Bombay High Court
Ramrup Khilavan Yadav vs The State Of Maharashtra on 2 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 3143
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Digitally
signed by
CRIMINAL BAIL APPLICATION ST NO. 2300 of 2020
Manali Manali P.
Tilak
P.
Tilak
Date:
2020.12.09
18:03:32
Ramrup Khilavan Yadav .. Applicant
+0530 Versus
State of Maharashtra & Anr .. Respondents
...
Mr. Sanjiv Sawant with Rohan Mahadik i/b The Juris Partners
for the applicant.
Mrs. M.M. Deshmukh, APP for the State.
CORAM: BHARATI DANGRE, J.
DATED : 2nd DECEMBER 2020
P.C:-
1 The applicant came to be arrested on 6 th June
2019 in connection with C.R.No. 180 of 2019, thereby
invoking Section 376AB, 354, 506, 506 of IPC and Section
4, 6 and 8 of Protection of Children from Sexual Offences
Act, 2012 (for short 'POCSO Act'). On completion of
investigation, he has been charge-sheeted and since 6 th June
2019, he is incarcerated.
2 The complainant is the mother of victim who is
aged 12 years, her date of birth being 16th April 2007. The
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complainant allege that she is residing at the given address
with her children and the present applicant is her second
husband and the victim girl is a daughter born to her out of
her first marriage and her first husband had deserted her
when the girl was three months old. She is residing with the
applicant for last 10 years and a baby boy is also born out of
the relationship between the complainant and the applicant.
3 On 6th June 2019, she was told by her sister that
her younger daughter was subjected to sexual harassment by
the applicant by touching her inappropriately at her private
parts and inspite of this, she was keeping quiet. When the
complainant confronted her daughter, as per the version of
her aunt, she reported that the applicant had tortured her for
last two months and he used to watch her taking bath,
changing clothes and prior to eight days, he had touched her
chest and other parts of body in an inappropriate way. She
also alleged that when the complainant was not at home, he
had shown her some obscene videos and photographs and
when she objected, she was threatened by the applicant that
he will kill her. This resulted into filing of an FIR with the
concern police station and though it mentioned Section 376A
and 376B, infact, it wold attract Section 376AB which
prescribe punishment for rape on women under 12 years of
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age and since the victim girl is below 12 years, this is the
offence which gets attracted but inadvertently in the FIR, it is
mentioned as Section 376A and 376B.
4 The statement of the victim girl came to be
recorded on 9th June 2019 and she has answered to a question
posed to her as to what she told to her aunt and grand
mother. She has responded by stating that yesterday night,
her father had placed his hand on her chest and also slipped
his hand in her panty and she was scared. She reported this
incident to her aunt and when asked as to who is the
applicant, she has stated that he is her father, but he is not
good and he abuses, assaults and therefore, being aggrieved,
she has approached the police station. At that time, she has
gained knowledge that he is her step father. Before that, she
was not aware of this fact. When asked, what is the
harassment she has faced, she responded by stating that when
she went for bath, he came close to her and had showed her
obscene video clips.
5 On 10th June 2019, statement of her aunt has been
recorded and she has stated that her niece had visited her
mother's place on 5th June 2019 and she was very sulken.
When inquired, she was reported to have stated that yesterday
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night, her father did not allow her to sleep and he had pressed
her chest and placed his hand inside the underwear. She
confronted the mother of the victim girl on 6 th June 2019 and
then, a report came to be lodged.
6 The victim girl was subjected to medical
examination at Sassoon General Hospital on 7th June 2019.
In the history recorded in column no.15 of the proforma, she
has reported that about 5 to 6 days back, when the victim was
sleeping at night, the accused had come to her room and
started touching her inappropriately. He grapped her breast
and touched her genitals and threatened to kill her and her
mother if she report about the incident to anyone. It is
recorded that the victim has not given history of anal/vagina/
oral penetration. No history of fingering given. On
examination, an abrasion was noted on the left lateral aspect
of neck but it was described to be not fresh. On examination
of the genitals, her labia majora and labia minora is found to
be intact along with perineum. The position of hymen is
'tears present at 8'o clock and 11'o clock position'. No
penetrial inflammation is noted. In column no.25, the
opinion of the Doctor is inscribed in the following words :-
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"From clinical examination, there is evidence of vaginal
penetration with surface injury as mentioned (not
fresh)".
7 The victim girl's statement came to be recorded
under Section 164 of the Code of Criminal Procedure before
the Magistrate, Pune on 25th June 2019. She state that the
applicant is not her real father and he used to often scold her
on account of not studying and watching T.V and playing
games on mobile. She has disclosed this fact to her aunt and
this was reported by her aunt to her mother. The victim girl
state that her father had not done anything. He is a good
person. She was very scared before the police and therefore,
she had lied. She further state that the applicant is more kind
than her real father and she is not even aware who her real
father is. She absolve the applicant of the allegations and
state that she do not want her father to be punished,
otherwise she will also be punished for lying. She state that
she watched TV shows like CID and Savdhan India and
therefore, she knows everything. Since her father had scolded
her for not prosecuting her studies properly, she was very
annoyed and she lied to the police.
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8 In the backdrop of the said material, heard Shri
Sawant, learned counsel for the applicant. He has invited my
attention to another aspect of the matter being the Criminal
Application filed for quashing of the FIR before this Court
and numbered as Criminal Application No.117 of 2020. He
has tendered a copy of the said application during the course
of hearing. This is accompanied by 164 statement of the
victim girl, an affidavit of her aunt Pratiksha who has stated
that there was some miscommunication and in fact, no such
incident as alleged in the complaint, had taken place. The
mother of the applicant has also filed an affidavit in the
present bail application wherein she has averred that due to
some misunderstanding between her and her younger sister,
the FIR came to be filed.
9 Pertinent to note that in the criminal application
No.117 of 2020, on 25th February 2020, the following order
came to be passed by the Division Bench headed by the
Hon'ble The Acting Chief Justice which reads as under :
1. The Complainant/Respondent no.2 has given
affidavit stating that incorrect facts have been
mentioned by Investigating Officer in the report. On
the basis of those facts, Investigating Officer has
registered offences under Sections 376-A, 376-B and
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other sections of the IPC and also under Sections 4, 6,
8 and 12 of the POCSO Act. Affidavit tendered by
Respondent No.2 is taken on record. Learned
counsel for the applicant submits that victim's
daughter is also present with respondent no.2 in the
Court.
2 Before proceeding further, we find it necessary
that the child should have a proper counselling.
3. Therefore, we direct respondent no.2 and child
to appear before CWC at Pune on 23.03.2020.
CWC, Pune shall carry out necessary counselling
sessions and submit its report to the Registrar of this
Court in sealed envelope within further four weeks.
4. Learned APP has appeared for Respondent
No.1 - Investigating Officer. Investigating Officer
shall take necessary steps to see that these directions
are complied with.
10 In furtherance of the said order, the victim girl was
referred to CWC and a report of the District Child Protection
Officer, Pune is tendered. The report is dated 4 th November
2020.
After making reference to the order passed by the
High Court, the concerned Officer report about the
counseling offered to the victim girl. It is stated by the girl
that her father satisfy all her requirements and encourages her
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to study. He has given her his name. She has reported that in
the fit of anger, she had lodged the complaint at the say of
her aunt but in fact, at present she do not have any grievance
against her father. The Protection Officer has therefore
reported that the girl is not capable of taking her decision and
act as per the dictate of her aunt to whom she is very closely
associated. The counselor report that her aunt had instigated
her and there might be some vested interest involved. As per
the report, her father had hit her, is what she had reported to
her aunt, who in turn told it to her mother and a report came
to be lodged. The report said that there is a possibility of her
mother and aunt conniving together. Counseling was
offered to the victim girl and it is also reported that she do not
appear to be interested in studies but enjoy watching crime
shows, chitchatting on mobile and since she is in her
adolescence, she like to enjoy her freedom. The report
therefore, opined that the girl has admitted her mistake in
falsely reporting the incident. It is reported that there is a
communication gap between the victim girl and her parents.
She requires to be counseled further. Her father stay outside
the house for whole day and all facilities are made available to
her and the girl has been used as a scapegoat. Even the
parents require counselling, is the opinion of the District
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Child Protection Officer. The said report is taken on record
and kept in the file.
11 In light of the said report and particularly in the
statement of the victim girl recorded under Section 164 of the
Cr.P.C, when she has stated the circumstances in which she
lodged the false complaint, and since the petition for
quashing of the FIR has been instituted by the applicant and
the affidavit of the victim's aunt has been placed on record,
since the parties have categorically averred that the FIR is on
account of the misunderstanding, ultimately the fate of which
will be decided by the Division Bench when it consider the
said application. In the circumstances which are surfacing,
the applicant in my considered opinion, do not deserve a
further incarceration. If the quashing petition is not allowed
and if at the end of the trial, the applicant is found to be
guilty of the charges levelled, he will undergo the punishment
as prescribed by law. However, at present, he cannot be
denied his liberty when the victim girl herself has given
statement to the Magistrate absolving him of the charges
levelled. The applicant is therefore, entitled to be released on
bail on the following terms and conditions :-
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ORDER
12 Application is allowed.
(a) The Applicant -Ramrup Khilavan Yadav shall be released on bail in connection with C.R.No. 180 of 2019 registered with Bibwewadi Police Station on furnishing P.R. bond to the extent of Rs.20,000/- with one or two sureties of the like amount.
(b) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer and shall not tamper with evidence.
(c) The applicant shall mark his attendance in the Special Court dealing with POCSO cases once in two months.
SMT. BHARATI DANGRE, J Tilak