Roshan S/O Hanif Sheikh vs State Of Mah. Thr. Pso Ps Karanja ...
2023 Latest Caselaw 496 Bom

                                   1                16-J-APPEAL-822-22.doc


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.

                    CRIMINAL APPEAL NO. 822 OF 2022

APPELLANT :                   Roshan s/o Hanif Sheikh,
                              Age : 20 years, Occ : Agriculture,
                              R/o Chandai, Tq. Karanja,
                              Washim.

                              VERSUS

RESPONDENTS :                 1.    State of Maharashtra
                                    Through Police Station Officer,
                                    Police Station, Karanja Rural,
                                    District Washim.

(Amended as per)              2.    X Y Z, (Complainant)
Court's order)                      Through Police Station,
dtd.16.11.22)                       Karanja (Gramin), Dist. Washim
                                    and Crime No.0255/2022.
-------------------------------------------------------------------------------------------
Ms. Payal S. Kaware, Advocate for appellant.
Shri S. S. Doifode, Additional Public Prosecutor for respondent No.1.
Ms. Neerja Chaubey, Advocate (Appointed) for respondent No.2.
-------------------------------------------------------------------------------------------
                              CORAM:- VINAY JOSHI AND
                                             VALMIKI SA MENEZES, JJ.

DATED : 13/01/2023.

ORAL JUDGMENT : (PER VINAY JOSHI, J.) :

1. Admit. Heard finally with the consent of learned

counsel appearing for the parties.

2. This is an appeal under Section 14-A the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Act,

1989 (for short, "SCST Act") raising a challenge to the rejection of 2 16-J-APPEAL-822-22.doc

regular bail in Crime No.255/2022 for the offence punishable

under Sections 376, 452, 323 & 506 of the Indian Penal Code and

Section 3(1)(w)(i)(ii) and 3(2)(va) of the SCST Act.

3. At the instance of report dated 08/06/2022 lodged by

the victim aged about 23 years, crime has been registered. The

victim girl was residing in small village of Washim District along

with her mother and brother. The accused is her brother's friend

and was on visiting terms at her house. She had acquaintance with

the accused for two years and was in talking terms with him. She

alleged that prior to one year from the lodgment of the FIR, in the

afternoon, accused entered into her house when she was alone at

home and had sexually assaulted her by use of force. The accused

also took her photographs in indecent manner and threatened to

expose the things. The victim stated that thereafter, temporarily,

she was shifted at Hyderabad at her relative's house and when she

came back again on 25/05/2022, accused similarly came in her

house and assaulted her by use of force, repeated the things. Then,

on 01/06/2022, the accused called her at Amravati to which she

was reluctant but went there. The accused was about to take her

somewhere, but she got escaped, returned and lodged the report.

3 16-J-APPEAL-822-22.doc

4. Learned counsel appearing for the appellant would

submit that it is a case of love affair between two adults. At the

most, it is a case of consensual relationship and nothing more than

that. In this regard, it is submitted that though the alleged forcible

intercourse was committed prior to one year from the date of FIR,

still no report was lodged nor the things were disclosed to

anybody. Likewise, second alleged incident dated 25/05/2022 was

not exposed. Moreover, it is submitted that though the victim

returned from Amravati on 01/06/2022, again there is delay of 8

days in lodging the report. Therefore, it is submitted that the story

as narrated by the informant about the aforesaid sexual relations,

is false and fabricated.

5. Learned APP as well as learned appointed counsel

resisted this appeal by contending that the victim girl has

specifically stated about the sexual assault. There was reason for

delay as the accused has threatened victim to kill and more

particularly to viral her photographs and therefore, there was

delay. It is submitted that if the accused is released on bail, either

he would repeat the things or pressurize the victim which would

put hindrance into fair trial.

4 16-J-APPEAL-822-22.doc

6. The accused was arrested in said crime on 16/06/2022

and since then, he is in jail. The police have completed

investigation and the report has been filed on 27/07/2022. The

investigation paper discloses that the police have seized mobile

handset from the accused. The related panchnama shows that no

obscene material was seized to be a part of WhatsApp chat, has

been made a portion of charge sheet.

7. We have gone through the relative exchange of

messages, which prima facie gives impression that it was chat

between young couple. For instance, when the accused asked

victim to come down probably from Amravati, she replied that

"fgEer ukgh ek>h" which conveys absence of compulsion.

Pertinent to note that alleged first instance happened prior to one

year by use of force, however, there is no disclosure at all. It

reveals that after said incident, the victim was sent to relative's

house at Hyderabad for which one can read between the lines. The

entire prosecution case, if perused, we find that after investigation,

further detention is not justifiable, particularly when the victim is

quite grown up major girl.

8. In view of that, we are inclined to grant bail by

imposing certain conditions to take care of anticipated fear.

5 16-J-APPEAL-822-22.doc

Accordingly, we pass the following order :-

             i]          The appeal is allowed.
             ii]         The impugned order dated 12/10/2022 passed by

the Additional Sessions Judge, Link Court, Mangrulpir, Camp at Washim, Dist. Washim in Special Atrocity Case No.55/2022 is hereby quashed and set aside. iii] The appellant / accused - Roshan s/o Hanif Sheikh is released on bail on furnishing P. R. Bond of Rs.25,000/- with one or two sureties in the like amount.

iv] The appellant / accused - Roshan s/o Hanif Sheikh shall not enter into village Chandai, Tq. Karanja, Dist. Washim, till the Trial Court records the evidence of victim.

v] The appellant / accused - Roshan s/o Hanif Sheikh shall not tamper the prosecution evidence, nor try to contact the victim, in any manner.

vi] The breach of either of the conditions would give rise to the prosecution to move this Court for cancellation of bail.

vi] The appeal is disposed of in the above terms. vii] The fees of appointed counsel be quantified, as per the Rules.

             [VALMIKI SA MENEZES, J.]                       [VINAY JOSHI, J.]

  Choulwar




                  Digitally signed by
VITHAL            VITHAL MAROTRAO
MAROTRAO          CHOULWAR
                  Date: 2023.01.17 14:40:42
CHOULWAR          +0530