Bombay High Court
Ejaj S/O. Shafikha Pathan vs The State Of Mah. Thr. Pso, Ps ... on 3 May, 2023
Bench: Vinay Joshi, Bharat Pandurang Deshpande
Judgment apeal285.23
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL No. 285/2023.
Ejaj s/o Shafikha Pathan,
Aged about 32 years,
Occupation- Labour, resident of
Kachar Mohalla, Armori,
Tq. Armori, District Gadchiroli
[Presently at District Prison,
Chandrapur]. ... APPELLANT.
VERSUS
1.The State of Maharashtra,
through Police Station Officer,
Police Station Armori,
Taluq Armori, District Gadchiroli.
2.XYZ in Crime No.438/2022
Registered at Police Station Armori,
Taluq Armori, District Gadchiroli. ... RESPONDENTS.
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Mr.R.M. Daga, Advocate for the Appellant.
Mr. A.M. Kadukar, A.P.P. for Respondent No.1/State.
Ms. D.V. Sapkal, Advocate [Appointed] for Respondent No.2.
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CORAM : VINAY JOSHI AND
BHARAT P. DESHPANDE, JJ.
DATE : MAY 03, 2023.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard. Considering the controversy involved in the
matter and by consent of the learned Counsel for the parties, the
Appeal is taken up for final disposal.
Admit.
[
2. This is an appeal in terms of Section 14-A of the
Scheduled Caste and Scheduled Tribes [Prevention of Atrocities] Act,
[Atrocities Act] raising challenge to the order of rejection of regular
bail passed by the Additional Sessions Judge, Gadchiroli in Criminal
Bail Application No.288/2022 on 02.03.2023. The appellant came
to be arrested in connection with Crime No.438/2022 for the
offence punishable under Sections 363, 376, 376[2][n] and 376[3]
of the Indian Penal Code, Sections 4 and 6 of the Protection of
Children from Sexual Offences Act and Sections 3[1][w][i],[ii], 3[2]
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[v] and 3[2][va] of the Scheduled Caste and Scheduled Tribes
[Prevention of Atrocities] Act. Bail is claimed on the ground of
innocence, false implication, inadequacy of the material absence of
force or compulsion etc. The State, as well as the learned Counsel
for the informant resisted the appeal by contending that the victim is
13 years and 10 months old, and thus, her consent assumes no
significance. Moreover, it is submitted that the offence is of serious
nature, which may attract punishment of severe nature. It is
submitted that the possibility of tampering with the evidence cannot
be ruled out.
3. It is informants case that she was having love affair with
the accused since last one year. Since informants family members
have disapproved their relationship, it was disassociated for some
period, but, later on continued. Once the victim went to Pachmarhi
with the accused and stayed there for two days, but, there was no
sexual assault. It is her case that on 09.11.2022, the accused called
the victim to the house of his friend, where the later went. She
stated that during the period from 09.11.2022 to 12.11.2022, daily
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she used to visit the house of friend of the accused during night
hours, where they had sexual relations, and therefore, the report.
4. The learned Counsel for the appellant has denied the
occurrence by stating that there was nothing beyond love affair. In
the alternative, it is submitted that the alleged occurrence was at the
instance of the victim, who was at the age of understanding. He
would submit that though minors consent has no meaning in the eye
of law, however, this aspect has to be considered while entertaining
bail application. It is pointed out that there is no force or
compulsion ever stated by the victim in her statement. In that
context, we have gone through the medical examination report,
which does not discloses the injury denoting use of force. It reveals
from the police papers that the victim who was having an
understanding to fell in love and maintain relationship, had on three
occasions during night hours, went to the accused where the alleged
incident occurred. It is apparent that at the most it is a case where
the victim herself went for the relation. More importantly, the
learned Counsel for the appellant has attracted our attention to the
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subsequent statement of victim recorded by the Magistrate in terms
of Section 164 of the Code of Criminal Procedure. In said statement
the victim no where stated about their sexual relations, rather she
stated that on three days she went to the room of the friend of the
accused for sleeping, but, never stated about sexual relations.
5. By this time, the investigation is completed and charge
sheet is filed. The trial will take its own time for disposal. Having
regard to the ABOVE circumstances, liberty of appellant can be
protected by imposing stringent conditions, so as to exclude the
possibility of tampering. In view of that following order is passed.
ORDER
[i] Criminal Appeal is allowed and disposed of.
[ii] The impugned order passed by the Additional Sessions
Judge, Gadchiroli in Criminal Bail Application
No.288/2022 on 02.03.2023 is quashed and set aside.
[iii] The appellant - Ejaj Shafikha Pathan shall be released on
bail in connection with Crime No.438/2022 registered
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Judgment apeal285.23
with Armori Police Station, District Gadchiroli for the
offence punishable under Sections 363, 376, 376[2][n]
and 376[3] of the Indian Penal Code, Sections 4 and 6 of
the Protection of Children from Sexual Offences Act and
Sections 3[1][w][i],[ii], 3[2][v] and 3[2][va] of the
Scheduled Caste and Scheduled Tribes [Prevention of
Atrocities] Act, on his executing P.R. Bond in the sum of
Rs.25,000/- with one or two sureties in the like amount.
[iv] The appellant shall not enter into the territorial limits of
Armori Tahsil, till the conclusion of trial.
[v] The appellant shall not tamper with the prosecution
evidence in any manner.
[vi] The appellant shall inform his intended place of residence
and cell/ mobile number to the Investigating Officer.
[vii] Fees of the appointed Counsel for Respondent no.2 be
paid as per Rules.
JUDGE JUDGE
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