Bombay High Court
Bhagwan S/O. Pratap More (Bhil) vs The State Of Maharashtra And Anr on 11 January, 2019
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
914 BAIL APPLICATION NO. 1340 OF 2018
Bhagwan s/o Pratap More (Bhil),
Age : 21 Years, Occu.: Agriculture,
...Applicant
R/o.: Village babre, Tq. and District:Dhule
Versus
1 The State of Maharashtra
Through : Dhule Taluka Police Station,
Dhule.
2. Anuradha Mansaram Sonawane,
Minor through her guardian,
Subhash Mansaram Sonawane,
Age : 42 years, Occu.: Labour,
R/o.: Babre, Tq. & Dist.: Dhule ...Respondents
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Mr. Y. B. Bolkar, Advocate for applicant.
Mr. S. P. Deshmukh, for respondent No.1- State.
Mr. M. L. Sangit, Advocate for respondent No.2.
----
CORAM : MANGESH S. PATIL, J.
DATE : 11-01-2019.
PER COURT :
The applicant is seeking bail in connection with Crime No. 226 of 2017 registered with Police Station : Dhule Taluka for the ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 05:24:23 :::
2 914 ba 1340-18 f offences punishable under Sections 376(2)(f), 363, 366-A of the Indian Penal Code and also for the offences punishable under Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012.
2. Shortly stated the prosecution case is to the effect that on 12 July 2017 the victim, who was aged 14 years had left home under the pretext of going for answering the natures call. When the family members started searching her, it was transpired that even the applicant was missing from his home, who was residing in the same locality. The FIR was lodged by her father on 17.07.2017 and the offence was registered under Section 363 and 366-A of the IPC. After the couple was traced, statement of the victim was recorded. She narrated about the applicant having maintained frequent sexual relations with her during period interregnum. Accordingly rest of the sections / offences were included. The applicant was arrested on 20.09.2017 and is now seeking bail after the charge sheet was filed on 30.11.2017.
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3. Learned advocate for the applicant submits that the applicant has been suffering pre-trial conviction since he has been in Jail for more than a year. He would then point out that going by the prosecution version, in all probability victim must have left the custody of her parents on her own. He would further submit that she has come out with contradictory and inconsistent version regarding sexual intercourse. The trial has not proceeded and is not likely to get over soon. The applicant is ready to abide by the conditions that would be imposed. During the course of medical examinations, the victim has narrated the history, wherein she has specifically stated about having an affair with the applicant. There are no apparent signs of sexual intercourse noticed during the course of medical examination and therefore, there is very weak possibility of the applicant being convicted at the trial. Therefore, taking into account all these facts and circumstances he may be granted bail.
4. Learned advocate further tried to convince me by ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 05:24:23 ::: 4 914 ba 1340-18 f referring to several judgments of the Supreme Court as to what parameters need to be taken into consideration while considering the applications for bail viz.
i) Lt. Col. Prasad Shrikant Purohit vs. State of Maharashtra, (2018) 11 SCC 458;
ii) Umaria @ Mamumia vs. State of Gujarat, (2017) 2 SCC 731;
iii) Vinod Bhandari vs. State of Madhya Pradesh, (2015) 11 SCC 502;
iv) Sanjay Chandra vs. Central Bureau of
Investigation, (2012) 1 SCC 40;
v) State of Kerala vs. Raneef, (2011) 1 SCC 784
and
vi) Motilal Saraf vs. State of J & K and another
(2006) 10 SCC 560.
5. Learned advocate also pointed out few orders of this Court passed by single judges, wherein the accused under POCSO Act were granted bail by this Court namely Sunil Mahadeo Patil Vs. The State of Maharashtra, 2016 ALL MR (Cri) 1712, Dadu @ Sushant Sunil Kamble Vs. State of Maharashtra in Criminal Bail Application No. 159 of 2014 dated 11.02.2014, ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 05:24:23 :::
5 914 ba 1340-18 f Suraj Kumar Patil Vs. State of Maharashtra in Criminal Bail Application No. 182 of 2014 dated 05.03.2014 and Vaibhav Bhaskar Kole Vs. State of Maharashtra in Criminal Bail Application No. 416 of 2015 dated 25.03.2015.
6. Per contra, the learned APP vehemently submits that the offence is heinous and punishable up to life imprisonment. There is apparently no dispute about the fact that the victim was aged 14 years at the time of incident. The offences punishable under the POCSO Act come with presumption which has to be rebutted and which is possible only during the course of trial. There is no dispute about the identity. The very fact that the applicant had taken away the girl aged 14 years and according to her he had sexual intercourse with her, that should be sufficient material at this juncture to reveal complicity of the applicant in commission of the crime and no leniency be shown.
7. I have carefully gone through the papers. As is pointed out by the learned A.P.P., at this juncture the only circumstance ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 05:24:23 ::: 6 914 ba 1340-18 f that needs to be borne in mind is about the fact that the victim was only 14 years old at the time of the incident. There is presumption under Sections 29 and 30 of the POCSO Act about commission of the crime and even about existence of culpable mental state. Bearing in mind these important aspects, in my considered view variations in the statement of the victim cannot be given unnecessary importance. Similarly, merely because she has stated about having an affair with the applicant during the medical examination, the applicant is not entitled to seek any benefit therefrom. It is precisely for these reasons that with respect, the applicant is also not entitled to seek any benefit from the observations in the decisions of the Single Judges of this Court referred to herein above.
8. The emphasis sought to be placed on the observations and the conclusion of the Supreme Court in the case of S. Varadrajan Vs. State of Madras, AIR 1965 SC 942 is misplaced in as much as it was a case of kidnapping and abduction punishable under section 363 and 366 of the IPC and ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 05:24:23 ::: 7 914 ba 1340-18 f the provisions of the POCSO Act were not involved which are involved in the matter in hand. At the cost of repetition it is important to note that the legislature has enacted this special statute to provide protection to children from sexual offences and it comes with the aforementioned presumptions which was not the case in the case of S. Varadrajan (supra). Consequently, the age of understanding is a factum which is out of the purview of the POCSO Act. The applicant is not entitled to seek reliance on the observations and conclusions in the case of S. Varadrajan (supra) as far as the provisions of POCSO Act are concerned.
9. Taking into account overall conspectus of the matter, in my considered view, the applicant is not entitled to be released on bail. There is every possibility of his influencing or threatening the victim, who is still minor, if he is released on bail. The application is rejected.
10. It is made clear that the observations made herein above ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 05:24:23 ::: 8 914 ba 1340-18 f are confined to the decision of this application and the learned Trial Judge shall not feel influenced by them.
(MANGESH S. PATIL, J.) vsm/-
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