Abhay Shivaji Bansode vs The State Of Maharashtra And Anr
2022 Latest Caselaw 6143 Bom

                                                                                   910-ba-3393-2021.doc




                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                       BAIL APPLICATION NO.3393 OF 2021

                      Abhay Shivaji Bansode                                 ...Applicant
                                 vs.
VISHAL                The State of Maharashtra and Anr.                     ...Respondents
SUBHASH
VISHAL
PAREKAR
SUBHASH               Mr. Bharat Gadhavi a/w. Mr. Tejesh Dande, Mr. Aniket Aghade i/b.
PAREKAR
Digitally signed by
VISHAL SUBHASH        Mr. Tejash Dande and Associates, for the Applicant.
PAREKAR
Date: 2022.07.02
Digitally
VISHAL
          signed by
14:36:05SUBHASH
           +0530
                      Mrs. M.R. Tidke, APP, for the State.
PAREKAR               Mr. Nikhil Maneshinde i/b. Mr. Shanice Mansukhani, for
Date: 2022.07.02
13:53:47 +0530        Respondent No. 2.

                                               CORAM :     N. J. JAMADAR, J.
                                               DATE :      JULY 01, 2022

                      P.C.:

                      1.      The applicant who is arraigned in C.R. No. 1610 of 2020

                      registered with Hadapsar police station, Pune for the offences

                      punishable under section 376 of Indian Penal Code, 1860 and

                      section 4 of the Protection of Children from Sexual Offences Act,

                      2012 has preferred this application to enlarge him on bail.



                      2.      The gravamen of indictment against the applicant runs as

                      under:-

                              Ms. P (hereinafter referred as 'the victim') was fond of acting.

                      The victim got an opportunity to work with the Director of a movie

                      "Karmyodhha'. Shootings were held at Katraj. The applicant was

                      also involved in the said project. The applicant forged friendship


                      Vishal Parekar                                                               ...1
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with the victim.

        On 13th November, 2020 the applicant made a call to the

victim and expressed desire to meet her. Upon being informed that

the victim was at Hadapsar, the applicant came thereat along with

his friend. They had coffee at a Caffe at Mudhva. Thereafter, the

applicant forcibly took the victim to a lodge near Manohar Cloth

Center, Hadapsar. The applicant's friend stayed back. The applicant

forcibly took the victim to one of the rooms in the said lodge at

about 3.00 pm. The applicant had forcible physical relations with

the victim, without her consent and despite her resistance. The

victim started bleeding. The applicant went away and brought a

sanitary pad. However, since there was heavy bleeding and the

victim felt that her energy was being sapped, the victim approached

Hadapsar police station. She was immediately forwarded for

medical examination and treatment. Thereafter, the victim lodged

report. The applicant came to be apprehended.



3.      I have heard Mr. Gadhavi, learned counsel for the applicant,

Mrs. Tidke, learned APP for the State and Mr. Maneshinde, learned

counsel, for respondent No. 2/victim.



4.      The learned counsel for the applicant strenuously submitted


Vishal Parekar                                                           ...2
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that in the backdrop of the fact that the victim was more than 17

years of age and the victim and the applicant were in a relationship,

the offence punishable under section 376 of the Penal Code cannot

be said to have been made out. It was a consensual act on the part of

the victim who fully understood the nature and consequences of the

act and voluntarily gave consent to physical relations, urged the

learned counsel for the applicant.



5.      The learned APP and learned counsel for respondent No. 2

countered the submissions on behalf of the applicant.



6.      I have carefully perused the report under section 173 of the

Code of Criminal Procedure, 1973 and the documents annexed with

it. Apparently, the victim was below 18 years of age at the time she

was allegedly ravished. In the first information report, the victim

had given vivid account of circumstances in which the applicant

allegedly forced himself upon her. The violent nature of the act and

the consequent bleeding made the victim to immediately approach

the police station. Almost instantaneous reporting of the matter to

police with complete prosecution version, rules out scope for any

improvement and embellishment. The medical examination of the

victim, within few hours of the occurrence, lends further support to


Vishal Parekar                                                            ...3
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the version of the victim. It would be suffice to note that the injury

the victim claimed to have suffered, in the alleged act, finds mention

in the medico legal report.



7.      The learned counsel for the applicant attempted to salvage the

position by inviting attention of the Court to the statement of the

friend of the applicant, who had accompanied the applicant and the

victim to the lodge. Emphasis was laid on the fact that the applicant

and the victim had gone to the room in the lodge, and he was asked

to wait. This fact, according to the learned counsel, implied that the

victim voluntarily accompanied the applicant. I find it difficult to

draw such an inference, at this stage. On the contrary, a careful

perusal of the statement of the friend of the applicant would show

that the version narrated by the victim is substantially echoed by

the said friend.



8.      In order to bolster up the submission that the applicant and

the victim were in a relationship, the learned counsel for the

applicant banked upon the alleged transcript of the Whatsapp Chat

between the applicant and the victim. I have perused the said

conversation. It does not advance the cause of the applicant to the

extent desired by the applicant.


Vishal Parekar                                                             ...4
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9.       Reliance placed by Mr. Gadhavi, learned counsel for the

applicant, on a judgment of this Court in the case of Anirudha

Yadav vs. State of Maharashtra1 wherein this Court had exercised

the discretion in favour of the applicant therein, despite charge

under section 4, 6 and 8 of POCSO Act, does not assist the applicant.

In the said case, this Court prima facie found that the victim,

though a minor, had surrendered to the physical desire of the

applicant therein out of love and affection for him. In contrast, in

the case at hand, the victim has categorically asserted that the

applicant forced himself upon her and ravished her despite

resistance. The fact that the victim straightaway approached the

police station from the lodge, where the applicant allegedly

exploited her, prima facie militates against the applicant's version

of consensual act.



10.      For the foregoing reasons, the application deserves to be

rejected. Hence, the following order.



                                        ORDER

1] The application stands rejected.

2] By way of abundant caution, it is clarified that the

observations made hereinabove are confined to the consideration of 1 2020 CLU 500 (Bombay High Court)

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the entitlement for bail and they may not be construed as an

expression of opinion on the guilt or otherwise of the applicant.

                                           (N. J. JAMADAR, J.)




Vishal Parekar                                                             ...6