Akshay S/O Vinod Kharate vs State Of Mah. Htr. Pso Ps Darwha ...
2023 Latest Caselaw 2145 Bom

                                                                                    13 APEAL-32-2023.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          NAGPUR BENCH, NAGPUR.
              CRIMINAL APPEAL NO.32 OF 2023

APPELLANT                          :        Akshay S/o Vinod Kharate
(IN JAIL)                                   Aged about 24 years, Occ. Student,
                                            R/o. Lohi, Tq. Darwha, District
                                            Yavatmal.

                                            ..VERSUS..

RESPONDENTS                        : 1      State of Maharashtra, through Police
                                            Station Officer, Police Station,
                                            Darwha, Tq. Darwha, District
                                            Yavatmal

                                       2 XYZ
                                         In Crime No.864/2022 dated
                                         04.10.2022 registered by P.S.O. P.S.
                                         Darwha, Tah. Darwha, District
                                         Yavatmal.
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        Mr R. J. Shinde, Advocate for Appellant.
        Mr M. J. Khan, Addl. P. P. for Respondent No.1/State.
        Mrs S. W. Gadhawe, Advocate (Appointed) for Respondent No.2.
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       CORAM : VINAY JOSHI AND VALMIKI SA MENEZES, JJ.
       DATE           : 3rd MARCH, 2023.

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


   .               Heard finally by consent of the learned Counsel

   appearing for the parties.


                   Admit.
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2.        This is an appeal in terms of Section 14A of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 ("SC and ST Act" for short), challenging

the order of rejection of bail passed by the Trial Court in S.T.

No.64 of 2022 dated 12.12.2022.


3.        The appellant is arrested in Crime No.864 of 2022,

registered with Darwha Police Station, District Yavatmal, for

the offences punishable under Sections 376(3), 452 and 506 of

the Indian Penal Code, 1860, Sections 3 and 4 of the

Protection of Children from Sexual Offences Act, 2012 and

under Sections 3(1)(w)(ii) and 3 (2)(va) of the SC and ST Act.


4.        The bail is claimed on the ground of innocence, false

implication and inadequacy of evidence. Moreover, it has been

argued that the medical report does not corroborate the

prosecution case about forcible sexual intercourse. Moreover, it

is submitted that the prosecution has not adduced convincing

evidence to establish that the victim was minor at the time of

occurrence.


5.        The State as well as Mrs Gadhawe, learned Counsel

(Appointed) for informant vehemently resisted the appeal
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stating that since the victim was minor, the offence is complete.

Moreover, it has been submitted that the victim has specifically

stated the act of appellant (accused), and therefore, he is not

entitled for bail.


6.         Crime has been registered at the instance of victim

girl aged 15 years. It is her case that appellant (accused) is

resident of same village and they had love relationship. On

03.10.2022 around 10:30 a.m. when the victim was alone at

her house, the accused came and under threats had sexually

assaulted her. At relevant time, her aunt knocked the door that

is why the accused ran away, and therefore, the report.


7.         The FIR itself discloses that there was love

relationship in between both of them. True if age of victim is

proved, then her consent assumes no significance. However,

besides of Gram Panchayat Certificate, there is nothing to

establish the age of victim girl. Reading of FIR itself discloses

that both were in love relationship. The medical paper discloses

that there are no injuries on the person of victim which

contradicts her case about forcible sexual assault. It is a matter

of consideration that as per prosecution case, victim is merely
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15 years of age and she has been forcibly raped and in that

context medical report absolutely does not disclose any injury.

Now, the investigation is complete and charge-sheet has been

filed.


8.              Having regard to above facts, we deem it appropriate

to release Applicant Akshay Vinod Kharate on bail as trial will

take its own time for disposal. We hereby allow the appeal and

pass the following order :


                               ORDER

i) Impugned order dated 12.12.2022 passed

by the Trial Court in S.T. No.64 of 2022 is hereby

quashed and set aside.

ii) The Appellant Akshay Vinod Kharate is

released on bail on his furnishing P.R. Bond in the

sum of Rs.25,000/- (Rupees Twenty Five Thousand

Only) with one or two sureties of like amount.

iii) The Appellant shall attend concerned

Police Station on first Monday of each month in

between 10:00 a.m. to 12:00 noon, till conclusion of 13 APEAL-32-2023.odt

trial.

iv) The Appellant shall not tamper the

prosecution evidence in any manner.

v) The criminal appeal is disposed in above

terms.

vi) Fees of appointed counsel be given as per

rules.

9. The above observations are made only to the extent of

deciding this appeal, which has no impact on the merits of the

case.

(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)

TAMBE

Digitally Signed By:ASHISH ASHOKRAO TAMBE Personal Assistant to Hon'ble JUDGE Signing Date:04.03.2023 13:40