Bombay High Court
Kedar Khajappa @ Rajendra Maske vs The State Of Maharashtra And Anr on 13 July, 2022
Author: N.J.Jamadar
Bench: N.J.Jamadar
Digitally signed
SWAROOP by SWAROOP
SHARAD SHARAD PHADKE
PHADKE Date: 2022.07.14
14:32:02 +0530 51 ba 786 of 2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.786 OF 2021
Kedar Khajappa @ Rajendra Maske ... Applicant
versus
State of Maharashtra & Anr. ... Respondents
Mr. Ritesh Thobde with Mr. Sagar Tambe, for Applicant.
Mr. A.A.Palkar, APP, for State.
Ms. Vilasini Balsubramanium, for Respondent No.2.
CORAM : N.J.JAMADAR, J.
RESERVED ON : 29th JUNE, 2022
PRONOUNCED ON : 13th JULY, 2022
P.C.
1. The Applicant, a twenty year old boy, has preferred this Application to
enlarge him on bail.
2. The Applicant has been arraigned in C.R.No.1262 of 2020 registered
with Sadar Bazar Police Station, Solapur, for the offences punishable under Section
363, 366, 376, 376(2)(f ), 376(2)(i), 376(2)(j), 376(2)(n), 323, 506 read with Section 34
of the Indian Penal Code and Sections 4 and 8 of the Protection of Children from
Sexual Offences Act, 2012.
3. The prosecution case runs as under :
The Respondent No.2 - first informant is the mother of victim, who is
16 years of age. On 23rd December, 2019 the first informant had lodged a missing
report at Sadar Bazar Police Station. The victim returned on 26 th December, 2019.
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Thereupon, the first informant had given a statement that the missing report was
lodged on account of misunderstanding and the victim had been to her maternal aunt
at Pune. The true state of affairs was, however, as under :
On 23rd December, 2019 the Applicant had enticed away the victim on
the pretext of solemnizing marriage. He took the victim to his maternal aunt's home
at Kalyan. After a couple of days, the mother and grand mother of the Applicant
brought the Applicant and the victim back to Solapur. A meeting of the community
members was held. Mr. Satish Mane, the then President of the Community, co-
accused No.2, prevailed upon the first informant not to lodge the report as Sumitra,
mother of the Applicant and co-accused No.3, agreed to solemnize the marriage of the
victim with the Applicant after the victim attained majority. Thereupon, the marriage
of the victim was solemnized with the Applicant in accordance with the rites of the
community. The victim stayed with the Applicant and co-accused Sumitra for a
period of three months. On 19th March, 2020 the victim was turned out of the house
of the Applicant. The victim narrated that she was subjected to harassment and the
Applicant had forcible physical relations with her representing that, since they were
married it would be in order. When the first informant approached the Applicant's
mother Sumitra, co-accused No.3; initially she bought time on one or other pretext
and later on the accused No.3 flatly refused to solemnize the marriage of the victim
with the Applicant. Betrothal ceremony of the Applicant with another girl was
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allegedly held. Hence, the first informant lodged a report against the Applicant, his
mother Sumitra and Satish Mane, President of the community.
5. At the outset, it would be relevant to note that both Sumitra and Satish
Mane were ordered to be released on bail in the event of their arrest by this Court.
The Applicant was arrested on 17th August, 2020.
6. The Applicant has preferred this Application asserting that the case of
enticing away the victim from the lawful guardianship of the first informant is not
made out. The victim had eloped with the Applicant out of her own volition as they
were in love. The victim was 16 years of age and had the requisite maturity of
understanding, and she had voluntarily surrendered to the physical desire of the
Applicant out of love for the Applicant. The investigation is complete for all intent
and purpose and no fruitful purpose would thus be served by detaining the Applicant
as an under-trial prisoner.
7. I have heard Mr. Thobde, learned Advocate for the Applicant, Mr.
Palkar, learned APP for the State and Ms. Vilasini Balsubramanium, Counsel
appointed to espouse the cause of Respondent No.2, at some length. With the
assistance of the learned Counsel, I have perused the report under Section 173 of the
Code of Criminal Procedure, 1973 and the documents annexed with it.
8. The learned Advocate for the Applicant would submit that that the
allegations against the Applicant are required to be considered in the context in which
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the victim accompanied the Applicant and returned back to Solapur and that it was
decided to solemnize the marriage of the victim with the Applicant after the victim
attained majority. Moreover, the victim in fact stayed with the Applicant and his
mother for a period of three months. In this backdrop, according to Mr. Thobde, the
offences punishable under Section 363 and 376 of the Indian Penal Code, cannot be
said to have been prima facie made out.
9. Mr. Palkar, learned APP, countered the submissions on behalf of the
Applicant. It was forcefully submitted that the fact that the victim was barely 15 years
of age cannot be lost sight of. Once it is found that the victim was a minor, the
submissions based on the alleged consent of the victim loose significance. Mr. Palkar
would further urge that in the case at hand, there is medical evidence which lends
requisite support to the claim of the victim that she was subjected to sexual
exploitation without her consent. Emphasis was led on the history narrated by the
medical Officer.
10. The learned Counsel for the Respondent No.2 supplemented the
submissions of the learned APP. It was urged with a degree of vehemence that the fact
that the victim stayed with the Applicant for a period of three months is of no
relevance, if considered through the prism of minority of the victim. In the
circumstances, according to Ms. Balasubramanium, the submissions sought to be
canvassed on behalf of the Applicant based on the alleged consent of the victim do not
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deserve countenance.
11. I have carefully perused the statement of the victim recorded on 20 th
August, 2020 and her statement recorded on 8 th September, 2020 by the learned
Magistrate under Section 164 of the Code of Criminal Procedure, 1973. The victim
informed the learned Magistrate that she had known the Applicant since 6 th standard.
They had an affair for about three years. On 22 nd December, 2019 the Applicant
called her near K.R. Photo Studio and therefrom they went to Solapur Railway Station
and reached Kalyan on the next morning. They stayed there for three days. The
mother of the Applicant brought them back to Solapur. A settlement was arrived at in
the presence of the members of the community and it was agreed that the marriage of
the victim would be solemnized with the Applicant after the victim attained majority.
She stayed at the Applicant's house for three months. During the said period, the
Applicant had forcible physical relations with her on 5 to 6 occasions. On 19 th March,
2020, the co-accused Sumitra turned her out of the house of the Applicant.
12. The aforesaid material is required to be appreciated in the light of the
fact that the victim specifically stated that when she was taken to Kalyan and stayed
with the maternal aunt of the Applicant for about three days, the Applicant had not
violated her. It was the mother of the Applicant who brought the Applicant and the
victim back to Solapur. The Applicant and the victim thereafter stayed under one
roof for three months, apparently pursuant to the settlement arrived at in the
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presence of the members of the community. It is during this period, the victim
alleges, the Applicant had her carnal knowledge forcibly. The medical officer has
recorded that the victim claimed that the physical relations were without her consent.
13. Indisputably, the victim was minor when she was allegedly enticed away
and deflowered by the Applicant. The submission based on consent of the victim,
therefore, does not advance the cause of the Applicant. However, the attendant
circumstances cannot be lost sight of. In the case at hand, it seems the victim and the
Applicant were sharing romantic relationship for almost three years prior to the
occurrence. After the Applicant and the victim eloped, they were brought back by the
mother of the Applicant, the accused No.3 herein. It further appears that dispute
arose three months after the victim started to reside with the Applicant. Primarily, it
seems the disputes were between the victim and the accused No.3 Sumitra. The
refusal of the accused No.3 to solemnize the marriage of the Applicant with the victim
seems to have acted as a trigger for lodging the report.
14. The aforesaid factors, in my view, cannot be said to be immaterial or
inconsequential. They appear to be germane while considering the prayer for bail.
Without delving into the aspect as to whether the victim had accompanied the
Applicant out of her own volition and surrendered herself to the physical desire of the
Applicant out of her love and affection, in the case at hand, the aforesaid attendant
circumstances, persuade the Court to lean in favour of exercise of the discretion for
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the reasons more than one. Firstly, the victim and the Applicant shared a romantic
relationship. Secondly, the Applicant was also not more than 19 years of age at the
time of the alleged occurrence. Thirdly, it does not appear that the Applicant acted in
a violent manner and took undue advantage of the vulnerable position of the victim.
This is vouched for by the claim of the victim that when she had initially accompanied
the Applicant to Kalyan, there were no physical relations. Fourthly, the
circumstances manifest intent on the part of the Applicant to maintain bond the with
the victim and thus the victim stayed with the Applicant for three months under one
roof. Fifthly, the said arrangement had an imprimatur of the parents of the victim as
well.
15. I am mindful of the fact that the aforesaid reasons do not constitute
justification for the acts on the part of the Applicant and the co-accused. Nonetheless,
these factors appear to be germane for the determination of the entitlement for bail.
16. For the foregoing reasons, I am impelled to exercise the discretion in
favour of the Applicant. Thus, the following order :
ORDER
(i) The Application stands allowed.
(ii) The Applicant - Kedar Khajappa @ Rajendra Maske, be released on bail on furnishing a PR bond in the sum of Rs.30,000/- and one or two sureties in the like amount to the satisfaction of the learned Special Judge, Solapur. SSP 7/8
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(iii) The Applicant shall not tamper with the prosecution evidence and/or give threat or inducement to the victim, first informant and any other prosecution witnesses.
(iv) The Applicant shall mark his presence at Sadar Bazar Police Station on the first Monday of every alternate month for the period of one year or till the conclusion of the trial, whichever is earlier.
(v) The Applicant shall furnish his permanent address and contact details to the Senior Inspector of Sadar Bazar Police Station and intimate the change, if any.
(vi) By way abundant caution, it is clarified that the observations hereinabove are confined to the consideration of the entitlement for bail and they may not be construed as an expression of opinion on the guilt or otherwise of the applicant and co-accused.
( N.J.JAMADAR, J. ) SSP 8/8