Bombay High Court
Faizan Wahid Baig vs The State Of Maharashtra on 15 November, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3372 OF 2021
Faizan Wahid Baig .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr. Mateen Shaikh with Muskan Shaikh for the applicant.
Mr.Rushikesh R. Chavan for respondent no.2.
Mrs.A.A.Takalkar, APP for the State.
PSI Anil Pawar from Ghatkopar police station.
CORAM: BHARATI DANGRE, J.
DATED : 15th NOVEMBER, 2022
P.C:-
1 The applicant came to be arrested on 29/4/2021
when the victim girl lodged a complaint against him accusing him
of committing offence punishable u/s.363, 376, 506 of IPC and
Sections 4, 8, and 12 of the POCSO Act. Admittedly, the age of
the victim girl on the date when the incident took place was 15
years 4 months and she is a minor. At the relevant time, the
applicant is little about 21 years.
With the able assistance of the counsel for the
applicant, the learned counsel for the complainant and the
learned APP, I have perused the charge-sheet.
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2 The Investigating Machinery was set into motion on a
complaint filed by the mother of the victim girl who was
informed by her daughter about an incident which took place on
6/4/2021, when she had accompanied the applicant to Govandi
on the pretext of meeting his aunt and when she was not at home,
he forcibly committed sexual intercourse with her against her
wishes and consent.
3 The statement of the victim girl came to be recorded
on 29/4/2021, where she admitted that she was known to the
applicant who was residing in their neighborhood and for last two
months, she was close to him and had developed a love
relationship. She narrated about the incident dated 6/4/2021
when she accompanied the applicant to Govandi by informing
her family members that she was going to a friend's house for
attending an online class. When she accompanied the applicant
to her aunt's house, he informed her that she was not present at
home and they would wait for her to come back. It is then
alleged that he committed forcible sexual intercourse with her and
also threatened her not to disclose the said incident to anyone and
she returned home along with him. However, on 29/4/2021,
when her sister caught her chatting on the Whatsapp, she
disclosed the incident to her family members. The statement of
the victim girl is also recorded u/s.164 of Cr.P.C.
4 During the course of investigation, the statement of
the aunt of the applicant to whom, according to the prosecution,
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the complainant was forced to visit and where the alleged incident
had taken place is recorded. She has stated to the police that on
6/4/2021, she was visited by her sister's son from Ghatkopar and
he inquired with her whether she would permit entry for his
girlfriend in the house, but she shouted at him. After that, she
went to the market by leaving her daughter aged 6 years to the
house and when she returned at 5'O clock to find her nephew in
the company of the girl, she shewed them away immediately.
5 The medical examination refer to tear at 3'O clock,
which apparently, establish that there was physical indulgence.
The medical opinion in Column no.25 also refer to a hymenal
tear which co-relate with the history narrated by her of sexual
violence/assault without her consent by her boy friend.
6 Taking an overall view of the material compiled in the
charge-sheet, it appears that the applicant though minor, was
capable of understanding the consequences of her act and she
voluntarily accompanied the applicant to her aunt's place.
Though she is a minor and her consent become immaterial, in a
case like this, where she voluntarily joined the company of the
applicant, and she had categorically admitted that she was in love
with the applicant, whether that she consented for the sexual
intercourse or not, is the matter of evidence. Till what point of
time, she accompanied the applicant and whether she resisted the
actual physical indulgence, when according to her, the applicant
forcibly committed sexual intercourse with her against her wishes,
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will have to be determined. In any case, the prosecutrix/victim
kept quiet till her Whatsapp chat with the applicant was objected
to, by the family members and then she narrated the incident
which was alleged to have taken place on 6/4/2020. The time
gap between these two events is also crucial as it was always open
for the prosecutrix to disclose the aunt about the forcible act if it
was committed in her house, but she continued to remain silent
and disclosed the incident only when an objection was taken for
she establishing contact with the applicant.
7 In the aforesaid circumstances and particularly, when
the applicant is also a young boy, the possibility of he also smitten
by infatuation, cannot be ruled out and though he may take the
consequences of the accusations levelled against him, at present,
he need not be further incarcerated being arrested on 29/4/2021,
when the trial may consume considerable time.
This is however, subject to the stipulation that he
shall, in no way establish contact with the prosecutrix and shall
move himself along with the family from the area where the
prosecutrix is residing and shall not enter in no way make any
attempt to establish contact with him, either physically or
virtually.
Observations made above are prima facie in nature
and limited for the purpose of adjudication of the present
application, and shall in no way, bind the Sessions Judge while he
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is trying the applicant for the offence with which he is charged.
8 I would like to place on record the appreciation for
Advocate Rushikesh Chavan who has ably assisted this Court on
being appointed as a Legal Aid, and the Legal Services Authority
shall make over the remuneration to him within a period of four
weeks from today.
ORDER
(a) The Applicant - Raizan Wahid Baig in connection with C.R.No.261/2021 registered with Ghatkopar Police Station shall be released on bail on furnishing P.R. bond to the extent of Rs.25,000/- with one or two sureties of the like amount.
The applicant shall be released on provisional cash bail of Rs.25,000/- in lieu of sureties for a period of six weeks. During the said period, the applicant shall arrange for the sureties.
(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 the applicant should not tamper with evidence.
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(c) The applicant shall not establish any contact with the prosecutrix and shall move himself along with the family from the area where the prosecutrix is residing and shall not enter in no way make any attempt to establish contact with him, either physically or virtually.
(d) The applicant shall attend the Ghatkopar Police station on first Saturday of every trimester between 3.00 p.m to 5.00 p.m. The Applicant shall attend the trial on regular basis.
(e) On being released on bail, the applicant shall furnish his contact number and residential address to the Investigating Officer and shall keep him updated, if there is any change.
The Application is allowed in the aforestated terms.
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