Bombay High Court
Sufiyan Ali S/O. Taj Ali Bailim vs The State Of Mah. Thr. Ps Arni, Dist. ... on 6 February, 2024
2024:BHC-NAG:1588
48.apeal.359.2023.judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.359 OF 2023
Sufiyan Ali s/o Taj Ali Bailim,
Aged about 18 Years,
Occupation : Student,
R/o Amraipura, Arna,
Taluka Arni, District Yavatmal. ..... APPELLANT
// VERSUS //
1. State of Maharashtra,
Through Police Station, Arni,
District Yavatmal.
2. XYZ Victim,
In Crime No.1089/2022,
Registered at Police Station Arni,
District Yavatmal. .... RESPONDENTS
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Mr. Taj M. Malnas, Advocate for appellant.
Mr. A. R. Chutke, APP for respondent No.1/State.
Mr. J. V. Dhakate, Advocate h/f Mr. A. G. Hunge, appointed
Advocate for respondent No.2.
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CORAM : URMILA JOSHI-PHALKE, J.
DATED : 06.02.2024
ORAL JUDGMENT :
1. Heard.
2. Admit.
3. By this appeal, the appellant has challenged the order
passed by the Special Judge under the Scheduled Castes and the
48.apeal.359.2023.judgment.odt
Scheduled Tribes (Prevention of Atrocities) Act, 1989 in Special Case
No.19/2023 below Exhibit 16 dated 25.04.2023.
4. The appellant is arrested in connection with Crime No.
1089/2022 registered with Arni Police Station, District Yavatmal for
the offences punishable under Sections 363, 366-A, 376(2)(n) read
with Section 34 of the Indian Penal Code and under Sections 4, 6, 11
and 12 of the Protection of Children from Sexual Offences Act, 2012
and under Sections 3(2)(va), 3(2)(v), 3(1)(w)(i)(ii) of Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
5. The crime is registered on the basis of report lodged by
father of the victim girl alleging that on 09.12.2022 he along with
other family members slept in his house. In the morning, he woke up
and saw that his daughter was not in the house. He searched for her
but could not trace her. He received the informant that his daughter
was kidnapped by the present appellant on the promise of marriage.
On the basis of said report, police have registered the crime.
6. The learned Counsel for the appellant submitted that
during the investigation, the Investigating Officer has recorded the
statement of the victim, who is aged about 17 years, who stated that
there was a love affair between the victim and the present appellant
and out of love affair, she joined the company of the appellant. It is
48.apeal.359.2023.judgment.odt
alleged that present appellant has subjected her for sexual assault
against her consent. On the basis of said report, police have
registered the crime under Section 376 of the Indian Penal Code.
7. Learned Counsel for the appellant further submitted that
from the statement of the victim, it reveals that out of love affair, she
has joined the company of the present appellant and there was a
physical relationship between them. Subsequently, she has changed
her version and attempted to state that she was forced for the sexual
assault, but this statement is recorded on 19.12.2022 i.e.
approximately after nine days of the incident. Now, the investigation
is completed and charge-sheet is filed, further incarceration of the
present appellant is not required. In view of that, he be released on
bail.
8. Learned APP and learned Counsel for the victim strongly
opposed the application on the ground that the victim at the time of
incident was 17 years of age. Her consent is not relevant. She was
subjected for the forceful sexual assault by the present appellant. If
he is released on bail, he will tamper with the prosecution evidence.
9. After hearing the learned Counsel for the appellant and
after going through the investigation papers, it reveals that victim has
left the house at her own and joined the company of the appellant.
48.apeal.359.2023.judgment.odt
Admittedly, at the time of incident she was 17 years of age, but it
reveals that out of a love affair, they come together and therefore,
there was a physical relationship between them. Now, the
investigation is completed and charge-sheet is filed. Considering the
nature in which the alleged incident has taken place and now,
charge-sheet is filed, further incarceration of the present applicant is
not required. In view of that, the application deserves to be allowed
by allowing this appeal.
10. The learned trial Court has not considered this aspect
while rejecting the application. In view of that, the order passed by
the learned trial Court deserves to be quashed and set aside.
Accordingly, I proceed to pass following order.
ORDER
(i) The appeal is allowed.
(ii) The order dated 25.04.2023 passed by the learned
Special Court Additional Sessions Judge, Darwha in
Special Case No.19/2023 rejecting the bail application of
the appellant is quashed and set aside.
(iii) The appellant Sufiyan Ali s/o Taj Ali Bailim be
released on bail in connection with Crime No.1089/2022
registered with Arni Police Station, District Yavatmal for
the offences punishable under Sections 363, 366-A,
376(2)(n) read with Section 34 of the Indian Penal Code
and under Sections 4, 6, 11 and 12 of the Protection of
Children from Sexual Offences Act, 2012 and under
Sections 3(2)(va), 3(2)(v), 3(1)(w)(i)(ii) of Scheduled
48.apeal.359.2023.judgment.odt
Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989, on executing PR bond in the sum of
Rs.25,000/- with one solvent surety in the like amount.
(iv) The appellant shall not enter into the vicinity of
village Amboda, Taluka Arni, District Yavatmal, till
culmination of the trial.
(v) The appellant shall attend the trial Court regularly
without seeking any exemption unless there are
exceptional circumstances.
(vi) The appellant shall not induce, threat or promise
any witnesses who are acquainted with the facts of the
present case.
11. The fees of the appointed Counsel be quantified as per
rules.
[
(URMIL A JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 08/02/2024 19:32:14
