Bombay High Court
Jaydeep Dipak Walvi vs State Of Maharashtra And Anr on 22 February, 2023
Bench: S. V. Kotwal
:1: 20-ia-2700-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2700 OF 2022
IN
CRIMINAL APPEAL NO.656 OF 2022
Jaydeep Dipak Walvi ..... Applicant
Versus
The State of Maharashtra & Anr. .... Respondents
-----
Mr. Satyavrat Joshi, Advocate for the Applicant.
Mr. S.R. Agarkar, APP for the Respondent No.1-State.
Mr. Abhishek H. Khare, Advocate (appointed) a/w. Anusya
Raghavan, for the Respondent No.2.
-----
CORAM : SARANG V. KOTWAL, J.
DATE : 22nd FEBRUARY, 2023
P.C. :
1. This is an application for bail pending the
applicant's Criminal Appeal No.656/2022.
2. The applicant has challenged the judgment and
order dated 24.5.2022 whereby the Special Judge (POCSO)
and Additional Sessions Judge, Islampur convicted and
sentenced the applicant in Special POCSO Case No.24/2019.
1 of 7
Deshmane(PS)
:2: 20-ia-2700-22.odt
The applicant was convicted for commission of offences
punishable under Section 376(2)(n) of IPC and under
Section 6 of the Protection of Children from Sexual Offences
Act, 2012 (for short, 'POCSO Act') and was sentenced to
suffer RI for ten years and to pay fine of Rs.1,000/- and in
default of payment of fine to suffer SI for one month. The
applicant was granted set-off for the period which he had
undergone as under-trial prisoner.
3. Heard Shri Satyavrat Joshi, learned counsel for
the applicant, Shri S.R. Agarkar, learned APP for the
respondent No.1-State and Shri Abhishek Khare, learned
appointed advocate for the respondent No.2.
4. The prosecution story is that the victim's date of
birth was 17.1.2002. On 4.6.2019, she had left her house to
attend the class at 8.00 a.m.. She did not return home.
Therefore, her mother lodged an FIR at Islampur police
station. On 9.6.2019, the victim and the applicant were
brought to the police station and the investigation was
carried out. According to the prosecution case, the applicant
2 of 7
:3: 20-ia-2700-22.odt
took the victim to various places and established physical
relations on some occasions.
5. Learned counsel for the applicant submitted that
the victim's date of birth is not proved by the prosecution
through admissible evidence. The birth certificate produced
on record at Exhibit-40 mentions a different name than the
victim's name. The father of the victim has produced an
affidavit showing that he had applied for correction of the
name in the records. Shri Joshi submitted that the said
affidavit is not properly proved and it does not indicate that
the birth certificate produced on record was that of the
victim.
6. He submitted that the victim's evidence itself
shows that it was a clear case of consent and that it is not
established that she was below 18 years of age. Therefore,
no offence is committed by the applicant. He submitted
that the applicant was 19 years of age at the time of incident
and, therefore, in any case some leniency can be shown to
him for consideration of bail pending appeal.
3 of 7
:4: 20-ia-2700-22.odt
7. Learned counsel for the respondent No.2 as well
as learned APP submitted that there is no reason to
disbelieve the birth certificate which is produced on record.
Though the name of the victim is different, the parents'
names and the address is the same. They submitted that the
victim's father had taken steps to correct the name in the
birth certificate. They further submitted that in any case the
victim had deposed that the applicant has established
physical relations against her wish, therefore, the offence
was complete and, therefore, bail should not be granted to
him.
8. I have considered these submissions. At the
outset, it must be noted that both the victim and the
applicant himself were quite young. The applicant was 19
years of age at the time of incident. The victim's evidence
mentions that they had developed close friendship. In
February, 2019 they had their physical relations on the first
occasion in the applicant's house. At that time the victim had
gone to his house. Though she has stated that the physical
4 of 7
:5: 20-ia-2700-22.odt
relations on the first occasion was against her wish, she has
further mentioned that they had physical relations on other
occasions as well. On 20.5.2019, the victim went to reside
at Islampur. On 4.6.2019, the applicant met her at Islampur.
Then they went to Kolhapur, Mumbai, Vapi and Meghwad.
During that time they had physical relations. On 8.6.2019,
the victim's father and the police officers came there and
took them back to Islampur police station. Thus, from her
evidence there are sufficiently strong indications that there
was consensual relationship between the applicant and the
victim. Therefore, her age is a crucial factor in this appeal.
9. The prosecution has produced the birth
certificate issued by the Grampanchayat on record at Exhibit-
40. But as pointed out by Shri Joshi, the name appearing in
that certificate is different. The victim's father was examined
as PW-3 and he has produced a copy of the affidavit at
Exhibit-39. The said affidavit mentions that the victim's
name was wrongly mentioned in the register and a prayer
was made for correction. The admissibility of this document
5 of 7
:6: 20-ia-2700-22.odt
and the effect of the wrong name in the birth certificate will
have to be taken into consideration at the final hearing
stage. These issues are important.
10. The victim's mother in answer to the Court
question had mentioned that the victim's date of birth was
17.1.2001. If that is so, the victim was above 18 years of age
at the time of the first physical relationship in February,
2019. Thus, some serious doubt is created about the victim's
age and there is substance in the argument that the victim
could be more than 18 years at the time of incident.
11. Considering all these aspects, the applicant has
made out a case for his release on bail during pendency of
his appeal. All these aspects will have to be decided at the
final hearing stage. The applicant is quite young and he was
on bail during trial. Though, there are indications that he
was again arrested after being released on bail, the fact
remains that this appeal is not likely to be decided in a
reasonable short period and that he is still young.
6 of 7
:7: 20-ia-2700-22.odt
12. Hence, the following order :
:: O R D E R ::
i. During pendency and final disposal of Criminal
Appeal No.656/2022, the applicant is directed to
be released on bail on his furnishing P.R. bond in
the sum of Rs.30,000/- (Rupees Thirty Thousand
Only) with one or two sureties in the like amount.
ii. The applicant shall not harass the victim or her
family in any manner.
iii. Interim Application is disposed of accordingly.
Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
(SARANG V. KOTWAL, J.)
PRAKASHRAO DESHMANE
DESHMANE Date:
2023.02.24
16:25:22
+0530
Deshmane (PS)
7 of 7
