Rajeevkumar Sinha Harishankar ... vs The State Of Maharashtra And Anr
2022 Latest Caselaw 316 Bom

                      R. V. Patil                        1 of 7                     IA 1306.2021.doc



         Digitally
         signed by
TRUSHA
         TRUSHA                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         TUSHAR
TUSHAR   MOHITE                          CRIMINAL APPELLATE JURISDICTION
         Date:
MOHITE   2022.01.11
         11:43:52
         +0530

                                         INTERIM APPLICATION NO. 1306 OF 2021

                                                             IN

                                             CRIMINAL APPEAL NO. 397 OF 2021


                      Rajeevkumar Harishankar Singh                    ...     Applicant


                                    Versus

                      The State of Maharashtra & Anr.                  ...     Respondents
                                                             ......
                      Mr. Shreyas P. Barsawade for the Applicant.
                      Ms. Priyanka Chavan appointed for Respondent No. 2.
                      Mr. S. S. Hulke, APP for the State.
                                                             ......


                                                         CORAM : S. S. SHINDE AND
                                                                 SURENDRA P. TAVADE, JJ.

RESERVED ON : 03rd DECEMBER, 2021 PRONOUNCED ON : 10th JANUARY, 2022

P.C. :

. The Applicant is claiming for suspension of sentence and for

bail. The Applicant was tried for the ofences punishable under

Sections 363, 366-A, 376, 506 of the Indian Penal Code ("IPC" for

short) and under Section 4 of Protection of Children from Sexual

Ofences Act ("POCSO" for short), 2012 .

R. V. Patil 2 of 7 IA 1306.2021.doc

2. The Additional Sessions Judge was pleased to held the

Applicant guilty for the ofences punishable under Sections 363, 366-

A, 376, 506 of I.P.C and under Section 4 of POCSO Act. The

Applicant has been convicted and sentenced to undergo RI for life,

which shall mean imprisonment for the remainder of his natural life for

the ofence punishable under Sections 376 (2) (f) (k) of I.P.C. and

Section 4 of POCSO Act, 2012. He was convicted for the ofence

punishable under Section 363 of I.P.C and to undergo RI for three

years and to pay fne of Rs.5,000/-, in default, shall further RI for one

month. He also convicted for the ofence punishable under Section

366-A of I.P.C and sentenced to RI for three years and to pay fne of

Rs.5,000/-, in default, shall sufer further RI of one month. The

Applicant held guilty under Section 506 of I.P.C and sentenced to

sufer RI for two years along with fne of Rs.5,000/-.

3. It is alleged by the prosecution that the mother of the victim

lodged the FIR on 27th May, 2016 inter alia alleged that her daughter

was abducted by unknown person on 25th May, 2016. On the basis of

the FIR, crime was registered against the unknown person. The

Investigating Ofcer obtained the cell number of the victim on the

basis of CDR/SDR and the location of the victim, was traced at Surat

(Gujrat). Accordingly, the Investigating Ofcer reached to the spot

and apprehended the victim and the Applicant. The Applicant was

arrested on 15th June, 2016. The statement of the victim was

recorded under Section 164 of Cr.P.C before the Special Court. The R. V. Patil 3 of 7 IA 1306.2021.doc

victim gave her date of birth as 20 th November, 1999. The victim was

working in Farsan Factory at Peth-Vadgoan. The Applicant was a

Manger of the said factory. The Applicant developed intimacy with the

victim and told her that he likes her. The victim protested such

behavior of the Applicant and told him that she was too young. She

refused the proposal made by the Applicant. It is alleged that the

Applicant was forcefully searching occasions to speak to the victim for

developing intimacy with her. One day at about 2:00 p.m., the

Applicant told the victim that he has some work with her and he

brought her to a construction site on motorcycle. The Applicant told

the victim that he likes her and he asked to marry her. Thereafter, the

Applicant embraced her and kissed her. The victim prevented him

from further acts. Thereafter, both of them returned to the factory.

The Applicant threatened not to disclose the incident to anybody. It is

further alleged that on 19th May, 2016, the victim stayed with her

maternal aunt. The Applicant came to know the said fact and he called

the victim in the said night and took her in the cabin of paper factory

located near the house of the maternal aunt of the victim. The

Applicant allegedly committed penetrative sexual intercourse with the

victim in the said cabin. The maternal aunt and cousin woke up, at

that time, the victim has not been found in the room. The maternal

aunt and cousin of the victim reached near the paper factory at mid

night and noticed a light in the cabin of paper factory. The cousin of

the victim knocked the door, but nobody opened the door, therefore, R. V. Patil 4 of 7 IA 1306.2021.doc

he peeped inside the cabin. After opening of the door of cabin, the

Applicant ran away. The victim disclosed her aunt that the Applicant

committed sexual intercourse with her. The said information was given

to the mother of the victim, thereafter, brother and more relatives,

arrived at Peth-Vadgaon and then took the victim to their village.

Thereafter, the victim joined her duty in the Farsan Factory as usual.

4. It is alleged that on 25th May, 2016 the Applicant called the

victim outside the house and accordingly victim went out of the house.

The Applicant was waiting for her on the road. The Applicant took the

victim to village Wathar on motorcycle and thereafter, proceeded to

the Satara by bus, thereafter, both of them came to Surat (Gujrat).

The Applicant got job as a watchman at Surat. The Applicant resided

at Surat along with the victim from 25 th May, 2016 to 14th June, 2016.

Thereafter, the Applicant came to be arrested and the victim was

rescued. The statement of the victim was recorded under Section 164

of Cr.P.C. The statements of the witnesses were recorded. After

completion of investigation, the charge-sheet came to be fled against

the Applicant for the ofences mentioned above.

5. To prove the charge against the Applicant, the prosecution has

relied on the evidences of twelve witnesses including the victim, her

mother, maternal aunt, her cousin, panch witnesses, Medical Ofcer,

Head Master, Investigating Ofcer, etc. On the basis of the evidence

on record, the trial Court convicted the Applicant for the ofences as R. V. Patil 5 of 7 IA 1306.2021.doc

mentioned above.

6. It is contended that the prosecution has failed to prove the age

of the victim. It is contended that the Applicant was above age of 18

year at the time of alleged incident. It is contended that if the evidence

of the victim is read as it is, she is consenting party to the sexual

intercourse. It is contended that the trial Court has not appreciated

the evidence on record in proper perspective and has come to

incorrect conclusion. It is contended that there is no possibility of early

hearing of the appeal, therefore, the Applicant prays for suspension of

the sentence and bail during the pendency of the appeal.

7. Heard learned Counsel for the Applicant, the victim and the

learned APP for the Respondent-State.

8. On going through the evidence of the victim it appears that the

prosecution case divides into three parts. The frst part is that the

incident allegedly occurred on a construction site few days prior to 19 th

May, 2016. The Second part of sexual assault made by the Applicant

on the victim in the intervening night of 19 th May, 2016 to 20th May,

2016 in the cabin of the paper factory of PW-3. The third part of the

prosecution related to kidnapping of the victim is on 25 th May, 2016 to

Surat (Gujrat). The victim has elaborately given the evidence on the

third part of story of the prosecution.

R. V. Patil 6 of 7 IA 1306.2021.doc

9. The core question raised by the Applicant is that the

prosecution has failed to prove age of the victim. On going through

the evidence of the victim, she deposed that her date of birth is 20 th

November, 1999. Similarly, her mother deposed that the victim born

in the month of Shravan, 1999. The said evidence is not at all

disputed by the defense in the cross-examination of the victim as well

as her mother.

10. The prosecution has laid on the evidence of Head Master Mr.

Ramrao R. Patil (PW-8). He produced on record bonafde certifcate of

the victim, on the basis of general register maintained by the school.

Admittedly, the victim had taken admission in the Vadgaon Vidyalay

on 14th July, 2012 and she left the school on 31 st January, 2015. So it

cant be said that, on the basis of the School Leaving Certifcate issued

by earlier school Headmaster Mr. Ramrao Patil (PW-8) recorded the

date of birth of the victim as 20 th November, 1999. On the basis of the

above facts, learned Counsel for the Applicant submits that the

prosecution has not laid on primary evidence of age of the victim. He

submits that the prosecution has heavily relied on the bonafde of the

victim issued by Head Master Mr. Ramrao Patil (PW-8). The result of

ossifcation test shows that the victim is above age of 18 year,

therefore, trial Court ought to have accepted the result of ossifcation

test, which determines age of the victim. The trial Court has

considered the evidence of the victim, her mother, Head Master Mr.

Ramrao Patil and the documents produced by him. On going through R. V. Patil 7 of 7 IA 1306.2021.doc

the evidence it appears that the prosecution has established the age

of the victim. No doubt that the said evidence is required to be re-

appreciated in the appeal, but it cannot be said that the fndings

recorded by the trial Court is not proper and correct.

11. The trial Court has applied the presumption under Section 29 of

the POCSO Act. The Applicant is married person having children. He

was a Manager of the factory, where victim was serving. In view of

the said facts, it would not be just and reasonable to enlarge the

Applicant on bail. At this stage, on going through the evidence on

record and perusal of the judgment of the trial Court, it appears that

the Applicant is not entitled for bail during pendency of the appeal.

Hence, we pass the following order:

ORDER

1) The present Interim Application is rejected.

2) The observations made hereinabove are prima facie in nature

and confned to the adjudication of the present application. Hearing of

the appeal stands expedited.

(SURENDRA P. TAVADE, J.)                                (S. S. SHINDE, J.)