Bombay High Court
Sachin Raghunath Toke vs State Of Maharashtra And Anr on 22 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:3321
PMB 36.apeal.50-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.50 OF 2024
SACHIN RAGHUNATH TOKE ..APPELLANT
VS.
1. THE STATE OF MAHARASHTRA
2. X.Y.Z. (VICTIM) ..RESPONDENTS
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Adv. Abhay A. Jadhavar for the appellant.
Ms. S. D. Shinde, APP for the State.
Adv. Prashant Jadhav for respondent No.2.
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CORAM : M. S. KARNIK, J.
DATE : JANUARY 22, 2024
ORAL JUDGMENT :
1. Heard learned counsel for the appellant, learned APP
for the State and learned counsel for respondent No.2.
2. By the judgment and order dated 02.04.2019,
Criminal Appeal No.361 of 2019 for bail filed by the
appellant was dismissed on merits. This is a second attempt
to seek bail. For convenience the judgment and order dated
02.04.2019 is reproduced which reads thus :-
"1. Heard. Admit.
2. Heard finally, considering the fact that this appeal is
challenging the order dated 16th January, 2019 passed by the
learned Special Judge, Pune, rejecting the application for grant
of bail moved by the Appellant-accused Sachin Toke in C. R. No.
372 of 2018 for offences punishable under S. 376(3), 506 read
with 34 of the Indian Penal Code, as well as S. 4, 6, 8, 10 & 12
PMB 36.apeal.50-24.doc
of Protection of Children from Sexual Offences Act, 2012 (for
short the "POCSO Act") and S. 3(1)(w), 3(2)(va) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short the "Atrocities Act").
3. The learned counsel for the Appellant-accused
vehemently argued that report of the medical examination of
the victim female child is not reflecting the fact that she was
subjected to forcible penetrative sexual assault. He further
argued that as per the FIR lodged by Respondent No. 2 - First
Informant, alleged obscene video recording clips were seen by
Nikita, who appears to be friend of Respondent No. 2. However,
her statement does not reflect the fact that she has seen any
obscene video of the first informant and the Appellant accused.
It is further argued that statement of Sejal, who happens to be
sister of the Appellant-accused does not reflect that video clip
seen by her was containing any obscene material. The learned
counsel further argued that FIR was lodged on 21.9.2018
whereas the alleged incident took place on 5.9.2019 as well as
before that day. With this, the learned counsel argued further
pretrial detention of the Appellant-accused is not warranted.
4. On the other hand, the learned APP supported the
impugned order by contending that medical evidence is
supporting the statement of the victim female child, Respondent
No. 2 in respect of penetrative sexual assault.
5. We have considered the submissions so advanced and
also perused the material placed on record, including the FIR as
well as report of the medical examination of the victim female
child. It is seen that the victim female child - Respondent No. 2
is a child of 15 years. She has categorically mentioned the fact
that at least on three occasions, she was subjected to
penetrative sexual assault by the Appellant-accused, on the
pretext of deleting selfie as well as video clips revealing the
victim female child and the Appellant-accused in intimate
position. Even if we ignore this fact, that the act was because of
allurement of deleting the video clips, still statement of the
victim female child shows that she was subjected to penetrative
sexual assault by the Appellant-accused. Version of the victim
female child is gaining corroboration from report of her medical
examination. Similarly, statement of witnesses show that they
had seen the victim female child as well as Appellant-accused
together. In this view of the matter, considering the fact that
there is prima-facie complicity of the Appellant-accused in the
alleged offence, no case for interference is made out, as also no
infirmity can be found in the impugned order rejecting the claim
of the Appellant-accused for his release on bail. In this view of
the matter, appeal is dismissed.
PMB 36.apeal.50-24.doc
6. However, the learned Special Judge / trial court shall
abide by the provisions of Section 35 of the POCSO Act to
complete the trial within a period of one year from the date of
taking cognizance of the offence. Needless to state that all
observations made herein are prima-facie and shall have no
bearing on the trial. Appeal is accordingly disposed of."
3. This Court had while rejecting the earlier bail
application in paragraph 6 observed that the Special Judge
shall abide by the provisions of Section 35 of the Protection
of Children from Sexual Offences Act (for short the "POCSO
Act") to complete the trial within a period of one year from
the date of taking cognizance of the offence. The order was
passed as far back as on 02.04.2019. I am informed that
the trial has progressed to the stage where only the
evidence of the victim has been recorded. The trial is likely
to take some time. As the victim who is the prime witness is
now examined, the question of tampering with the prime
witness is ruled out.
4. The appeal is seriously opposed by learned APP and
learned counsel for respondent No.2. It is contended that
the offence alleged is serious in nature and no indulgence
be shown to the appellant having regard to the nature of
the allegations.
PMB 36.apeal.50-24.doc
5. The appellant does not appear to be a flight risk.
It was submitted by learned counsel for the appellant that
the victim who was then around 15 years of age was in a
love relationship with the appellant. However having regard
to the provisions of POCSO Act, consent of a minor is
immaterial. It needs to be considered that the appellant is
in pre-trial custody for almost five years and six months.
The victim has now been examined. As far back as on
02.04.2019 this Court had directed the Special Judge to
complete the trial within a period of one year from the date
of taking cognizance of the offence. According to me the
pre-trial detention is sufficiently prolonged. In my opinion,
prolonging the custody of the appellant any further will be
in the nature of a pre-trial punishment. The appellant at the
relevant time was young boy of 20 years of age.
6. The appeal is accordingly allowed. The appellant is
enlarged on bail on his furnishing P.R. Bond of Rs.15,000/-
with one or more sureties in the like amount. The appellant
is permitted to furnish cash bail surety in the sum of
Rs.15,000/- for a period of 4 weeks in lieu of surety. The
PMB 36.apeal.50-24.doc
appellant shall not reside in the area of Khed taluka till the
conclusion of the trial except for the purpose of attending
the trial. The appellant shall attend the trial regularly. The
appellant shall co-operate with the trial Court and shall not
seek unnecessary adjournments. On being released on bail,
the appellant shall furnish his contact number and
residential address to the Investigating Officer and shall
keep him updated, in case there is any change. The
appellant shall not tamper with the evidence or attempt to
influence or contact the complainant, witnesses or any
person concerned with the case.
7. The appeal is disposed of in the above terms.
8. I appreciate the assistance rendered by Advocate
Prashant Jadhav who appeared on behalf of respondent
No.2 appointed through Legal Aid Services Authority.
(M. S. KARNIK, J.)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
Date: 23/01/2024 14:51:13
