Bombay High Court
Kiran Prakash Renke vs State Of Maharashtra And Anr on 8 May, 2024
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2024:BHC-AS:22099
507-BA-1936-2023 (O).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.1936 OF 2023
Kiran Prakash Renke ...Applicant
Versus
The State of Maharashtra & Anr. ...Respondents
_______________________________________________________________
Mr. Abhay Arun Jadhavar, for Applicant.
Mr. P. P. Deokar, APP, for Respondent No.1-State.
Ms. Savvy Kolhekar, for Respondent No.2.
_______________________________________________________________
CORAM: MADHAV J. JAMDAR, J.
DATED: 08th MAY 2024
P. C.
1. Heard Mr. Jadhavar, learned Counsel for the Applicant, Mr.
Deokar, learned APP for the Respondent No.1-State and Ms. Kolhekar,
learned Counsel appointed to represent the interests of Respondent
No.2.
2. This regular Bail Application is preferred under Section 439 of
the Code of Criminal Procedure, 1973. The relevant details are as
follows:
1 C.R. No. 767 of 2021
2 Date of registration of F.I.R. 19/12/2021
3 Name of Police Station Khed, District-Pune
4 Sections invoked 363, 376(2)(j) & (n) & 376(3) of
the I.P.C., 1860;
4, 8 & 12 of the POCSO Act, 2012.
5 Date of incident 19/12/2021
6 Date of arrest 31/01/2022
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7 Date of filing Charge-sheet 29/03/2022
3. As per the prosecution case, the Applicant is the maternal uncle
of the victim. Initially, F.I.R. was lodged for the offence punishable
Section 363 of the Indian Penal Code, 1860 ("IPC") on 19th December
2021 as the victim was not found at her house. Various statements
recorded during the investigation show that the Applicant and the
victim had gone to Shirdi. They got married to each other in a temple.
They were residing together at Baramati from 20th December 2021 till
31st January 2022. As per the prosecution case, during said period, the
Applicant had physical and sexual relations with the victim. At the
relevant time, the age of the victim was 13 years and 4 months and the
age of the Applicant was 23 years.
4. It is the contention of Mr. Jadhavar, learned Counsel for the
Applicant that in fact it was the victim who had insisted the Applicant
that they should get married as her family members were in the process
of arranging her marriage with someone else and therefore on the
insistence of the victim, the Applicant and the victim eloped and got
married. He submitted that the Applicant was arrested on 31st January
2022, investigation has been completed and Charge-sheet has been filed
on 29th March 2022. Till date, there is no progress in the trial and even
the charge is also not framed. He relied on the decision of a learned
Single Judge of this Court [Nagpur Bench] dated 5th January 2024
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passed in the Criminal Application (BA) No.718 of 2023 in the case of
Nitin Damodar Dhaberao v. State of Maharashtra 1
and more
particularly on paragraph No.6 thereof. He also relied on the decision of
a learned Single Judge of this Court dated 8th October 2018 passed in
Bail Application No.2615 of 2018 in the case of Ramchandra Sambhaji
Sonawane v. State of Maharashtra 2 and more particularly on paragraph
No.4 thereof. He also relied on the decision of this Court dated 27th
February 2024 passed in Bail Application No.1518 of 2023 in the case of
Ganesh Dyandev Jadhav v. State of Maharashtra 3 and particularly on
paragraph Nos.5, 6, and 7 thereof. He submitted that the Applicant is a
young man aged 23 years and his entire life will be adversly affected if
he is not enlarged on bail. He therefore submitted that the Bail
Application be allowed.
5. On the other hand, Mr. Deokar, learned APP and Ms. Kolhekar,
learned Counsel appointed to represent the interest of Respondent No.2
strongly opposed the Bail Application. They submitted that at the
relevant time, age of the victim was only 13 years and 4 months and
therefore her consent is totally irrelevant in law. Both of them submitted
that the statement of the victim dated 31st January 2022 as well as her
statement recorded under Section 164 of the CrPC clearly show that the
Applicant had physical relations with the victim. Both of them
1 2024 SCC OnLine Bom 120
2 2018:BHC-AS:28143
3 2024:BHC-AS:9365
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submitted that the medical evidence is in consonance with the
prosecution case. They submitted that the Applicant and the victim are
close relatives and therefore the Applicant should have refrained from
committing the offence in question. Both of them submitted that the
punishment for the offence in question is very severe and therefore the
Applicant be not enlarged on bail.
6. Ms. Kolhekar, learned Counsel appointed to represent the interest
of Respondent No.2 submitted a written note regarding Sections
invoked and the punishment for the same. She submitted that the
minimum punishment for the offences under Sections 4 and 6 of the
Protection of Children from Sexual Offences Act, 2012 ("POCSO Act") is
imprisonment for not less than 20 years. She submitted that even the
punishment for the offences under Section 376, 376(2)(j), (n) and
376(3) of the Indian Penal Code, 1860 ("IPC") is also imprisonment not
less than 10 years. She therefore submitted that the Bail Application be
rejected. She also relied on the decision of the Supreme Court in the
case of Satish Kumar Jayanti Lal Dabgar v. State of Gujarat 4 and
submitted that consent of the victim is entirely irrelevant. She relied on
paragraph Nos.14 and 15 of Dabgar (Supra). She also relied on the
decision of the Supreme Court in the case of X (Minor) v. State of
Jharkhand 5 dated 21.02.2022 passed in Criminal Appeal No.263 of
4 (2015) 7 SCC 359
5 2022 LiveLaw (SC) 194
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2022.
7. Perusal of the record shows that the incident in question took
place between 19th December 2021 and 31st January 2022. Initially,
F.I.R. was lodged only under Section 363 of IPC on 19th December 2021
and thereafter Sections 376(2)(j)(n) and 376(3) of IPC and Sections 12
of the POCSO Act were invoked. The Applicant was arrested on 31st
January 2022 and the Charge-sheet has been filed on 29th March 2022.
As per the Charge-sheet, there are a total of 16 witnesses proposed to
be examined by the prosecution and till date there is no progress in the
trial and even the charge is also not framed. Thus, the trial will take a
considerably long time to conclude.
8. It is significant to note the statement of the victim before the
learned Judicial Magistrate First Class, Khed-Rajgurunagar, District-
Pune under Section 163 of CrPC, which reads as under:
ßeh izfrKkiqoZd dFku djrs dh] eh ikcGjksM] jktxq:uxj [ksM ;sFks jkgrs- ?kjh
ek>s vkbZ & oMhy] eksBh cfg.k vkf.k ygku HkkÅ vlrkr- ek>s f'k{k.k 6
oh Ik;Zar >kys vkgs- eh 19@12@2021 jksth ldkGh 7-00 P;k njE;ku [ksM
o:u f'kMhZyk xsyh- vkjksih fdj.k jsuds ek>k l[[kk ekek vkgs- rs ekÖ;k ?kjh
;k;ps o vkEgh Ik.k R;kP;k ?kjh tk;pks- ?kVusP;k 7&8 efgU;k vxksnj vkeps
isze laca/k lq: >kys- eyk rs vkoMrkr vls ehp R;kauk lkafxrys R;kdfjrk rs
eyk Qksu djk;ps R;kaps yXu >kys vlY;keqGs rs ukgh Eg.kk;ps o rq ygku
vkgs vls i.k eyk lkaxk;ps Ik.k eh r;kj uOgrh vkf.k R;kauk Qksu djk;ph-
njE;ku ek÷;k yXuklkBh eyk ikgq.ks c?kk;yk ;k;ps- eyk yXu djk;ps uOgrs
Eg.kqu ?kVusP;k 5&6 fnolk vxksnj eh vkjksih fdj.k ;kauk lkafxrys dh] eyk
yXu djk;ps ukgh o vki.k iGwu tkow- R;kauh eyk ek>s o; 18 o"ksZ iw.kZ
ulY;keqGs eyk ukgh EgVys i.k eh R;kauk tkow vls EgVys- rlsp ek>s o;
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18 o"ksZ iw.kZ >kY;kuarj dksVZ eWjst d: vls EgVys- rsOgk rs udks Eg.kr
vlrkaukgh eh R;kauk tkow vls EgVys o fn-19@12@2021 jksth vkEgh tk;ps
Bjfoys- R;kizek.ks eh fn- 19@12@2021 jksth ldkGh 7-00 P;k njE;ku
[ksM o:u f'kMhZyk xsyh- frFks vkEgh ,d fnol ykWtoj jkfgyks- nqlÚ;k fno'kh
vkEgh ckjkerhyk xsyks o frFks HkkM;kus :e dsyh o efgukHkj frFks jkfgyks-
R;kuarj iksyhlkauh vkEgkyk [ksMyk vk.kys ;k njE;ku vkEgh f'kMhZyk Fkkacysyks
vlrkauk eafnjkr yXu dsys R;kaurj vkeP;k e/;s nks?kkaP;k ethZus 'kfjjhd laca/k
ns[khy >kys-Þ
(Emphasis added)
English translation of the same is as follows:
"I reside at Pabal road, Rajgurunagar, Khed. My family
consists of my parents, elder sister and younger brother. I
have studied up to 6th Standard. On the date 19.12.2021, at
around 07.00 a.m., I went to Shirdi from Khed. The Accused
Kiran Renake is my real maternal uncle. He used to visit our
house and even we used to visit his house. Before 7-8 months
prior to the incident, we fell in love with each other and I
myself told him that I liked him. Therefore, he used to
telephone me. But, as he was married, he used to say 'No' and
used to convince me by saying that I was minor. But I was not
ready to accept his say and used to telephone him. During the
said period, my family used to get proposals for my marriage
and the relatives from the said families used to visit our house
to see me. But, as I did not want to get married, 5-6 days
prior to the incident, I told the Accused Kiran that I did not
want to get married and that we would elope. But as I had
not completed 18 years of age, he refused to do so but I
insisted him to elope and told him that we would do 'Court
marriage' after I complete 18 years of my age. At that time,
despite his saying as 'No', I told him that we would elope and
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decided to elope on the date 19.12.2021. Accordingly, on the
date 19.12.2021 at around 7.00 a.m., I went to Shirdi from
Khed and we stayed there at one Lodge for one day. On the
next day, we went to Baramati and hired a room and stayed
there for a month. Thereafter, the Police brought us to Khed.
While we stayed at Shirdi during that period, we got married
in one temple and thereafter, we had physical relations
between us with the consent of both of us."
9. Thus, it is clear that this is a case where the victim was insisting
that both of them i.e. the victim and the Applicant should enter into a
relatiosnhip and get married. In fact, the Applicant told her that he is
already married. The victim is a minor. It is required to be noted that
the Applicant is the maternal uncle of the victim and therefore the
victim was completely aware about the fact that the Applicant is
married. In fact, in her statement dated 31st January 2022 (Page 44)
the victim has specifically stated that the Applicant is married and is
having a 2 years old daughter, however, as there was a dispute between
the Applicant and his wife, the wife was residing at her parent's house.
10. It is also required to note the medical history as recorded by the
Doctors (Page 89). The same clearly shows that the relations were
consensual.
11. Learned Counsel for the Applicant has relied on Nitin Damodar
Dhaberao (supra) and more particularly on paragraph No.6 thereof
which reads as under:
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"6. Having heard learned Counsel for the applicant and
learned APP for the State. Perused the investigation papers.
There is no dispute as to the fact that applicant is arrested on
30.08.2020 and there is no progress in the trial though
charge-sheet is filed on 26.10.2020. As far as merit is
concerned, admittedly victim is of 13 years of age and her
consent is not relevant. However, the statements which are
recorded by the Investigation Officer shows that victim has
left her house at her own accord on the pretext of bringing
the book from friend and not returned back at home. She also
joined the company of the present applicant and also
admitted her love relationship with the present applicant in
her statement. From her statement it reveals that, she stayed
along with the present applicant at various places and not
made any grievance as she was taken by the present applicant
by using some force. Thus it is apparent that, out of the love
affair, she joined the company of the present applicant. The
applicant is also of a tender age of 26 years and out of love
affair they come together. It seems that, the alleged incident
of sexual relationship is out of the attraction between the two
young persons and it is not the case that applicant has
subjected the victim for a sexual assault out of lust.
Considering the fact that, though charge-sheet is filed long
back in the year 2020 and there is no progress in the trial and
trial will take its own time for final disposal. In view of that,
further incarceration of the present applicant is not required
and no purpose will be served by keeping him behind bar. In
view of that, the application deserves to be allowed by
imposing certain conditions."
12. He has also relied on Ramchandra Sonawane (Supra) and more
particularly on paragraph No.4 thereof, which reads as under:
"4. Be that as it may, it is seen that the charge sheet has
already been filed. The presence of the Applicant is therefore
not required in custody for the purpose of investigation or
interrogation. The Applicant is a young boy in his early 20's.
He is in custody since 14.9.2017. Detaining him further is
likely to bring him in contact with other criminals which may
turn him into a hardened criminal."
13. He has also relied on Ganesh Jadhav (supra) and particular on
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paragraph No.5 thereof, which reads as under:
"5. Perusal of the record shows that the offence was
registered on 13th September 2022, the Applicant was
arrested on 16th September 2022 and Charge-sheet was filed
on 9th November 2022. Till date, there is no progress in the
trial.
6. The trial is likely to take a considerably long time.
7. Perusal of the statement recorded under Section 164
Cr.P.C., 1973 shows that the victim has not supported the case
of the prosecution. Even the medical evidence also does not
support the case of the prosecution. The apprehension that
the Applicant will influence the prosecution witnesses and
pressurise them can be taken care of by imposing stringent
conditions."
14. Thus, although it is correct that as the victim was aged only 13
years and 4 months, her consent was totally irrelevant, however, the
statement of the victim recorded under Section 164 of CrPC as well as
the F.I.R. lodged by her mother clearly show that the victim had left the
house on her own volition and owing to the said relationship, both, the
Applicant and the victim lived together. A learned Single Judge in
Damodar Dhaberao (supra) held that the incident of sexual relationship
arises out of the attraction between two young persons and it is not the
case that Applicant has subjected the victim to sexual assault out of lust.
The reasoning given in Ramchandra Sonawane (supra) and Ganesh
Jadhav (supra) as set out herein above, is also applicable to the facts of
the present case.
15. As far as the decision in the case of Satish Dabgar (supra) on
which Ms. Kolhekar, learned Counsel appointed to represent the interest
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of Respondent No.2 has relied, paragraph Nos.14 and 15 thereof are
relevant. The said paragraph Nos.14 and 15 read as under:-
"14. The first thing which is to be borne in mind is that the
prosecutrix was less than 16 years of age. On this fact, clause
sixthly of Section 375 IPC would get attracted making her
consent for sexual intercourse as immaterial and
inconsequential. It reads as follows:
"375. Rape.--A man is said to commit 'rape' who, except
in the case hereinafter excepted, has sexual intercourse
with a woman under circumstances falling under any of the
six following descriptions--
* * *
Sixthly.--With or without her consent, when she is under
sixteen years of age.
Explanation.--Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape."
15. The legislature has introduced the aforesaid provision
with sound rationale and there is an important objective
behind such a provision. It is considered that a minor is
incapable of thinking rationally and giving any consent. For
this reason, whether it is civil law or criminal law, the consent
of a minor is not treated as valid consent. Here the provision
is concerning a girl child who is not only minor but less than
16 years of age. A minor girl can be easily lured into giving
consent for such an act without understanding the
implications thereof. Such a consent, therefore, is treated as
not an informed consent given after understanding the pros
and cons as well as consequences of the intended action.
Therefore, as a necessary corollary, duty is cast on the other
person in not taking advantage of the so-called consent given
by a girl who is less than 16 years of age. Even when there is
a consent of a girl below 16 years, the other partner in the
sexual act is treated as criminal who has committed the
offence of rape. The law leaves no choice to him and he
cannot plead that the act was consensual. A fortiori, the so-
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called consent of the prosecutrix below 16 years of age
cannot be treated as mitigating circumstance."
16. However, it is to be noted that the decision of the Supreme Court
in Satish Dabgar (Supra) was after conviction. In the said case, the
learned Trial Court had convicted the said Applicant and the same was
confirmed with some modification by the High Court. The Supreme
Court confirmed the said conviction. Thus, Satish Dabgar (Supra) will
have no relevance in the facts of the present case as this is a Bail
Application and the point involved is whether in the facts and
circumstances the Applicant is entitled for bail.
17. It is true that the age of the victim was about 13 years and 4
months and her consent is totally irrelevant and inconsequential. It is
also true that, as held in Satish Dabgar (supra), a minor girl can easily
be lured into giving consent for such an act without understanding the
implications thereof. Such a consent, therefore, is treated as not an
informed consent given after understanding the pros and cons as well as
consequences of the intended action. Therefore, as a necessary
corollary, a duty is cast on the other person in not taking advantage of
the so-called consent given by a girl who is less than 16 years of age.
18. However, the factual position in the present case as reflected in
the statement of the victim recorded under Section 164 of the CrPC is
that the Applicant was in fact opposing the proposal of the victim that
the Applicant and the victim should elope. In fact, it is at the instance of
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the victim the Applicant took her to Shirdi and thereafter both of them
stayed at Baramati. Section 164 of CrPC statement of the victim clearly
shows that the family members of the victim were in the process of
arranging the marriage of the victim with someone else and therefore as
per the insistance of the victim both of them eloped. Therefore, the
observations in Satish Dabgar (supra) are not applicable to the present
case.
19. Ms. Kolhekar, has relied on X (Minor) (supra). However, it is to
be noted that the Applicant in that case, had lodged an F.I.R. on 27th
January 2021, allegations in the F.I.R. are that when the said Appellant
was a minor, the Accused had taken her to a residential hotel and had
entered into a sexual relationship on the assurance of marrying her. The
Accused later refused to marry her and that he had sent certain obscene
videos to her father. As the Anticipatory Bail was rejected, the Accused
surrendered on 3rd April 2021. The Charge-sheet was submitted on
24th May 2021. The High Court allowed the Bail Application by Order
dated 2/3 August 2021. In the above context, the Supreme Court while
setting aside the Order granting bail has held as follows:
"6. The High Court was manifestly in error in allowing
the application for bail. The reason that from the statement
under Section 164 and the averments in the FIR, it appears
that "there was a love affair" between the appellant and the
second respondent and that the case was instituted on the
refusal of the second respondent to marry the appellant, is
specious. Once, prima facie, it appears from the material
before the Court that the appellant was barely thirteen years
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of age on the date when the alleged offence took place, both
the grounds, namely that "there was a love affair" between
the appellant and the second respondent as well as the
alleged refusal to marry, are circumstances which will have no
bearing on the grant of bail. Having regard to the age of the
prosecutrix and the nature and gravity of the crime, no case
for the grant of bail was established. The order of the High
Court granting bail has to be interfered with since the
circumstances which prevailed with the High Court are
extraneous in view of the age of the prosecutrix, having
regard to the provisions of Section 376 of IPC and Section 6
of POCSO."
The Supreme Court has stated that having regard to the age of the
prosecutrix and the nature and gravity of the crime, no case for the
grant of bail was established.
20. In the present case, although it is true that the age of the victim
was 13 years and 4 months, however, this is a case where the victim
herself was insisting to elope as mentioned in the statement recorded
under Section 164 of CrPC. Apart from that it is also important to note
that the victim took the said steps as her family members were in the
process of arranging her marriage with someone else. Thus, the facts in
X (Minor) (supra) are different from the factual position in the present
case.
21. The Applicant is young man aged 23 years.
22. The Applicant does not have any criminal antecedents.
23. The Applicant does not appear to be at risk of flight.
24. Accordingly, the Applicant can be enlarged on bail by imposing
conditions.
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25. In view thereof, the following order:
ORDER
(a) The Applicant - Kiran Prakash Renke be released on bail in connection with C.R. No.767 of 2021 registered with the Khed Police Station, District - Pune on his furnishing P.R. Bond of Rs.25,000/- with one or two local solvent sureties in the like amount.
(b) The Applicant shall not enter the Taluka - Khed, District -
Pune after being released on bail, except for reporting to the Investigating Officer, if called, and for attending the trial.
(c) On being released on bail, the Applicant shall furnish his cell phone number and residential address to the Investigating Officer and shall keep the same updated, in case of any change thereto.
(d) The Applicant shall report to the Junnar Police Station, District - Pune once every week i.e. on every Sunday between 11.00 a.m. and 1.00 p.m. till the conclusion of the trial. The Police Inspector of Junnar Police Station, District - Pune to communicate details thereof to the Investigating Officer.
(e) The Applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade such a person from disclosing the facts to the Court or to any Police personnel.
(f) The Applicant shall not tamper with the prosecution evidence and shall not contact or influence the Complainant or any witness in any manner.
(g) The Applicant shall attend the trial regularly. The Applicant shall co-operate with the Trial Court and shall not seek unnecessary adjournments thereat.
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(h) The Applicant shall surrender his passport, if any, to the Investigating Officer.
26. The Bail Application is disposed of accordingly.
27. It is clarified that the Trial Court shall decide the case on its merits, uninfluenced by the prima facie observations made in this Order.
28. This Court places on record its appreciation for the assistance rendered by Ms. Savvy Kolhekar, learned Counsel appointed to represent the interest of Respondent No.2. Professional charges be paid to her as per rules and her name be included on the Panel of Advocates of the High Court Legal Services Committee, Mumbai.
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