Bombay High Court
Umesh S/O Ramesh Shirekar vs The State Of Maharashtra Thr. Pso, ... on 9 October, 2024
1 appeal369.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 369 OF 2024
APPELLANT: Umesh s/o Ramesh Shirekar,
Aged about 24 years, Occ: Labour,
R/o Ekalara, Tq. Dist. Akola.
...V E R S U S...
RESPONDENTS 1. The State of Maharashtra,
through Police Station Officer,
Shegaon City, Tq. Khamgaon,
District Buldhana.
2. XYZ (Victim), in Crime No. 81/2024,
Through Police Station Officer,
Shegaon City, Tq. Khamgaon
District Buldhana.
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Mr. S.V. Sirpurkar, counsel for the appellant.
Mr. K.R. Lule, APP for respondent/State.
Mr. Aniruddha Anantkrushna, counsel (appointed) for respondent
No.2
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 09/10/2024
ORAL JUDGMENT :
1. Admit. Heard finally with the consent of learned
counsel appearing for the parties.
2. By this appeal, the appellant has challenged the
order passed by the Special Judge, Khamgaon, passed below
2 appeal369.2024.odt
Exhibit-6, by which the application of the present appellant for
grant of bail is rejected.
3. The appellant came to be arrested on 17/02/2024
in connection with Crime No. 81/2024 registered with Police
Station Shegaon City, District Buldhana for the offence
punishable under Sections 376(2)(I), 376(2)(n), 376(3)(D),
376(D)(A) read with Section 34 of the Indian Penal Code,
1860; Sections 3(C), 3(D), 4, 5 (L), 6 of the Protection of
Children from Sexual Offences Act; Section 3(1)(w)(i)(ii), 3(2)
(v) of the Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act (hereinafter referred to 'Atrocities Act').
4. The crime is registered on the basis of a report
lodged by the victim girl, aged about 14 years and four months,
alleging that her parents are doing the labor work. On
10/02/2024, as she has attended the school and her parents
took her to Bhuskuti Mala, they were busy with their work. At
the relevant time, one boy of a fair complexion wearing a sky-
blue shirt called her and subjected her for forceful sexual
assault by giving her 10 rupee note. She further alleged that on
13/02/2024, the two boys approached her and sexually
assaulted her. On the basis of the said report, police have
registered the crime against the present applicant.
5. Learned counsel, Mr. S.V. Sirpurkar for the
appellant, who submitted that as far as the involvement of the
present appellant is concerned, the FIR is lodged against the
unknown person. The test identification parade is held on
3 appeal369.2024.odt
05/03/2024, i.e., approximately one month after the incident.
He submitted that, as far as the allegations are concerned, she
was subjected for sexual assault on multiple occasions, which is
not substantiated by the medical evidence as the hymen is
shown to be intact. Now the investigation is already completed
and charge-sheet is filed. He further submitted that as far as the
allegation is concerned, which is only to the extent of the sexual
harassment and not sexual assault, because the allegation is in
the nature that the applicant and the other co-accused
forcefully asked her to masturbate his penis. He submitted that
now investigation is already completed and charge-sheet is
already filed, further incarceration of the applicant is not
required. In view of that, he be released on bail.
6. Learned APP strongly opposed the said appeal and
submitted that the victim is only 14 years of age and was
subjected for sexual assault. The identity of the present
applicant is revealed during the identification period.
Considering the prima-facie case against the present appellant,
the application deserves to be rejected.
7. Learned appointed counsel also reiterate the said
contention.
8. After hearing learned counsel for the appellant and
learned APP for the State perused the investigation papers. As
far as the allegation is concerned, it is alleged that she was
subjected for sexual assault on multiple occasions. The medical
evidence shows that hymen is shown to be intact, there were no
4 appeal369.2024.odt
injuries found on the person of the victim. The statements of
the witnesses are also recorded. As far as the medical evidence
is concerned, which does not substantiate the contention of the
present informant, the FIR is lodged against an
unknown person. The T.I. parade is held after one month of the
incident. Admittedly, whether the offence is made out under
Sections 4 or 8 of the Protection of Children from Sexual
Offences Act is a matter of evidence. At this stage, considering
the prima-facie material, the involvement of the present
applicant appears to be doubtful. In view of that and
considering the investigation is completed and charge-sheet is
filed, the appeal deserves to be allowed. Accordingly, I proceed
to pass the following order;
a] The appeal is allowed.
b] The order passed by Special Judge, Khamgaon
below Exhibit 6 in Special Case No. 37/2024,
rejecting the bail application is hereby
quashed and set aside.
c] The appellant shall be released on bail, Crime
No. 81/2024 registered with Police Station
Shegaon City, District Buldhana for the offence
punishable under Sections 376(2)(I), 376(2)
(n), 376(3)(D), 376(D)(A) read with Section
34 of the Indian Penal Code, 1860; Sections
3(C), 3(D), 4, 5 (L), 6 of the Protection of
Children from Sexual Offences Act; Section
5 appeal369.2024.odt
3(1)(w)(i)(ii), 3(2)(v) of the Scheduled Caste
and Scheduled Tribes (Prevention of
Atrocities) Act, on executing P.R. bond in the
sum of Rs.25,000/- with one solvent surety in
the like amount.
d] The appellant shall not enter into the vicinity
of village Chandola, Taluka Daryapur District
Amravati and also Tah. Shegaon District
Buldhana till the culmination of the trial.
e] The applicant shall attend the proceedings
before the Special Court without seeking any
exemption unless there are exceptional
circumstances.
f] The appellant shall not induce, threat or
promise any witnesses who are acquainted
with the facts of the present case.
g] The fees of the appointed counsel be
quantified as per Rule.
The criminal appeal is disposed of
accordingly.
[URMILA JOSHI-PHALKE, J.]
Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 17/10/2024 18:23:53
