Bombay High Court
Pradeep Dharma Deokule vs The State Of Maharashtra And Anr on 14 February, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 3559 OF 2022
IN
CRIMINAL APPEAL NO. 1096 OF 2022
Pradeep Dharma Deokule ..Applicant
Versus
The State of Maharashtra & Anr. ..Respondents
__________
Mr. Shailesh Kharat for Applicant.
Smt. M. R. Tidke, APP for State/Respondent No.1.
Mr. Nagesh S. Khedkar for Respondent No.2.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 14 FEBRUARY 2023
PC :
1. The applicant was convicted and sentenced by learned
Special Sessions Judge, Pune (under POCSO Act) vide his
Judgment and order dated 26/05/2022 passed in Sessions Case
No.381 of 2015. The Applicant was convicted for commission of
offences punishable under sections 376(f) and 376(j) of the I.P.C.
and under sections 4 and 6 of the Protection of Children from
Sexual Offences Act (hereinafter referred to as 'POCSO Act'). The
applicant was sentenced to suffer R.I. for 20 years and to pay a
Digitally
signed by
fine of Rs.20000/- and in default of payment of fine to suffer R.I.
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2023.02.16
10:31:10
Gokhale
+0530
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for one year.
2. Heard Shri. Shailesh Kharat, learned counsel for the
Applicant, Smt. Tidke, learned APP for the State/Respondent No.1
and Shri. Nagesh Khedkar, learned counsel for the Respondent
No.2.
3. The prosecution case is that the applicant was cousin of
the victim. He was victim's paternal aunt's son. According to the
prosecution case, about four months prior to August 2015 the
applicant took the victim to a secluded spot and committed rape
on her resulting in her pregnancy. When her pregnancy was
detected, the F.I.R. was lodged on 22/08/2015 at Loni Kalbhor
police station and it was transferred to Wanawadi police station.
The investigation was carried out. The applicant was arrested. The
pregnancy of the victim was terminated but the D.N.A. samples
were collected in respect of the fetus of the victim, the victim
herself and the applicant. The D.N.A. profile testing was carried
out. The report was that the victim and the applicant were the
biological parents of the fetus. On this basis the applicant faced the
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trial.
4. The prosecution examined seven witnesses including the
victim, the Medical Officers and the police officers.
5. Learned counsel for the applicant submitted that, it was
a clear case of consent. The victim has not supported the
prosecution case. She was declared hostile. The prosecution has
not proved the contradictory statement recorded by the Magistrate
under section 164 of the Cr.p.c. The victim never wanted to
prosecute the applicant. The applicant was on bail during trial. The
sentence awarded is unnecessarily harsh. Learned Trial Judge
overlooked that minimum sentence at that point of time was 10
years and not 20 years which is imposed on him.
6. Shri. Nagesh Khedkar, Learned counsel for the
Respondent No.2 specifically submitted that the Respondent No.2
has no objection for granting bail to the applicant pending his
appeal. Learned APP left the matter to be decided to the discretion
of this Court, in view of the fact that the victim has not supported
the prosecution case.
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7. I have considered these submissions and I have perused
the evidence which is annexed to the appeal memo. The victim
was examined as PW-1. She has denied the entire allegations
against the applicant. She has not supported her own F.I.R. and she
has not supported her statement recorded U/s.164 of the Cr.p.c.
Before the trial court she had not made any grievance against the
applicant.
8. PW-2 Dr. Dipali Jadhav was examined on the point of
victim's pregnancy. This fact is hardly in dispute.
9. PW-3 A.P.I. Rani Kale had produced the admission card
of 10th Standard of the victim on which her date of birth was
mentioned as 16/12/1997. However, the source of this
information and the basis of preparation of this card is not
produced on record. Therefore, this is an important lacuna in the
prosecution case. PW-3 has further deposed about the investigation
carried out by her.
10. PW-4 P. I. Suvarna Hulwar had registered the F.I.R. She
proved the contrary portions from the F.I.R. which are exhibited at
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Exhibit 76 and 77.
11. PW-5 Dr. Naresh Zanjad had conducted the radiological
examination. According to his report, on 26/08/2015 the victim's
age was between 17 years and 19 years.
12. PW-6 Police Naik Santosh Lawte had carried the D.N.A.
samples to the Forensic Science Laboratory.
13. PW-7 Rohan Shinde was working with the Forensic
Science Laboratory and he had produced the D.N.A. report.
14. Thus, from the evidence it is clear that there was
physical relation between the victim and the applicant resulting in
her pregnancy. At this stage, it cannot be denied that the applicant
had caused her pregnancy, however, the question would be
whether it was a consensual affair or not. The victim and the
applicant were knowing each other, therefore, she was also aware
of his marital status. The most significant factor for consideration
of this bail application is that the victim had not supported the
prosecution case at the time of trial. She had denied all the
allegations. There is clear effort on her part to help the applicant.
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Even learned counsel for the Respondent No.2 has given no
objection for grant of bail to the applicant.
15. Another important factor to be considered is about the
age of the victim. The documentary proof, as mentioned earlier, is
not satisfactory and it does not prove her age beyond reasonable
doubt. The radiological examination shows that her age at that
relevant time was between 17 years to 19 years. Therefore, there is
reasonable possibility that the victim could be above 18 years of
age at the time of incident. Therefore, at this stage, there is
reasonable material to show that, it was a consensual affair and
there is reasonable possibility that the victim was above 18 years
of age. Considering both these factors, the contention of learned
counsel for the applicant that, it may not amount to any offence as
defined U/s.375 of the I.P.C. or U/s.6 of the POCSO Act, will have
to be accepted at this stage. The applicant was on bail during trial
and there are no allegations of misusing that liberty. This is an
additional factor in his favour for consideration of bail pending his
appeal. Taking into account all these factors, the applicant can be
granted bail during pendency of his appeal.
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16. Hence, the following order:
ORDER
i) During pendency and final disposal of Criminal
Appeal No.1096 of 2022, the Applicant is directed
to be released on bail on his furnishing P. R. bond
in the sum of Rs.30000/- with one or two sureties
in the like amount.
ii) The Application is disposed of.
(SARANG V. KOTWAL, J.)
