Karbhari Muktaram Kayande And ... vs The State Of Maha. Thr . Pso Ps ...
2023 Latest Caselaw 2949 Bom

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

                        CRIMINAL APPEAL NO. 138/2023

 1.       Karbhari Muktaram Kayande,
          Aged about 52 yrs., Occ. Agriculturist,

 2.       Anil S/o. Karbhari Kayande,
          Aged about 30 yrs., Occ. Agriculturist,

 3.       Yogesh S/o. Karbhari Kayande,
          Aged about 27 yrs., Occ. Agriculturist,

          All R/o. Baygaon Khurd, Tah. Deulgaon
          Raja, Dist. Buldana.



                                                              APPELLANTS


                                    VERSUS

 1.       The State of Maharashtra,
          through Police Station Officer,
          Police Station Andhera,
          Tq. Deulgaon Raja, Dist. Buldana.

 2.       X Y Z (Victim in Crime No. 03/2023
          registered with P.S.O. Andhera,
          Tq. D. Raja, Dist. Buldana.)

                                                              RESPONDENTS
 -------------------------------------------------------------------------------------
 Mr. R. N. Ghuge, Advocate for appellants.
 Mr. V. A. Thakare, APP for respondent No.1.
 Mr. Mahesh Rai, Advocate for respondent No.2.



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

           DATE OF JUDGMENT               : 27.03.2023




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 JUDGMENT (PER VINAY JOSHI, J.)

Heard.

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

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('SC

and ST Act') seeking to quash the order of rejection of pre-arrest bail

dated 21.02.2023 passed in Anticipatory Bail Application No. 21/2023

by the learned Additional Sessions Jude, Buldana.

3. Crime has been registered vide C.R. No. 3/2023 with the

Police Station Andhera, Tq. Deulgaon Raja, Dist. Buldana for the

offence punishable under Sections 376-D, 354-A, 450, 294, 506 of the

Indian Penal Code, and Sections 3(1)(w)(ii), 3(2), 3(2)(va), 3(1)(r),

3(1)(s) of the SC and ST Act, alleging that the appellants have raped

victim (married lady) aged 23 years. Appellant No. 1 is the father of the

rest appellants. It is alleged that initially appellant No. 1 (father) has

committed forcible sexual intercourse with victim whilst on second

occasion remaining appellants (sons of appellant No.1) have committed

gang rape on the victim who belongs to the member of Scheduled Castes

and Scheduled Tribes.

4. The appellants have claimed pre-arrest bail on the ground

that it is a case of false implication on account of land dispute. The

learned counsel appearing for appellants took us through the

background of litigation, contents of First Information Report ('FIR')

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and urged that the appellants deserve for protection of the Court. On

the other hand, the learned APP and Mr. Rai, learned counsel appearing

for respondent No. 2/informant resisted the appeal by contending that

the victim has made serious allegations against all appellants. She has

detailed as to how she was subjected to sexual assault. Having regard to

the seriousness of offence, appeal is prayed to be rejected.

5. The facts of the case in brief are that on 06.01.2023, victim

-lady aged 23 years, lodged report. It is her case that her husband owns

ancestral agricultural land where they were residing. Her father-in-law

(Shivaji) was liquor addict as well as indulging into gambling.

Appellant No.1 Karbhai took disadvantage of Shivaji's bad vices and

under influence, got executed sale-deed of ancestral land from Shivaji in

his favour. The informant's husband (Shrikrishna) and other family

members have already filed a civil suit in that regard. The appellant

No.1 Karbhari was doing money landing business. It is informant's case

that approximately three months preceding to the lodging of FIR,

around 03.00 p.m. in the afternoon, appellant Karbhari came to her

house enquiring about her husband. While victim lady was offering a

glass of water, appellant Karbhari caught hold her hand and pulled her

closer. He demanded sexual favours, to which the victim denied.

Despite her resistance, by force he caused her to lay down and

committed forcible sexual intercourse. Appellant No.1 Karbhari also

threatened her not to disclose the things otherwise he would kill her

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children. She stated that thereafter also on several occasions, appellant

Karbhari used to commit forcible sexual intercourse by giving threat of

defamation. However, the victim did not disclose the things out of fear.

It is victim's case that Grampanchayat election was held in the village

on 18.12.2022. The victim has contested the election for the post of

member of the Grampanchayat. Appellant Karbhari also threatened her

to withdraw her nomination, but she did not.

6. It is victim's case that on 19.12.2022 around 10.30 p.m. she

was slept in her house along with her sister. At the relevant time, her

husband and brother-in-law had gone to the field for watering crops.

Around 11.00 p.m. while she was in sleep, appellant No. 2 Anil and

appellant No. 3 Yogesh (brothers inter se) entered into her house. She

asked as to why they came at midnight, on which Yogesh on the point of

knife, threatened to kill her son. Thereafter, both of them, turn by turn,

forcibly committed sexual intercourse with her. Victim's sister Nita got

awakened and started to raise alarm, however appellant Yogesh

threatened her to keep quiet. Both of them abused in the name of caste

and went away. The victim got frightened. She has disclosed the

incident to her family members on 29.12.2022. Thereafter, all of them

decided to lodge report and thus, on 06.01.2023, they approached to the

concerned Police Station and lodged report.

5 apeal138.23.odt

7. The learned counsel appearing for the appellants would

submit that the entire story narrated by victim about rape by the father

and two sons is totally false and fabricated. They have been implicated

in false case on account of land dispute. To support said contention,

appellants have produced a copy of sale-deed dated 12.01.2022 showing

that victim's father-in-law Shivaji had sold the subject land in the name

of wife of appellant No.1 and mother of appellant Nos. 2 and 3. There

was internal land dispute in between two wives of owner Shivaji. The

sale was not approveable to victim's husband (son of Shivaji) and

therefore, in order to pressurize and get back the land, false report has

been lodged.

8. The learned counsel for the appellants would submit that

owner Shivaji (father-in-law of victim) was having two wives namely

Rekha and Gangu. Rekha has two sons namely Parmeshwar and

Shrikrishna (husband of victim) which is not disputed by the victim.

Copy of sale-deed discloses that on 12.01.2022, Shivaji and his second

wife Gangu sold subject land to appellants by registered sale-deed,

which is not in dispute. It is appellants' contention that due to internal

family dispute, another wife of Shivaji namely Rekha and her two

children did not like the sale and therefore, they had a serious grudge

against the purchaser of the land i.e. appellants.

6 apeal138.23.odt

9. In order to support the case of false implication, the

appellants have produced a copy of N.C. Report dated 23.01.2022

lodged by wife of appellant No.1 namely Chandrabhaga. In the said

report, it is alleged that Shrikrishna (husband of victim) threatened

that if their ancestral land is taken away, he would commit suicide, and

gave threats. More particularly, a copy of complaint dated 22.06.2022

filed by Chandrabhaga (purchaser and wife of appellant) to Tahsildar

has been produced. She has contended about purchase of subject land

on 12.01.2022 from Shivaji and his second wife Gangu. She stated that

when they started to plough the land, the first wife of Shivaji namely

Rekha and her two sons Parmeshwar and Shrikrishna obstructed to

their possession. Particularly, she stated that they have threatened that

if she enters into the land, then they would file a case under SC and ST

Act and other provisions. On that basis, it is argued that already

Shrikrishna was annoyed by purchase of their ancestral land by the

appellants, therefore had threatened to file false case under SC and ST

Act.

10. On this background, it is canvassed that in order to

pressurize the appellants for return of land, at the behest of Shrirkishna

and other family members, false report of rape has been lodged. The

appellants have also produced copies of two affidavits sworn by Shivaji

and Gangu stating that no such incident occurred, but the allegations

made by the victim who is their daughter-in-law are false one. It is also

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submitted that allegation of rape by father and two sons on the same

lady are inherently improbable. It is submitted that appellant Karbhari

is heart patient. He has undergone angioplasty on 30.04.2022 and was

hospitalized upto 02.05.2022. Thereafter, he took treatment at

Aurangabad on 30.08.2022 and 13.12.2022. Therefore, it is improbable

that he has continuously committed forcible sexual intercourse on the

victim. It is submitted that since there is no prima facie case, statutory

bar under Section 18 of the SC and ST Act would not apply.

11. Per-contra, learned counsel appearing for victim would

submit that the appellants are waity person of the village. Though it

was ancestral land it was not exclusively owned by Shivaji, however by

playing fraud, the appellants got executed sale-deed from Shivaji and

his second wife Gangu. Already first wife of Shivaji (Rekha) along with

her two sons and two daughters-in-law (including victim) have filed a

civil suit for partition. The appellants got annoyed by such dispute and

therefore, forcibly raped victim. It is argued that the victim has

specifically stated the act of sexual violence which cannot be doubted at

this stage. The victim's sister namely Nita has witnessed the

occurrence. Though FIR was lodged after few days, however the victim

and her family were under tremendous pressure. Considering the

seriousness, it is submitted to reject the bail.

12. So far as the sale of land is concerned, there is no dispute.

Victim's father-in-law Shivaji and his second wife Gangu had sold

8 apeal138.23.odt

subject land to the appellants' wife. Shivaji's first wife Rekha and her

two sons Parmeshwar and Shrikrishna along with their wives (including

victim) have objected the sale by filing civil suit. Obviously, they were

aggrieved against the appellants as they had purchased the said

property from victim's father-in-law Shivaji. In aforesaid background

the allegations are to be examined on prima facie basis. The victim

stated that she was residing along with other family members in the

subject land. Prior to three months the appellant Karbhari in the

afternoon, entered into her house and committed forcible sexual

intercourse. Appellant Karbhari repeated the things on various

occasion, but out of fear, she remained silent. The learned counsel for

the appellants would submit that Shivaji and Gangu were residing

together with the victim, but they have filed affidavit stating that no

such incident occurred. True, at this stage, no much waitage could be

given to those affidavits. Pertinent to note that victim lady though

alleges that the first incident of rape occurred prior to three months and

it was repeated, however she never disclosed the things to anybody. She

has not stated the date as to when the initial incident occurred. She has

vaguely stated that thereafter also the things were repeated at the hands

of appellant Karbhari without specification. On the background of

inimical terms on account of land dispute, prima facie, it is impossible

to hold that for three months, she kept silence despite repeated rape.

9 apeal138.23.odt

13. As regards to the second incident dated 19.12.2022 is

concerned, it is alleged that both brothers have simultaneously raped

victim on the point of knife despite raising alarm. It is a matter of

consideration as to how the neighbouring persons did not get wind of

alarm and nobody heard shouts. The said incident allegedly occurred at

late hours i.e. 11.00 p.m. at midnight. Therefore, prima facie, it is

difficult to accept that all male members had gone to the field for

watering crops. It has come on record that on 18.12.2022, the victim

lady fought election for the member of Grampanchayat and declared

defeated on 19.12.2022. It assumes signifance that, the victim lady

fought Grampanchayat election. It is not a case that the victim was

mere village house wife, but she appears to be active in village politics.

Therefore, it is hard to believe that despite repeated rape, she did not

disclose the things to her family members out of fear. Moreover, though

as per victim's case, she has disclosed the things to her family members

on 29.12.2022, however again for next one week no report has been

lodged. Pertinent to note that already a civil dispute was going in

between the parties. In such background, they would have been

immediately reported the matter to the Police, but they did not.

Therefore, it requires serious consideration about the worth of victim's

contention.

14. Apparently, there was a family dispute at the instance of

land disput. Victim's father-in-law Shivaji and his second wife Gangu

10 apeal138.23.odt

had already sold subject land to the appellants' wife. Shivaji's first wife

Rekha and her two sons Parmeshwar and Shrikrishna along with their

wives (including victim) have objected the sale by filing civil suit against

the appellants. In such background, possibility of false implication

cannot be ruled out. Moreover, there is considerable delay in lodging

FIR. The victim appears to be a lady of good understanding as she

actively participated in village politics, still she has not lodged report

about serious occurrence. It also creates doubt that in night hours two

brothers committed rape and despite raising alarm, nobody came to

their rescue. The allegation against appellant No.1 Karbhari appears to

be vague without specification. There is no justification about non-

discloser of earlier occurrence for a long period of three months that too

on the allegation of repetition in between the interregnum period.

15. The learned counsel for the appellants relied on the

decision of the Supreme Court in case of Prathvi Raj Chauhan Vs.

Union of India and others, (2020) 4 SCC 727 to contend that in

absence of prima facie case, statutory bar under Section 18 of the SC

and ST Act would not apply. In the said case, it is observed that when

no prima facie material exist warranting arrest in a complaint, the Court

has inherent power to direct a pre-arrest bail. The powers are to be

used sparingly, where no prima facie offence is made out and if such

order are not made, the result would inevitably be a miscarriage of

justice or abuse of process of law. Moreover, reliance is placed on the

11 apeal138.23.odt

decision in case of Hitesh Verma Vs. State of Uttarakhand and

another, (2020) SCC 710 to contend that unless atrocities is only on

account of victim belonging to the member of Scheduled Caste and

Scheduled Tribe, the provisions of the special Act would not attract.

16. Above discussion leads us to hold that no prima facie case

attracting the provisions under the SC and ST Act were made out.

There are several inherent improbabilities in the case made out by the

victim. The possibility of false implication to pressurize the appellants

to get back the land prominently surfaces. One of the object of grant of

pre-arrest bail is to protect personal liberty and to avoid humiliation of

arrest in false case. In view of above peculiar facts, we see no reason for

custodial interrogation. Already investigation is at the verge of

completion. In the circumstances, we deem it appropriate to grant

pre-arrest protection to prevent miscarriage of justice and to protect the

life and personal liberty. The purpose of investigation would be served

by imposing certain conditions while granting protection.

17. In view of that, the appeal deserves to be allowed, hence

following order:-

(I) In the event of arrest of appellants namely Karbhari Muktaram Kayande, Anil S/o. Karbhari Kayande and Yogesh S/o. Karbhari Kayande, they shall be released on anticipatory bail on their furnishing P.R. Bond of Rs. 25,000/- each with one or two sureties in the like amount.

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               (II)     The appellants shall attend concerned Police Station on

every Sunday and Wednesday in between 10.00 a.m. to 01.00 p.m. till filing of charge-sheet or for the period of 90 days whichever is earlier.

(III) The appellants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case, as also shall not tamper with the evidence.

(IV) The appellants shall provide their residential address and cell number to concerned Investigating Officer and shall not change their place of residence without prior intimation to the concerned Investigating Officer.

(V) The above observations are restricted to the decision of this application, which has no impact on the merits of the case.

18. Appeal stands disposed of in above terms.

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


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