual intercourse after the purported
marriage.
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5. I have heard the learned counsel for the
Applicant and the learned Additional Public Prosecutor.
Perused record.
6. The learned counsel for the Applicant has placed
reliance on the decision of this Court in case of Sunil
Mahadev Patil V/s. State of Maharashtra1. It is submitted
that the applicant is falsely implicated.
7. It is alternatively submitted that even going by
the prosecution case, the girl had attained the age of
understanding and had accompanied the Applicant of her
own accord and there was also a ceremony of marriage which
was undergone, after which according to the prosecution, the
girl was subjected to sexual intercourse. It is submitted that
there was no allegation that the girl was harmed and quite to
the contrary the Applicant is alleged to have entered into
marriage with the girl. The learned counsel, however, did not
dispute that the girl had not attained marriageable age as per
law, nor the age of consent.
8. The learned Additional Public Prosecutor has
submitted that the offence is serious as a minor girl was
kidnapped and has been subjected to sexual intercourse after
1 2016(3) Bom. C.R. (Cri.) 435
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a purported marriage which cannot be said to be marriage in
the eyes of law.
9. I have carefully considered the rival
circumstances and the submissions made.
10. This Court in the case of Sunil Mahadev Patil
(supra) , was concerned with more or less similar facts. In
that case, the prosecutrix was aged 15 years, while the
accused was 20 years old. From the statement of the
prosecutrix and the witnesses, it was revealed that both of
them were in love with each other and the girl had eloped
with the accused and they had garlanded each other in a
temple i.e. a ceremony in the nature of marriage.
11. This Court considering the over all
circumstances, and particularly the changed social context
has observed thus, in paragraph 10:
"10. The offence of rape can be
distinguished on the basis of the intention
of the accused. There are incidents of rapes
committed by gang like the case of
Nirbhaya or Maya Thagi or Mathura which
cannot be forgotten by Indian Society. So
also rape committed in a savage manner or
repeatedly by a single accused. There are
some instances of rape which take place as a
man wants to satisfy his lust and animal
within him overpowers his reason. There
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are instances of rape where a man and a
woman both are in love with each other and
get involved into sexual relationship due to
either physical or psychological need and in
such type of rape, there is no violence which
exists in other types of rape.
12. This Court has further held thus in paragraph 12 of
the Judgment:
"12. The overall considerations while deciding
such applications can be summed up as -
When a boy and a minor girl are in love with
each other and chose to live together without
consent of their parents, then the following
factors are to be considered:
(i) What is the age of the prosecutrix, who
is minor.
(ii) Whether the act is violent or not.
(iii) Whether there are antecedents or not.
(iv) Whether the offender is capable of
repeating the Act or not.
(v) Whether there is likelihood of threats or
intimidation, if at all the boy is released.
(vi) Whether any chance of tampering with
the material witnesses when their
statements are recorded.
(vii) It is also to be taken into account in
such cases that a boy in his early 20's
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deserves to get employment and to plan,
stabilize and secure his future.
In the circumstances, this Court proceeded to grant
bail.
13. Coming to the present case, the girl was on the verge
of attaining 15 years of age and the Applicant was 20 years of
age on the date of incident.
14. In this case, the investigation is complete and the
charge-sheet is filed the Applicant was arrested on
16.06.2021 and is in custody since then. In the
circumstances, I find that further detention of the Applicant
pending trial is not necessary.
15. In the circumstances, the following order is
passed.
ORDER
(i) The applicant be released on bail, on
executing a P.R. Bond in the sum of Rs.25,000/-
with one or two solvent sureties, in the like
amount.
(ii) The applicant shall not directly or
indirectly make any attempt to contact or to
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influence the victim or any other prosecution
evidence/witnesses.
(iii) The Applicant shall not make any attempt
to contact the victim.
(iv) In the event of breach of the said
condition, liberty to the prosecution to apply for
cancellation.
(v) Bail bonds to be furnished before the
learned Special Judge.
(vi) The Criminal Application is disposed of in
the aforesaid terms.
C.V. BHADANG, J.
N.S. Kamble page 7 of 7
