Ashish S/O Ramnath Yadav vs State Of Mah.Thr. Pso Arvi ...
2022 Latest Caselaw 99 Bom

Judgment

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 NAGPUR BENCH, NAGPUR

               CRIMINAL APPEAL NO.434 OF 2021

Ashish s/o Ramnath Yadav,
Aged about 25 years, occupation -
Labour, r/o Bhogan, district
Nainpuri, Police Station Bebar (Uttar
Pradesh).                             ..... Appellant.

                         :: V E R S U S ::

1. State of Maharashtra,
Through PSO Arvi, tahsil Arvi,
District Wardha.

2. Savita w/o Rajpal Chahande, Aged
about 40 years, occupation labour,
R/o Janata Nagar, Arvi, tahsil Arvi,
District Wardha.                  ..... Respondents.
===================================
Shri M.V.Rai, Counsel for the Appellant.
Shri Bhushan Dafle, Counsel for Respondent No.2.
Shri M.K.Pathan, Additional Public Prosecutor for Respondent
No.1/State.
===================================

           CORAM      : V.M.DESHPANDE & G.A.SANAP, JJ.
           DATE       : JANUARY 04, 2022

ORAL JUDGMENT : (Per : V.M.Deshpande, J.)

1.          Heard learned counsel Shri M.V.Rai for the appellant,

learned    counsel   Shri    Bhushan     Dafle   for    respondent

No.2/complainant, the mother of victim, and learned Additional


                                                              .....2/-
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Public Prosecutor Shri M.K.Pathan for respondent No.1/State.

Admit. Heard finally by consent of learned counsel for parties.


2.          The appellant is accused No.1 in chargesheet filed by

Arvi Police Station, Wardha for offences punishable under Sections

363, 366(A), 370, 376(3), 376(2)(n), 354, and 354-B read with

Section 34 of the Indian Penal Code and under Sections 4, 5, and 6

of the Immoral Traffic (Prevention) Act, 1956 and under Sections

4, 6, and 8 of the Protection of Children from Sexual Offences Act,

2012 and under Sections 3(2)(v) and 3(2)(va) of the Scheduled

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

1989.    Entire copy of the chargesheet is placed on record

containing statements of the victim recorded by police officer

during course of investigation under Section 161 and also under

Section 164 of the Code of Criminal Procedure.            The said

statement under Section 164 was recorded only before learned

Judicial Magistrate First Class, Arvi (Court No.1).


3.          Though offence punishable under Section 370 of the

Indian Penal Code is very serious in nature, perusal of statements

made by the victim herself on two occasions, i.e. before

                                                              .....3/-
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Investigator and before learned Magistrate, shows that the

appellant has no role whatsoever in nature in alluring her on the

pretext of giving her job and taking her away from legal and lawful

guardianship and custody of the complainant from Arvi, district

Wardha to Surat in the State of Gujarat.        There is nothing on

record to show that the appellant has any role in pushing the

victim in the heinous trade of prostitution. In fact from statements

of the victim it is clear that when she came in an Icecream Parlour,

she came in contacted with the appellant and there she got his

phone number and when any how she ran away from clutches of

other      accused persons, she contacted the appellant and,

thereafter, the appellant rescued her and further took a step from

taking her away from the prostitution trade. Statements of the

victim show that the appellant, thereafter, treated her as his wife

and they resided jointly.


4.           At this stage, question of consent is not at all material

inasmuch as according to the prosecution the victim was aged 16

years.


5.           Be that as it may, burden will be on the prosecution to

                                                                .....4/-
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prove the age in accordance with law to show that the victim was

minor during the period when she stayed along with the present

appellant.


6.           It is reported to this Court by learned counsel for

respective parties that though charge is framed, from January 2021

there is no progress at all in Special Case No.179/2020 and the

said case is pending on the file of learned Additional Sessions

Judge, Wardha.


7.           Presently, the Court is not deciding merits or demerits

of the prosecution case qua the present appellant. Question is of

the liberty of the appellant who is languishing in jail from

6.9.2020. We give our thoughtful consideration to the entire

prosecution case in general and especially in respect of statements

of the victim recorded by police officer during course of

investigation under Section 161 and also recorded before learned

Magistrate under Section 164 of the Code of Criminal Procedure.

Perusal of statements of the victim shows that no role is attributed

against the appellant that he removed her from legal and lawful

guardianship and custody of her mother from Arvi, district Wardha

                                                              .....5/-
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to Surat in the State of Gujarat. Not only that, her statement is not

there that at any point of time the appellant gave her any promise

to provide her job. Her statements do not show that the appellant

was involved in pushing her in the heinous trade of prostitution.


8.          In view of the aforesaid, we are of view that the

appellant, who is in jail and there is no possibility that his case

pending before learned Judge below would come up in near future

for its disposal, needs to be released on bail. Resultantly, we pass

following order:


                              ORDER

(1) The criminal appeal is allowed.

(2) Order dated 1.10.2021 passed by learned Special Judge under

POCSO Act, Wardha in Criminal Bail Application No.389/2021 is

hereby quashed and set aside.

(3) The appellant be released on bail on his executing a P.R.Bond

in the sum of Rs.10,000/- with two solvent sureties of the like

amount out of which one should be of local in respect of Crime

.....6/-

Judgment

apeal434.21 16

No.257/2019 registered with Arvi Police Station, Wardha for

offences punishable under Sections 363, 366(A), 370, 376(3),

376(2)(n), 354, and 354-B read with Section 34 of the Indian

Penal Code and under Sections 4, 5, and 6 of the Immoral Traffic

(Prevention) Act, 1956 and under Sections 4, 6, and 8 of the

Protection of Children from Sexual Offences Act, 2012 and under

Sections 3(2)(v) and 3(2)(va) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989.

(4) The appellant is directed to remain present on each and every

date of Trial unless exemption is granted by learned Judge below.

With this, the criminal appeal is allowed and disposed

of accordingly.

              JUDGE                                JUDGE

!! BRW !!         Digitally
                  signed by
                  BHUSHAN
BHUSHAN           RANA
RANA              WANKHEDE
WANKHEDE          Date:
                  2022.01.05
                  17:07:06
                  +0530

                                                                 ...../-