Bombay High Court
Mohammad Ashfaq Lal Mohammad Momin vs The State Of Maharashtra on 8 November, 2019
Author: Sandeep K. Shinde
Bench: Sandeep. K. Shinde
3.BA.2074-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 2074 OF 2019
Mohammad Ashfaq Lal Mohammad Momin ...Applicant
Versus
The State of Maharashtra ...Respondent
...
Ms. Anjali Patil, Advocate for the Applicant.
Mr. Y.M. Nakhawa, A.P.P. for the Respondent-State.
...
CORAM : SANDEEP. K. SHINDE, J.
DATE : 07th NOVEMBER 2019.
P.C.
This is an application under Section 439 of Code of
Criminal Procedure, 1973 ('Cr.P.C.' for short) in C.R.
no. 76 of 2019 registered with Shivajinagar Police
Station for the offences punishable under Section 376
of the Indian Penal Code, 1860 r/w Section 4 and 8 of
Protection of Children from Sexual Offences Act, 2012
('POCSO' for short).
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2. Applicant came to be arrested on 25.03.2019.
3. Heard learned counsel for the applicant and
learned A.P.P. for the State.
4. The subject crime came to be registered on a
complaint by the mother of Victim. Victim is a 11 years
old girl. The date of the alleged incident is
25.03.2019 at place known as Samosa garden and a room
abutting thereto. It appears from the complaint that
the victim was found in the room abutted to the Samosa
Garden with her boyfriend, Alam. Victim and Alam were
found indulging into obscene acts in the said room. It
appears one Rizwan Qureshi and the present applicant
had noticed the victim and her boyfriend were
indulging into obscene acts. They objected thereto
and said, they would report it to their parents. The
statement of Rizwan has been recorded on 25.03.2019.
5. In the complaint, the mother admits that daughter
was in the company of her boyfriend. Infact victim
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also admits, that she was in company of Alam and were
indulging into obscene acts. However, the victim in
her statement alleged that the present applicant
taking disadvantage of the situation, being found in
the company of Alam committed the aggravated sexual
assault on her.
6. Learned counsel for the applicant has taken me
through statement of Rizwan, wherein he stated; having
noticed, the victim and her boyfriend were indulging
into obscene acts, he and the applicant objected
thereto and told victim that they would report the
incident to her parents.
7. Complainant was sent for medical examination on
25.03.2019. She narrated altogether a different story
to Doctor; wherein she omitted the presence of Alam and
alleged the Rizwan and the present applicant outraged
her modesty and committed aggravated sexual assault in
the room abutting to the Samosa garden. I have gone
through the medical reports and the history narrated
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by the victim to the Doctor.
8. Learned APP was called upon to explain this
material contradiction in the complaint and the
history narrated by the victim to the Doctor. However
contradiction has not sorted-out. Infact, the boy-
friend Alam of the victim as it appears is not
available for the interrogation.
9. Thus, taking into consideration the material on
record and in particular, the history narrated by the
victim to the Doctor, prima-facie, the allegations
against the applicant are no free from shadow of doubt.
It is informed that there are no criminal antecedents
against present applicant.
10. The applicant is in the custody since 25.03.2019.
The charge-sheet has been filed. The trial is not
likely to commence in near furture. Thus, considering
the facts of the case, the application is allowed.
Applicant is directed to be released on the bail on the
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following conditions.
ORDER
(i) The applicant is directed to be enlarged on bail on executing P.R. Bond in the sum of Rs.25,000/- with one or more sureties in the like amount;
(ii) The applicant shall attend the concerned Police Station twice a month in a week commencing from the 18th November 2019 on each Wednesday in between 10:00 a.m. to 11:00 a.m. for six months;
(iii) The applicant shall inform particulars of his residence and mobile contact number and/or change of residence or mobile details, if any, from time to time to the Court seized of the matter and to the Investigating Officer of the concerned Police Station;
(iv) The applicant to cooperate with the Najeeb 5/7 ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 03:55:29 :::
3.BA.2074-19.doc conduct of the trial and attend all the dates before the trial Court, unless exempted;
(v) The applicant shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case;
(vi) If there are two consecutive defaults either in attending the Police Station, or breach of any of the aforesaid conditions, the prosecution shall be at liberty to seek cancellation of the applicant's bail.
9. The application is allowed in the aforesaid terms and is accordingly disposed of.
10. It is made clear that the observations made herein are prima facie, and the trial Court shall decide the case on its own merits, in accordance with law, uninfluenced by the observations made in this Najeeb 6/7 ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 03:55:29 :::
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11. All concerned to act on the authenticated copy of this order.
(Sandeep K. Shinde, J.) Najeeb 7/7 ::: Uploaded on - 08/11/2019 ::: Downloaded on - 09/11/2019 03:55:29 :::