Bombay High Court
Appa S/O. Ramhari Kale vs The State Of Maharashtra And Anr on 7 October, 2020
Author: B. U. Debadwar
Bench: Ravindra V. Ghuge, B. U. Debadwar
1 CrApeal.479/2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
906 CRIMINAL APPEAL NO.479 OF 2020
APPA S/O. RAMHARI KALE .. Appellant
VERSUS
THE STATE OF MAHARASHTRA AND ANR .. Respondents
...
Advocate for Appellant : Shri Rajendra G. Hange
APP for Respondent No.1 / State : Shri R.V. Dasalkar
Advocate (appointed) for Respondent No.2 : Ms T.V. Jadhav
...
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
Date : 07-10-2020 PER COURT :-
1. The appellant, accused in Crime No.62 of 2020, seeks regular bail. He is alleged to have committed offences punishable under Sections 376 (3), 376 (1) (n), 363 & 366A of the Indian Penal Code and Sections 4, 8, 12 of the Protection of Children from Sexual Offences Act and Section 3 (2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. We have heard the extensive submissions of the learned advocates on behalf of the appellant and on behalf of Respondent no.2 and the learned APP on behalf of the State. With their assistance, we have gone through the record available before us. ::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 06:56:12 ::: 2 CrApeal.479/2020
3. Having considered the entire record and the statements of the victim, her parents, the appellant and his parents, it is obvious that the appellant had fallen in love with the victim who is said to be a minor, having been born on 12-06-2005. On 15-03-2020, the appellant came to the house of the victim when her parents had gone to the Bazar and her brother had gone to the agricultural field. At about 02:00 p.m. she accompanied the appellant, who is about 27 years of age and is unmarried, to Neknoor, on his motorcycle. At about 03:30 p.m. they exchanged garlands and the accused tied a mangalsutra around the neck of the victim in the presence of his friends in an agricultural field. Thereafter, they travelled to Tekwadi, Tal. Parali and the appellant / accused acquired a job with a brick-kiln owner. The owner made arrangement for their stay. They were together for 15 days and, as per the statement of the victim, they had physical relations on all these days. Later on, she started missing her parents and being unable to comprehend as to whether she has acted rightly or has committed a mistake, that she telephoned her mother. The police arrived at the place where the couple was residing and thereafter, the appellant was arrested on 05-04-2020. ::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 06:56:12 ::: 3 CrApeal.479/2020
4. The appellant is behind bars since 05-04-2020. The charge-sheet has been tendered in the Special Court on 02-06-2020. Prima facie we do not find any reason for the detention of the accused in jail.
5. The learned advocate appearing on behalf of the biological guardian (father) of the victim, has strenuously opposed this appeal. She contends that the victim is of a tender and impressionable age and is unable to distinguish between what is morally correct and incorrect. Even if it is said that she has fallen in love with the appellant, she cannot act impulsively and no marriage allegedly solemnized until she is 18 years of age, could be said to be a legal marriage. She places reliance upon Independent Thought Vs. Union of India and Another (2017) 10 SCC 800. She has specifically pointed out para no.1 and 107, which reads thus :
"1. The issue before us is a limited but one of considerable public importance - whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.
The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article ::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 06:56:12 ::: 4 CrApeal.479/2020 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil.
"107........ Therefore, we are left with absolutely no other option but to harmonise the system of laws relating to children and require Exception 2 to Section 375 IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the Framers of our constitution can be preserved and protected and perhaps given impetus."
6. Learned advocate for respondent no.2 further submits that the appellant attempts to meet the victim in the weekly bazar and threatens that he will take the victim with him. If he is released on bail, he would be a threat to the victim.
7. The learned APP submits that, even if the submissions of the appellant would indicate that he is in love with the victim, there cannot be any liberty to the appellant to contact the victim and take her away on the ground that he has allegedly married her.
8. The learned advocate for the appellant submits that the appellant is still serious and desires to have the victim as his legally wedded wife. He is willing to perform all formalities and co-habit ::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 06:56:12 ::: 5 CrApeal.479/2020 with the victim as husband and wife. He canvasses that there is no purpose in keeping the appellant behind bars and he can be released on bail subject to such conditions as this Court may deem appropriate to be imposed upon him.
9. We are of the view that this case has thrown up peculiar facts. If certain conditions are imposed upon the appellant to prevent any contact with the victim or her parents or witnesses, in any form whatsoever, he could be released on bail as there is no purpose behind continuing his detention.
10. In view of the above, this appeal is allowed with the following directions :
(a) The appellant shall be released on bail, in crime arising out of First Information Report No. 62/2020, registered with the Neknoor Police Station, District Beed, dated 02-06-2020 on furnishing P.R. bond of Rs.15,000/- with one surety of the like amount.
(b) The appellant shall not enter the village Pardhi Vasti, Sakhre Borgaon, Tal. & Dist. Beed, until the trial is over.::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 06:56:12 ::: 6 CrApeal.479/2020
(c) He shall mark his attendance with the Neknoor Police Station on every Tuesday, Thursday and Saturday in between 11:00 a.m. to 01:00 pm. His attendance shall be marked by the Station House Officer in the Station Dairy by obtaining his signatures.
(d) He would tender the cellular number, which is registered in his name, to the Station House Officer of Neknoor Police Station.
He shall refrain from contacting the victim, either directly or indirectly and her parents and all such persons who are likely to be witnesses in the said case, until the trial is over.
(e) He shall not attempt to tamper with evidence and influence witnesses.
(f) After the trial commences, he shall attend the case hearing on every date and if such date overlapped his marking of attendance at the Neknoor Police Station, he would be excused from attending the police station only on such dates.
11. Violation of any of the conditions shall be a good ground for cancellation of bail.
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12. Considering that this Court had appointed Ms T.V. Jadhav, learned Advocate on behalf of respondent no.2 and she has exerted for assisting the Court in the best possible manner, her fees are quantified at Rs.5000/- to be paid by the High Court Legal Services Authority, Sub-Committee, Aurangabad.
(B. U. DEBADWAR) (RAVINDRA V. GHUGE)
JUDGE JUDGE
Gajanan
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