Gujarat High Court
Rahulbhai Maganbhai Kalasava vs State Of Gujarat on 23 February, 2022
Bench: B.N. Karia
R/CR.A/2031/2021 ORDER DATED: 23/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2031 of 2021
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RAHULBHAI MAGANBHAI KALASAVA
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Appellant(s) No. 1
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 23/02/2022
ORAL ORDER
1. The appellant preferred one Criminal Misc. Application No.
5620 of 2021 before the Court of learned Special Judge (POCSO) ,
City Sessions Court, Ahmedabad u/s. 439 of the Code of Criminal
Procedure, 1973 requesting to enlarge the appellant on regular bail
on account of offence being registered vide C.R.
No.11192063200991 of 2020 with Vivekanand Police Station,
Ahmedabad for the offence punishable u/s. 307, 376(D), 376(2), (F),
(L), (M), 376-(A)(B) and 114 of the Indian Penal Code, Sections 3,
4, 5, G, H,I, M, N, 17 and 6 of the POCSO Act and u/s. 3(2)(5) and
3(1) (W)(1) of the Scheduled Caste and Scheduled Tribe (Prevention
of Atrocity) Act, 1989 (for short "the Atrocities Act") wherein, the
R/CR.A/2031/2021 ORDER DATED: 23/02/2022
learned learned Special Judge (POCSO) , City Sessions Court,
Ahmedabad rejected the said application on 03.08.2021.
2. Feeling aggrieved by the said order, the appellant preferred
present appeal u/s 14A of the Atrocities Act.
3 As per the cause list, notice was duly served to the respondent
No.2. Letter dated 17.01.2022 of Registrar City Civil & Sessions
Court, Bhadra, Ahmedabad, annexed with certain papers wherein it
is reported by P.I. concerned that notice is duly served to the
respondent No.2. Though, nobody was appeared to contest this
appeal for and on behalf of respondent No.2.
4. Heard learned advocate for the appellant and learned APP for
the respondent-State.
5. Learned advocate for the appellant has submitted that
appellant is innocent person and has not committed any of the
alleged offence. That bare reading of the FIR and charge-sheet
papers, nowhere it can be inferred that said appellant had committed
any offence as alleged in the FIR. That even considering the
allegations levelled in the FIR and also in charge-sheet papers, prima
facie involvement of present appellant is not made out. That
investigation is over and charge-sheet is filed. That in the TI parade,
R/CR.A/2031/2021 ORDER DATED: 23/02/2022
prosecutrix has identified Pavan Shankarbhai Dantani and TI parade
of appellant was not conducted. Hence, it was requested by learned
advocate for the appellant to quash and set aside the impugned
judgment and order passed by learned Special Judge (POCSO) , City
Sessions Court, Ahmedabad and release the appellant on bail.
6. Learned APP appearing for the respondent-State strongly
objected the submissions made by the learned advocate appearing
for the appellant and submitted that age of the victim was seven
years at the time of committing the offence and appellant is the uncle
of the minor victim, who had taken the victim in rickshaw with the
main accused namely Pavan Shankarbhai Dantani. It is further
submitted that appellant to take care of the victim being an uncle
and he had taken the victim along with him, but on the other hand,
appellant drunk liquor along with other co-accused and allowed the
co-accused to take advantage of the situation. That because of
which, appellant had taken the victim along with the co-accused, he
had abetted the crime by giving opportunity to the co-accused to
commit rape of the minor victim. That appellant is the abettor of the
co-accused and has committed serious offence of abetting in
committal of rape on the minor victim by the co-accused. Prima
R/CR.A/2031/2021 ORDER DATED: 23/02/2022
facie involvement of the appellant is established by the prosecution.
Hence, it is requested by learned APP appearing for the respondent-
State to dismiss the appeal.
7. Having heard learned advocate appearing for the appellant and
leaned APP appearing for the respondent-State and gone through the
papers produced on record, it appears as per the FIR dated
27.11.2020, at about 11:30 p.m. when the complainant of the said
FIR was cooking lunch and was engaged in household chores, at that
time, the appellant had come and told the complainant that
complainant is taking one girl namely Radhika (who happens to be
the niece of the appellant and who happens to be the daughter of the
complainant) out for drive in one auto rickshaw and shall return back
soon and at that time, complainant had replied the appellant stating
that complainant had to go out and in response, the appellant had
stated that the complainant need not worry as even if the
complainant is out, on returning back, the appellant shall drop the
girl with the grandmother of the girl who happens to be the mother
in law of the complainant. As per the FIR, when the complainant had
returned back at home, the complainant was shocked and
traumatized to see his daughter lying unconscious in one Rickshaw,
R/CR.A/2031/2021 ORDER DATED: 23/02/2022
stained with blood and seeing said site, the complainant was
traumatized and he had asked the rickshaw driver as to what had
happened to one daughter of the complainant and the said rickshaw
driver just answered that asked your brother-in-law namely
Rahulbhai Mangalbhai Kalasava about the same and meanwhile for
a moment said girl had gained consciousness and had stated that the
said rickshaw driver had grabbed her by the mouth and had soon lost
consciousness. As per the FIR, when the said girl had left her
residence in the morning she had left with proper clothing upper
wear as well as lower wear but as per the said FIR, when the said
girl returned back home, only her upper wear was to be seen and her
lower wear was missing and based upon this incident, said FIR was
registered and said appellant was incriminated as accused in the said
FIR.
8. It further appears that investigation is over and charge-sheet is
filed on 17.02.2021. It also appears that appellant has taken the
victim girl on a drive in the rickshaw of one person co-accused
namely Pavan Shankarbhai Dantani and after some time said co-
accused had offered to drink alcohol to the present appellant at a
nearby place of Rupaben Mahesh Chunara and the appellant got
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convinced, co-accused and appellant had consumed alcohol. Both of
them have taken bath in a logged pit by a kachha pakka road at the
nearby area. Appellant was rendered unconscious near some sand pit
and the co-accused taken the advantage of the said situation of the
appellant being unconscious and committed the offence with the
victim minor girl. Thereafter, the victim girl was dropped at her
residence by the co-accused. Victim, after discharging from the
hospital, has narrated the exact incident taken place with her
involving the co-accused ,who had taken the advantage of the
present appellant. If we refer the statement of the victim, it is
nowhere stated by her that any rape was committed by the present
appellant. In the TI parade also, co-accused was identified by the
victim. From the charge-sheet papers, it appears that, it is nowhere
stated by the prosecution that present appellant is the main accused
or he has committed any rape with the minor victim. Considering
the investigation papers and submissions made by learned advocate
for the appellant and learned APP appearing for the respondent-
State, this Court is satisfied that involvement of the present appellant
in the said offence is doubtful. There are no ingredients against the
present appellant to attract the provisions of Sections 3(2)(5) and
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3(1) (W)(1) Prevention of Atrocity Act.
9. Considering the nature and gravity of assertion made against
the appellant and in the facts and circumstances of the case and
considering the nature of allegations made against the appellant in
the First Information Report as well as considering the role of
present appellant in the alleged offence, the prayer sought for by the
present appellant requires consideration. Hence, this Court is of the
view that present appeal deserves consideration.
10. In the result, present Criminal Appeal is allowed and the
impugned judgment and order dated 03.08.2021 passed by learned
Special Judge (POCSO) , City Sessions Court, Ahmedabad in
Criminal Misc. Application No. 5620 of 2021 is hereby quashed and
set aside. The appellant is ordered to be enlarged on regular bail on
furnishing a bond of Rs. 10,000/- with one surety of like amount to
the satisfaction of the trial Court and subject to the conditions that
appellant shall;
[a] not take undue advantage of liberty or misuse
liberty;
[b] not act in a manner injurious to the interest of the
prosecution;
[c] surrender passport, if any, to the lower court
within a week;
R/CR.A/2031/2021 ORDER DATED: 23/02/2022
[d] not leave India without prior permission of the
concerned Trial Court;
[e] furnish the present address of residence to the
Investigating Officer and also to the Court at the time
of execution of the bond and shall not change the
residence without prior permission of this Court;
11. The authorities will release the appellant only if he is not
required in connection with any other offence for the time being. If
breach of any of the above conditions is committed, the Sessions
Judge concerned will be free to issue warrant or take appropriate
action in the matter. Bail bond to be executed before the lower Court
having jurisdiction to try the case. It will be open for the concerned
Court to delete, modify and/or relax any of the above conditions, in
accordance with law.
12. At the trial, the Trial Court shall not be influenced by the
prima facie observations made by this Court in the present order.
Notice is discharged.
13. Direct service is permitted.
(B.N. KARIA, J)
SUYASH
