Navnath Ramaji Chandikar vs The State Of Mha. Thr. Pso Ps ...
2022 Latest Caselaw 11137 Bom

                                                                  14.appeal.549.2022.odt
                                           1

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

                     CRIMINAL APPEAL NO.549 OF 2022



Navnath Ramaji Chandikar
Aged 22 yrs. Occu.:- Agriculturist,
R/o Kolari, Tah. Bramhapuri,
Dist. Chandrapur
(In jail at Chandrapur)                                       ..... APPELLANT
                                                                    (Accused)

                                   // VERSUS //

1.    The State of Maharashtra
      through Police Station Officer
      Police Station Brahmanpuri
      Dist.- Chandrapur.

2.    XYZ                                                          (Informant)
      Crime No.0771/2021
      Police Station Bramhapuri
      Distt - Chandrapur                                    .... RESPONDENTS


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       Shri. A. A. Dhawas, Advocate for appellant.
       Shri. A. R. Chutke, APP for the respondent No.1/State.
       Ms. Deepali V. Sapkal, (Appointed) Advocate for respondent No.2.
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                              CORAM : VINAY JOSHI AND
                                       MRS. VRUSHALI V. JOSHI, JJ.

DATED : 20/10/2022

ORAL JUDGMENT : [ PER: VINAY JOSHI, J.]

1. Heard.

14.appeal.549.2022.odt

2. ADMIT. Heard finally by consent of the learned counsel

appearing for the parties.

3. This is an appeal challenging the order dated 12.07.2022

passed on Exh.8 in Special POCSO Case No.26 of 2022 by which regular

bail has been rejected. The appellant (accused) has challenged the

impugned order on the ground that the trial Court has not considered

the vital aspects of the case. It is argued that the story as narrated by

victim is false and at the most it can be gathered that she ran away with

the accused. However, there was no sexual contact in between them.

4. The State as well as the learned counsel appearing for

respondent No.2 - victim resisted the bail. It is submitted that the victim

was minor girl aged 13 years 11 months and therefore, even if it is

assumes that she was consenting party, her consent assumes no

significance. It is submitted that the victim girl has specifically stated

that on the point of knife she has been forcibly taken in the field where

accused has committed penetrative sexual assault. It is also stated that

the parents of victim as well as school teacher has corroborated her

testimony.

5. At the instance report lodged by victim dated 24.12.2021,

the crime was registered. The victim girl aged 13 years and 11 months

was studying in 8th Std. at the relevant time. The appellant/accused is

14.appeal.549.2022.odt

resident of the same village with whom victim had acquaintance. It is

victim's case that on 22.12.2021 in the morning hours, the victim

threatened her by showing knife and asked her to accompany, but she

refused and went to the school. Thereafter, in the school she was seated

alone in the ground where accused again arrived and by force dragged

her to near by field and committed sexual assault. The victim stated that

in the afternoon, she directly returned to her house without collecting

her school bag. After two days, she disclosed the things to her parents

on which report has been lodged.

6. There can be no dispute that minor's consent carries no

meaning in the eyes of law. However, the learned counsel for the

appellant would submit that genesis of the case is very much doubtful

since though the victim was of tender age and alleged incident took

place in the field, there are no marks of force or violence in that context.

We have gone through the medical examination report, which indicates

that there are no signs of injury on the person or genitals of the victim.

It only says that hymen was completely raptured. It is evident that no

fresh injury or signs have been found in the medical examination which

prima facie run contrary to the case of informant.

7. The learned counsel for the appellant has pointed out that

as per the prosecution case, the victim was dragged to longer distance

and was forcibly caused to lay on rough surface which is quite

14.appeal.549.2022.odt

improbable on the canvass of absence of any marks. Besides that he

would submit that the victim was at her school and therefore, it is

difficult to accept that from school she was forcibly taken by use of force.

Prima facie the submission carries substance since there are no

statements to indicate that the accused forcibly took victim from her

school.

8. It emerges that for two days the victim had not disclosed the

incident to her parents. In this regard, the learned counsel has

submitted that when the parents of victim came to know that she was

absent in the school, on deeper inquiry victim disclosed the things. The

said submission carries substance and appears to be inconsistent with

the story of the prosecution.

9. Though, medical evidence is not must to prove the offence

of rape, however, having regard to the very tender age of victim total

absence of medical evidence that too in case of forcible intercourse

assumes significance. It is a matter of trial to establish that the accused

had sexual intercourse with a victim. The investigation is complete and

charge-sheet has been filed. The accused is in jail from 24.12.2021 that

is for near about last 10 months. By imposing stringent conditions

chances of pressurizing the victim can be eliminated. Having regard to

all above facts, we are inclined to grant bail and therefore the appeal is

allowed.

14.appeal.549.2022.odt

10. The impugned order dated 12.07.2022 passed in Special

POCSO Case No.26 of 2022 is hereby quashed and set aside.

11. The appellant (accused), namely, Navnath Ramaji

Chandikar be released on bail in Crime No.0771 of 2021 registered with

Police Station Bramhapuri, District Chandrapur for the offence

punishable under Sections 376(1), 376(3) and 506 of the Indian Penal

Code and Section 4 of the Protection of Children from Sexual Offences

Act, 2012 and Sections 3(2)(v) and 3(2)(va) of the Scheduled Caste and

Scheduled Tribes (Prevention of Atrocities) Act on furnishing P.R. bond

in the sum of Rs.25,000/- (Rs. Twenty Five Thousand only) with one or

two sureties in the like amount.

12. The appellant shall not enter within the territorial

jurisdiction out of the entire Bramhapuri Taluka till conclusion of trial.

13. The appellant shall not tamper the prosecution evidence in

any manner.

14. The appeal stands disposed of in above terms.

15. Fees of appointed counsel be paid as per rules.

Digitally signed byANANT R SARKATE (MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.) Signing Date:21.10.2022 16:31 Sarkate.