Bombay High Court
Vaibhav S/O Anil Kude vs The State Of Maharashtra Thr. Ps ... on 8 May, 2024
2024:BHC-NAG:5666
1 950appeal180.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 180 OF 2024
APPELLANT: Vaibhav s/o Anil Kude (In Jail)
Aged 23 years, Occu- Driver,
Nandwardhan, Tah. Gondpipri,
District Chandrapur.
...V E R S U S...
RESPONDENTS 1] State of Maharashtra,
through Police Station Ramnagar,
Chandrapur, District Chandrapur.
2] XYZ, victim in crime No. 1383/23,
Police Station Ramnagar, Chandrapur,
District Chandrapur
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Mr. R.R.Vyas, counsel for appellant.
Mr. U.R.Phasate, APP for Respondent No.1.
Mr. Amol G. Hunge, counsel (appointed) for respondent No.2.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 08/05/2024
ORAL JUDGMENT :
1. Admit. Heard finally with the consent of learned
counsel appearing for the parties.
2. By preferring this appeal, the appellant has
challenged the order dated 13/03/2024 passed by the Special
Judge under the POSCO Act, Chandrapur, whereby the application
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of the present appellant for grant of bail is rejected.
3. The appellant was prosecuted for the offence
punishable under Sections 376, 376(2)(n), 376(3), 504, 506 of
the Indian Penal Code, 1860 read with Sections 4,6,12 of the
Protection of Children from Sexual Offences Act, and under
Section 3(1)(W)(i)(ii), 3(2)(v) (a) of the Atrocities Act.
4. The accusation against the present appellant is on the
basis of report lodged by the victim girl aged about 14 years, who
alleged that she got acquaintance with the present appellant, as he
is from the same village. He used to visit her house, and on
14/02/2023, he has obtained her photograph and not provided
her for the said photographs, and was threatening her that he will
make the said photographs viral and was sexually harassing her.
As per her allegation, in the month of July-2023, he made a phone
call to her and called her at Chandrapur Ram Setu Bridge and also
threatened her, if she doesn't turned up, he will make the said
photographs viral. Therefore, she went there to meet him and he
took her at one place and subjected her forceful sexual assault. On
the basis of the said report, police have registered the crime
against the present appellant.
5. Learned counsel Mr. R.R.Vyas for the appellant
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submitted that as far as the allegation of the sexual assault are
concerned, which is not substantiated by the medical report as no
external injury is found on the person of the victim. Moreover, on
examination of the genitals, no injury is found on the hymen or
there was hymenal tear also. He further invited my attention
towards the mobile verification panchanama, from which, also
reveals that on verification of the mobile phone, no video or
photographs are seen in the mobile phone of the present
appellant. Thus, he submitted that these two circumstances are
sufficiently shows that there was a love affair between the present
appellant and the victim but it was opposed by the family
members and therefore, she has lodged the false report, due to the
pressure of her family member. He further invited my attention
towards various statement which shows that, the appellant had
been to the house of the relatives alongwith deceased and victim
was introduced as his friend. At the relevant time, the victim has
not made any grievance that she was not forcefully by the present
appellant. Now, investigation is already completed and charge-
sheet is already filed, further incarceration of the present appellant
is not required. In view of that, the order passed by the Special
Court deserves to be quashed and set aside.
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6. Learned APP and learned appointed counsel strongly
opposed the appeal, on the ground that 14 years girl was subjected
for sexual assault by pressurizing her by taking the photographs
viral. Thus, prima-facie case is made out against the appellant. In
view of that, learned trial Court has rightly rejected the application
and no interference is called for.
7. Having heard learned counsel for the appellant,
learned APP for the State and learned appointed counsel for the
respondent No.2, perused the recitals of the FIR. As far as the
allegation of the victim is concerned, that by obtaining her
photographs and threatening her, he will make the said
photographs viral, she was subjected for sexual assault are not
supported or substantiated by the Panchanama. As the recitals of
the panchanama specifically shows that, after the verification of
the mobile phone of the accused, no photographs or any
objectionable material was found in the mobile phone of the
present appellant. The victim was also referred for the medical
examination, wherein no external injury or even no tear was
found in her genitals i.e. hymen. Now, investigation is already
completed and charge-sheet is already filed. During the
investigation, the investigating officer has recorded the various
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statement of the victim, which shows that victim was seen along
with present appellant at the house of the relatives of the present
appellant, wherein victim has not made any grievance, regarding
any force used by the present appellant on her. On the contrary,
the statement shows that victim approached to the relatives of the
present appellant at her own. Considering the various statement
recorded by the investigating officer and the contention of the
victim is not substantiated by the medical evidence. Moreover, the
investigation is already completed and charge-sheet is filed,
further incarceration of the present appellant is not required in
view of the above circumstances. The appeal deserves to be
allowed. Accordingly, I proceed to pass following order :
a) The criminal appeal is allowed.
b) The appellant - Vaibhav s/o Anil Kude shall released
on bail in connection with Crime No. 1383 /2023,
registered with Police Station Ramnagar, Chandrapur
for the offence punishable under Sections 376, 376(2)
(n), 376(3), 504, 506 of the Indian Penal Code, 1860
read with Sections 4,6,12 of the Protection of
Children from Sexual Offences Act, and under Section
3(1)(W)(i)(ii), 3(2)(v) (a) of the Atrocities Act, on
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executing P.R. bond in the sum of Rs.25,000/- with
one solvent surety in the like amount.
c) The order passed by the learned learned Special
Judge, Chandrapur, dated 13/03/2024 is hereby
quashed and set aside.
d) The appellant shall not enter into the vicinity of
Gondpipri, District Chandrapur till culmination of the
trial.
e) The appellant shall not induce, threat or promise any
witnesses who are acquainted with the facts of the
present case.
f) The fees of the appointed counsel be quantified as per
the Rules.
The Criminal Appeal is disposed of accordingly.
[URMILA JOSHI-PHALKE, J.]
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Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 09/05/2024 19:30:37
