Bombay High Court
Pawan S/O. Pramod Kulkarni vs The State Of Maharashtra And ... on 18 January, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
CriAppln.2700.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2700 OF 2022
IN
CRIMINAL APPEAL NO. 397 OF 2020
Pawan S/o Pramod Kulkarni
Age : 29 Years, Occu. : Nil
R/o. N-11, B Sector, 5/4,
Subhash Chandra Bose Nagar
Hudco, Aurangabad ... Applicant/Appellant.
Versus
1. The State of Maharashtra
2. XYZ ... Respondents.
...
Mr. Abhishek Kulkarni, Advocate for Applicant/Appellant.
Mrs. P. V. Diggikar, APP for Respondent No.1 - State.
Ms. Sharda Chate, Advocate for Respondent No.2 (Appointed)
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 06th JANUARY 2023.
PRONOUNCED ON : 18th JANUARY 2023.
ORDER (PER ABHAY S. WAGHWASE, J.) :
1. Applicant who is convicted by learned Special Judge, Aurangabad
in Special Case (POCSO) No.164 of 2017, for commission of offences under
sections 376(2)(n), 363 and 506 of Indian Penal Code (IPC) and under section
5(l) punishable under section 6 of the Protection of Children from Sexual
CriAppln.2700.2022.odt
Offences Act, 2012 (POCSO Act) registered with Cidco Police Station,
Aurangabad City, is seeking suspension of sentence as well as grant of bail.
2. Taking us through the charge-sheet, learned counsel for applicant
would submit that complaint came to be lodged by informant alleging that,
she is studying in 7th Standard. It is narrated that the applicant was her
neighbour. That, on 12.08.2017, it is alleged that while she was alone as her
parents were out of station, applicant called her on the pretext of some work
and took her on the terrace of his house and had sexually ravished her. She
was threatened to be killed if at all she discloses it to anyone and therefore,
when she returned, she did not inform her uncle. However, when parents
returned, she narrated the incident to them and therefore they took her to the
police station where she lodged complaint, on the strength of which police
registered crime bearing No.0522 of 2017 for commission of above offence.
3. It is submitted that applicant is falsely involved. Complaint is
belated. That, it is doubtful whether informant is minor as manufactured and
fabricated birth certificates are subsequently tendered. That, apparently FIR is
registered after two days of alleged offence and as such there is delay, but the
same is not explained.
4. It is pointed out that learned trial Judge has appreciated only the
case of prosecution and has not considered grounds raised by the accused in
CriAppln.2700.2022.odt
trial and therefore, appeal has been preferred against the said judgment and
order of conviction. According to learned counsel, the appeal will take its own
time and turn and as such applicant would be languished in jail till then. In
above backdrop, it is prayed that the sentence awarded be suspended and the
applicant be set at liberty by imposing suitable conditions.
5. While opposing the bail application, learned APP point out that
serious offence under the provisions of POCSO Act has been committed. That,
the girl was merely completed 13 years of age. Accused had taken
disadvantage of acquaintance, initially as a neighbour and subsequently
disadvantage of her loneliness while her parents were out of the house.
Therefore, by threatening her she was sexually exploited on various occasions.
Therefore, learned trial Judge, after appreciating the entire oral and
documentary evidence and finding it supporting the case of prosecution, has
recorded guilt. Therefore, if instant prayers are granted, wrong message will
go to the society and as applicant does not deserve relief as prayed, it is
prayed that the application be rejected.
6. We have heard both sides to their satisfaction.
7. We have perused the record and papers and evidence adduced by
both the sides during trial. From the FIR, it is emerging that at the time of the
incident victim was studying in 7th standard, whereas, accused was over 30
CriAppln.2700.2022.odt
years of age. It seems that victim and accused were initially the neighbourers
and as such well acquainted. According to informant, a week prior to the
incident, accused had come to her house requesting her to tie 'rakhi' and
thereafter also he used to call her on some or the other pretext. It seems that
accused changed his residence and shifted to another place, but still he used to
go to visit her. As regards sexual exploitation is concerned, it seems that it is
stated in the FIR that on 12.08.2017, her parents had gone to their native
place at Buldhana and she was alone in the house, i.e. on the first floor,
whereas, her paternal uncle and aunt resided on the ground floor. It is her
case that, around 10.30 p.m. while she was sitting on platform( ओटा) outside
the house, at that time accused came and called her. She claims to have
questioned him as to why he is calling her and she allegedly said that his
mother has called her. Therefore she accompanied him. She further states that,
she was taken to the terrace, forcible striped by issuing threats and forcibly
raped. It is alleged that he threatened her not to disclose it to anyone and
thereafter, she came home. It is emerging from the statement of mother that
finding her crying and disorganized, her uncle contacted her parents and as
such, they immediately reached in the night. Thereafter, the girl narrated as to
what happened with her. She also disclosed that previously also she was
ravished by accused. It seems that, thereafter finally parents mustered up the
courage and approached the police and set law into motion.
CriAppln.2700.2022.odt
8. As regards to age of the girl is concerned, birth certificate is
placed on record. It is revealed that date of birth of girl is 31.07.2004.
Therefore, apparently on the date of occurrence which took place on
12.08.2017, her age was 13 years. She is reported to be student of 7 th
standard. This is not refuted by applicant. In the statement under section 313
of Cr.P.C., there is outright denial or answer as "not known".
9. After hearing both sides and on appreciating the oral and
documentary evidence, more particularly that of the victim girl, learned trial
Judge has found it credible and accepted the same and has thereby recorded
the guilt of accused. Accused was not on bail during trial. Taking into account
the gravity of offence, we do not considered it to be a fit case to grant relief as
prayed and hence the application is rejected.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale/-
