Bombay High Court
Magesh S/O Vithal Bodade vs The State Of Maharashtra Thr. Officer In ... on 19 October, 2024
2024:BHC-NAG:11952
46.apeal.388.2024.judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.388 OF 2024
Mangesh s/o Vitthal Bodade,
Aged about 23 Years,
Occupation : Labourer,
R/o Parturda, Tahsil Sangrampur,
District Buldhana. ..... APPELLANT
// VERSUS //
1. State of Maharashtra,
Through Officer-in-Charge of
Police Station, Shegaon,
Tehsil Kamgaon, District Buldhana.
2. XYZ
Crime No.81/2024,
through Police Station Officer,
Police Station Shegaon,
Buldhana. .... RESPONDENTS
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Mr. Aniket Sawal, Counsel h/f Mr. H. R. Gadhia, Counsel for
the appellant.
Mr. Nitin Autkar, APP for respondent No.1/State.
Ms. Radha M. Mishra, appointed Counsel for respondent No.2.
----------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 19.10.2024
ORAL JUDGMENT :
1. Admit.
2. Heard finally with the consent of learned Counsel
appearing for the parties.
46.apeal.388.2024.judgment.odt
3. By this appeal, the appellant has challenged the order
passed by the learned Special Judge, Khamgaon, passed below
Exhibit - 4 in Special Case No.37/2024, by which the application of
the present appellant for grant of bail is rejected.
4. 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;
Sections 3(1)(w)(i)(ii), 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred
to as 'Atrocities Act').
5. 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 labour 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 ten rupee note. It is
further alleged that thereafter on 13/02/2024, the two boys
approached her and subjected her for sexual assault. On the basis
of the said report, police have registered the crime.
46.apeal.388.2024.judgment.odt
6. Heard learned Counsel for the appellant, who submitted
that as far as the involvement of the present appellant is concerned,
it is merely on suspicion. The test identification parade is held after
one month, after the incident. As far as the allegations are
concerned, ten rupee note was given to her, the mobile number
written on the said note was of the said co-accused, not of the
present appellant. The medical evidence nowhere substantiates the
allegation as hymen is shown to be intact. Now the investigation is
already completed and charge-sheet is filed. Considering the
allegation against the present appellant, he be released on bail.
7. Learned APP and learned appointed Counsel for the
respondent No.2 - victim strongly opposed the said appeal on the
basis that the statement of the victim and during identification
parade, she has identified the accused which sufficiently shows his
involvement in the alleged offence, in view of that, the appeal
deserves to be dismissed.
8. After hearing learned Counsel for the appellant, learned
APP for the State and learned appointed Counsel for the respondent
No.2 - victim, perused the investigation papers from which it
reveals the allegation is that she was subjected for sexual assault
on multiple occasions. The medical evidence shows that hymen is
shown to be intact, there were no injuries found on the person of
the victim. Admittedly, the injuries are not sine qua non to attract
46.apeal.388.2024.judgment.odt
the provisions of 376 of the Indian Penal Code, but considering the
fact that the investigation is completed and charge-sheet is filed,
further incarceration of the present appellant is not required. The
appeal deserves to be allowed by setting aside order passed by the
learned Special Court. In view of that I proceed to pass following
order:
ORDER
(i) The appeal is allowed.
(ii) The order passed by the Special Judge, Khamgaon
below Exhibit 4 in Special Case No.37/2024, rejecting the
bail application is hereby quashed and set aside.
(iii) The appellant Mangesh s/o Vitthal Bodade shall
be released on bail, 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; Sections 3(1)(w)(i)(ii), 3(2)(v) of the
Scheduled Castes and the 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.
(v) The appellant shall not enter into the vicinity of
village Chandola, Taluka Daryapur, District Amravati and
also Taluka Shegaon, District Buldhana, till the
culmination of the trial.
(vi) The appellant shall attend the proceedings before
the Special Court without seeking any exemption unless
there are exceptional circumstances.
(vii) The appellant shall not induce, threat or promise
any witnesses who are acquainted with the facts of the
46.apeal.388.2024.judgment.odt
present case either physically or through electronic
media.
9. The fees of the appointed Counsel be quantified as per
Rules.
10. The criminal appeal is disposed of.
(URMILA JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 23/10/2024 14:43:11
