Shashikant Bhagwat Kamble vs The State Of Maharashtra
2022 Latest Caselaw 12137 Bom

                                                  Cri. Appln. No.251 of 2021.odt


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                   CRIMINAL APPLICATION NO.251 OF 2021
                                   IN
                      CRIMINAL APPEAL NO.40 OF 2021

Shashikant s/o. Bhagwat Kamble                          ..Applicant
     Vs.
The State of Maharashtra                                ..Respondent

                                 ----
Mr.B.M.Dhanure, Advocate for applicant
Mr.R.B.Bagul, APP for respondent no.1
Mr.S.P.Brahme, Advocate for respondent no.2
                                 ----

                          CORAM : R.G.AVACHAT AND
                                   R.M.JOSHI, JJ.

RESERVED ON : NOVEMBER 24, 2022 PRONOUNCED ON : NOVEMBER 25, 2022

ORDER :-

This is an application under Section 389 of the Code of

Criminal Procedure. The applicant has been convicted for the offences

punishable under Sections 363 and 366-A of Indian Penal Code and

Section 4 of the Protection of Children from Sexual Offences Act, 2012

("POCSO" for short) vide judgment and order dated 18.02.2020

passed by learned Special Judge, Latur, in Special (POCSO) Case No.2

of 2015 and therefore, sentenced to suffer various imprisonments

including the imprisonment for life.

2. Learned counsel for the applicant would submit that the

victim was little over 15 years of age. The applicant was 21 years of

age at the material time. The victim's evidence indicates that she

had left her house on her own for no return. Even there is no

evidence to indicate prior acquaintance between the applicant and

the victim. The inference could be drawn that she, on her own,

stayed with the applicant for not less than fourteen days. Even she

sported Mangalsutra. A friend of the victim, who was in her

company, was allowed to go back home. The same indicates the

applicant did not have any intention to detain the victim. The

evidence of the Medical Officer, who examined the victim, has been

adverted to, to suggest that it was doubtful, as to whether

penetrative intercourse did take place. According to learned counsel,

the applicant was on bail, pending trial. With the passage of time,

both applicant and victim have got married. The applicant is blessed

with three children. One of them is just one year's old. The victim

too has been blessed with a daughter. It may take time of not less

than 6-7 years to have the present appeal its turn for hearing on

merit. He, therefore, urged for allowing the application.

3. Learned APP and learned counsel representing

respondent no.2 would, on the other hand, submit that admittedly,

the victim was below 18 years of age at the material time.

Penetration, howsoever slight, is sufficient to constitute an offence

of rape. The medical evidence supports the prosecution.

According to learned counsel for respondent no.2, it is a

heinous offence. The applicant did not have acquaintance with the

victim before she met him. Under the pretext of providing her

shelter, he exploited her.

Both learned APP and learned counsel for respondent

no.2, ultimately, urged for rejection of the application.

4. Considered the submissions advanced. Perused the

evidence relied on.

5. True, the victim was below 18 years of age at the

material time. Her consent was, therefore, immaterial. It also

appears that the applicant was not known to the victim before they

met at the relevant time. He would ply auto-rickshaw to earn his

living. The victim has step-mother. The evidence indicates that the

victim had left her house under some pretext, but with intention not

to return. She was in the company of her friends. They went to PVR

for watching a movie and then went to a garden. When the victim

saw her father, she hid herself in one footwear shop. Then she and

her friend met the applicant. The victim requested him to provide

her shelter for overnight. The applicant took her to his room. The

victim, her friend and the applicant stayed overnight in the said

room. It is the victim's case that during said night, the applicant

had sexual intercourse with her. On the following day, the applicant

allowed the victim's friend to go her house. There are very many

omissions amounting to contradictions in the evidence of the victim.

Admittedly, the victim was away from her house for fourteen days.

She stayed with the applicant during those days. The places,

whereat she stayed, were situated in thickly populated area. During

some of these days, the applicant is alleged to have had sexual

intercourse with her many a time.

6. The medical examination report of the victim reads

- there were no signs of assault on her thighs and around the

private parts but tears were at the vaginal part. Hymen was intact.

There was one mark on buttock but it was old. The small tear at the

posterior of vagina was fresh. Vaginal swab was collected. The

Medical Officer opined that there is possibility of sexual assault. He

admitted in his cross-examination that after examining the patient,

he did not come to the conclusion about the sexual assault and

therefore, had not mentioned it in his report. He went on to admit

that if hymen is intact, it is the sign of virginity. The C.A. report

does not support the prosecution's case, although the victim was

examined within 24 hours of she left the company of the applicant.

In our view, the medical evidence, prima facie, runs counter to the

case of the victim that for four days, the applicant had forcible

sexual intercourse with her. The offence punishable under Section 4

of the POCSO Act, at the relevant time, was punishable with

imprisonment which shall not be less than for a period of seven

years but which may extend to imprisonment for life.

7. At the material time, the applicant was 21 years of age.

Although the victim was below 18 years of age, it appears that she

stayed with the applicant on her own volition. In the given

circumstances, there is scope for exercising the discretion in

imposing the sentence, more so, scaling the life imprisonment to a

term of imprisonment. Even, it may be argued that the offence may

be in the nature of attempt to commit penetrative sexual assault, in

view of the medical examination report of the victim. The applicant

has been in jail for about 2 years and 8 months. The appeal is not

likely to be heard on its own merits in the immediate future.

8. For all the aforesaid reasons, we are inclined to allow the

application. Hence, the following order:-

(i)                The application is allowed;


(ii)               During pendency of the appeal, the substantive sentence

of      imprisonment            imposed   vide       judgment     and      order        dated

18.02.2020 passed by learned Special Judge, Latur, in Special

(POCSO) Case No.2 of 2015, to stand suspended. The applicant be

released on bail on executing P.R. Bond in the sum of Rs.15,000/-

(Rupees Fifteen Thousand) with one surety in the like amount.

          [R. M. JOSHI, J.]                            [R.G. AVACHAT, J.]




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