Sheikh Adil Sheikh Harun vs State Of Mah. Thr. Pso Arni ...
2023 Latest Caselaw 2486 Bom

                                        1                cr.appeal72.23 J

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH : NAGPUR

                    CRIMINAL APPEAL NO.72/2023

Sheikh Adil Sheikh Harun,
Aged about 25 years,
Occupation : Unemployed,
R/o Dehni, Taluka Digras,
District : Yavatmal
(In District Prison, Yavatmal)                    ...     Appellant.

       - Versus -

1.   State of Maharashtra,
     Through P. S.O.Arni,
     District : Yavatmal.

2.   XYZ in Crime No.460/2022
     Police Station, Arni,
     District Yavatmal.                           ...    Respondents
                                .....
Mr. S.G.Varshani, Advocate for appellant.
Mr. V.A.Thakre, A.P. P. for respondent no.1.
Mr. S.G.Karmarkar, Advocate for respondent no.2.


                CORAM : VINAY JOSHI AND
                        BHARAT P. DESHPANDE, JJ.

DATE : 15.03.2023.

ORAL JUDGMENT (Per Bharat P. Deshpande, J.)

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1. Heard Mr. Sajid G.Varshani, learned counsel for

appellant, Mr. V.A.Thakre, learned APP for respondent no.1 and

Mr. S.G.Karmarkar, learned counsel for respondent no.2.

2. Admit. Heard finally at the admission stage with

consent of learned counsel appearing for the parties.

3. This is an appeal under Section 14-A of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989, thereby challenging impugned order

dated 23.1.2023 rejecting bail application filed by the

appellant.

4. Reply has been filed on behalf of respondent nos.1

and 2 opposing the present appeal.

5. The appellant was arrested on 2.9.2022 in Crime

No.460/2022 registered at Arni Police Station, District

Yavatmal, for the offences punishable under Sections 363,

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366, 366-A, 212, 376, 376(2) (n), 506 read with Section 34 of

Indian Penal Code, Sections 4 and 6 of the Protection of

Children from Sexual Offences Act, 2012 (POCSO Act),

Sections 3(2) (v), Sections 3(2) (v-a) and Section 3(1)(w)(i)

(ii) of the Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act, 1989.

6. In nutshell, it is the contention of the learned

counsel for the appellant that there is love affair between the

appellant and the victim and that the victim volunteered to

accompany the appellant at different places. The victim is 17

years of age and a matured girl having all understanding and

there was consensus amongst them to move from one place to

another and also with regard to physical relationship.

7. The learned counsel for the appellant would then

submit that since the Charge-sheet is already filed and other

two co-accused persons are released on bail, no purpose would

be served in rejecting the bail application. He would submit

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that the appellant is ready to reside at different place and

undertake not to enter the village where the victim resides.

He then placed reliance on the following decisions of this

Court:

(i) Anil Shankar Mallav Vs. The State of Maharashtra and

another (Bail Application No.2754/2021 dated 12.12.2021) ;

and

(ii) Vishal Prakash Kharade Vs. The State of Maharashtra,

through Police Station Officer, Police Station Tiwasa, Dist.

Amravati and another (Criminal Application (BA) No.758 of

2022 dated 24.8.2022).

8. The learned APP appearing for the State as well as

learned counsel appearing for respondent no.2 vehemently

opposed the present appeal on the ground that it is not at all a

simple love affair but, it is a conspiracy and the appellant

somehow convinced the victim, who was minor, to leave the

residence of her grandfather and to accompany him to

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different places only under the pretext of having love affair

and then sexually exploited her that too without her consent

and against her wish. Both the learned counsels would further

submit that that since the victim was minor, a question of

consent would have no relevance. The appellant, if released,

would certainly try to influence the victim as well as her

relatives and there is possibility of winning over such witnesses

or threatening them with the aid of other accused persons.

9. The learned Trial Court, after considering entire

material placed with the Charge-sheet, observed that the

victim was lured and trapped under the guise of showing love

and she was taken away from the lawful guardianship. First of

all, the appellant took the victim to Surat and when co-accused

persons intimated him, about missing report and the police are

in search of them, he shifted the victim from Surat and went to

Hyderabad and thereafter to Goa via Mumbai. At these places,

the appellant had sexually intercourse against the wish of the

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victim. She was not allowed to move out of the rented

premises whenever the appellant used to go out.

10. We have carefully perused the documents attached

to the Charge-sheet. It is clear that the victim as on the date of

the offence was below 18 years of age. Statement of the victim

recorded by the police under Section 161 of the Code of

Criminal Procedure and thereafter her statement recorded by

the Magistrate under Section 164 of the Code of Criminal

Procedure would clearly go to show that the appellant used to

follow her while she was going to attend the college and he, in

fact, forced her to get acquainted with him. The statement of

the victim further show that when she was attending the shop

of her grandfather at the village, the appellant used to visit the

said shop and was forcing her to talk with him and when she

refused to talk to him, he threatened her that on one day he

will kidnap her. The victim further stated that she used to

attend classes at Digras by travelling in an autorickshaw and at

that time, the appellant used to follow her on his motorcycle.

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Thus, it is clear from the above statements that it is not simply

a love affair as tried to be claimed, however, the appellant, in

fact, tried to influence the minor girl and forced her to

acquaintance with him. Admittedly, the victim is a girl from a

village and though she was studying in 11th standard in high

school at Digras, she was residing along with her grandfather

in the village called as "Dehni".

11. Both the statements of the victim clearly go to

show that she was lured to leave the house of her guardian

and thereafter she was taken to different places wherein the

appellant forced himself on her without her consent. At this

stage, it is necessary to note that when the victim was minor

i.e. below the age of 18, a question of consent has no meaning

at all. No doubt, it is is true that the victim accompanied the

appellant to Surat and thereafter to different places including

Goa, she was requesting the appellant to allow her to go to her

parents' place, however, the appellant was not allowing her on

the pretext that he will take her only after the period of one

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year. The statement of the victim further shows that he forced

her to withdraw amount from her bank account and then took

her to Mumbai and thereafter to Madgaon Goa. They stayed

in one room. The appellant used to go for work and while

leaving the room, he used to lock the said room from outside.

The victim was requesting the appellant to allow her to go,

however, he used to assault her. Finally, the victim managed to

call her mother and thereafter the parents of the victim

reached Madgaon and then they brought her back to Digras.

12. The medical examination report of the victim

supports the ocular statement. Thus, it is clear that the

present matter is not a simple case of love affair and hence the

decisions relied upon by the learned counsel for the appellant

in the cases of Anil Shankar Mallav (supra) and Vishal Prakash

Kharade (supra) are distinguishable.

13. It was submitted that the victim voluntarily

accompanied the appellant to different places without any

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complaint and hence, she consented to have such relationship.

Such submission are of no substance, for the simple reason

that in the present matter, Sections 363 and 366-A of the

Indian Penal Code have been invoked. The victim was

admittedly minor at the time of alleged offence. Therefore,

removing such minor from the custody of the guardian and

inducing such minor to go from place to place with an intent

that she would be forced or seduced to illicit intercourse, show

that her willingness or consent is immaterial. When the

Legislature intended that any consent of minor with regard to

sexual relationship, cannot be considered as consent in the

eyes of law, the same analogy applies to a minor, who is

removed from the legal custody and was induced or forced to

move from place to place knowingly that she would be forced

or seduced to have illicit relationship. In this matter, the

minor-victim, under the pretext of alleged love, was removed

from the local guardian and was taken to different places. The

intention of the appellant would clearly go to show that he

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wanted to satisfy his lust. Thus, such contention would not in

any way require to be considered at this stage for bail.

14. The apprehension shown by the learned Trial Court

that there is possibility of threatening the witnesses, if the

appellant is released on bail, cannot be simply brushed aside.

15. The other two accused persons were released on

bail, however, the appellant cannot claim parity as the role

played by other two accused persons is totally different.

16. Having said so, we are not inclined to accept the

contentions raised in the present appeal, which accordingly

deserve to be rejected.

17. The appeal stands rejected.

(BHARAT P. DESHPANDE, J.) (VINAY JOSHI, J.)

ambulkar.