Bombay High Court
Vinod Vitthal Chaudhari vs The State Of Maharashtra on 5 February, 2019
Author: K.K. Sonawane
Bench: K.K. Sonawane
{1}
943 sr.no..odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
943 CRIMINAL APPEAL NO.938 OF 2018
VINOD VITTHAL CHAUDHARI
VERSUS
THE STATE OF MAHARASHTRA AND ANR
...
Advocate for Appellant : Mr. N.L. Choudhari
APP for Respondent No.1: Mrs. D.S. Jape.
Adv. for respondent No.2 : Mr. M.V. Thorat.
CORAM : K.K. SONAWANE, J.
RESERVED ON: 1ST FEBRUARY, 2019.
PRONOUNCED ON : 5TH FEBRUARY, 2019.
PER COURT:-
1. The appellant has preferred the present appeal, invoking the remedy under Section 14-A of the Scheduled Tastes and Scheduled Tribes (Prevention of Atrocities) Act and agitated the legality as well as propriety of the order dated 13.12.2018 passed by the learned Special Judge,Nandurbar in Bail Application No. 294 of 2018, whereby the application filed by the appellant/accused to admit him on bail has been rejected.
2. It has been alleged that the first informant Sau. Meena Govardhan Panpatil, approached to the police of Upanagar Police Station, Nandurbar, on 27.11.2018 and lodged report that she was residing in Holarwadi Area of Nandurbar town, with her 8 year old ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 03:30:38 ::: {2} 943 sr.no..odt minor daughter and other members of the family. They all belong to Mahar community. The appellant/accused was running Soda Water Shop near the house of the first informant Meena Panpatil. According to prosecution, on 27.11.2018 when the first informant returned to home, that time she saw that her minor daughter was weeping and on enquiry, her friend - Laxmi disclosed that the appellant/accused, after giving chocklate, used to press the breast of the victim. The first informant grumbled that there was pain at the chest of the minor daughter since Diwali festival. After due enquiry, the minor victim also disclosed that, when she was playing with her friend Laxmi under the Tin Shed near the house, the appellant arrived near her, pressed the breast and went away. There were allegations about the sexual assault on the minor victim by the appellant. Pursuant to the FIR, the police of Upanagar Police Station, registered the Crime No. 209 of 2018 under Section 354 of IPC and sections 7 and 8 of the Protection of Children from Sexual Offences Act, as well as, Section 3(i)(w) of the SC and ST (Prevention of Atrocities) Act and set the criminal law in motion against the appellant.
3. The I.O. apprehended the accused/appellant for the sake of investigation. I.O. also availed the custodial interrogation of the appellant/accused and thereafter, he was remanded to judicial custody. I.O. recorded statements of the witnesses acquainted with the facts of the case. I.O. collected the Medical Certificate as well ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 03:30:38 ::: {3} 943 sr.no..odt as caste certificate of the accused and minor victim of the crime.
The investigation is in progress.
4. Pending investigation, the appellant/accused moved an application under Section 439 of the Cr.P.C. to admit him on bail pending investigation. The learned Special Judge, Nandurbar, considered the factual aspects and circumstances on record. The learned Special Judge found reluctant to enlarge the applicant/accused on bail. Eventually, the learned Special Judge rejected the application for bail of the appellant/accused and passed the impugned order, which is the subject matter of present appeal.
5. The learned counsel for the appellant vehemently submitted that the appellant/accused is innocent and the allegations levelled against him are false and baseless. He has not committed any crime. He has been falsely implicated in this case. The I.O. has already availed the opportunity of custodial interrogation of the accused. The investigation of the crime is already at the stage of completion. It is not essential to keep the appellant/accused behind bars for the sake of investigation as well as proposed trial. The appellant is a 44 year's old matured person. He was running a Soda Water shop in the area of the residence of first informant. There were cross complainants filed by the party of first informant and accused against each other on account of political rivalry. The appellant has an landed property within the precincts of Nandurbar town. There is no possibility of ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 03:30:38 ::: {4} 943 sr.no..odt absconding of accused as well as tampering with evidence of the prosecution witnesses. The appellant is ready to abide by the conditions, if any, imposed on him for bail. Therefore, the learned counsel prayed to admit the appellant on bail in Crime No. 209 of 2018, registered at Upanagar Police Station, Nandurbar.
6. The learned APP and the learned counsel for the first informant, vociferously opposed the contentions put forth on behalf of the appellant/accused and submits that the allegations nurtured against the appellant are serious and anti-social in nature. He attempted to sexually abuse and assault the minor victim girl of 8 years by repeatedly pressing her breast. The investigation is in progress. There is a possibility of tampering with the evidence at the hands of accused. Therefore, learned APP and learned counsel for respondent No.2 requested, not to nod in favour of the appellant.
7. It is an admitted fact that all the family members of the first informant are acquainted with the appellant accused, as he was running a shop of Soda Water nearby their house. It is not denied that the appellant is a 44 years old matured person and the victim girl was 8 years old at the time of the alleged incident. The learned APP produced the investigation papers for perusal of this court. On perusal of the same, it reflects that the I.O. has recorded statements of most of the witnesses acquainted with the facts of the case. It is ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 03:30:38 ::: {5} 943 sr.no..odt true that the I.O. recorded the statements of the minor victim girl and her friend Laxmi. No doubt, both of them blamed the accused for the act of sexual assault by pressing the breast of minor victim daughter of the first informant. But, the mode and manner in which the statement of minor witnesses are recorded under Section 162 of Cr.P.C. in 'question-answer form', prima-facie render the credibility of version doubtful and suspicious one. The I.O. preferred to put leading questions to the minor witnesses for which they had given answers in affirmative form. Therefore, at this juncture, prima facie, it would unsafe to act upon the version of minor witnesses to curtail the liberty of the appellant/accused.
8. It is also strange to appreciate that when the victim girl and her friend Laxmi were playing under the tin shed near the house of appellant, on all occasions the accused/appellant ventured to molest the minor victim daughter of the first informant only but he did not make any attempt of sexual assault on her friend Laxmi to slack his urges. The circumstances adumbrate that in case the appellant/accused had an ill-intention of molestation of minor girls, he would have not spared the minor girl Laxmi also, who was 9 years old, i.e. elder than the minor victim girl. It is not clear from record, as to why the appellant targeted the daughter of first informant and pressed her breast when she was playing with her friend Laxmi in the tin shed near the house of appellant. Moreover, the medical certificate did not reflect any sort of injury, abrasions, swelling etc. ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 03:30:38 ::: {6} 943 sr.no..odt on the breast of the minor victim. In such circumstances, possibility of prompting or tutoring the minor witnesses cannot be ruled out. But, all these circumstances are required to be considered on the anvil of merit, during the course of trial.
9. Be that as it may, it is to be noted that the I.O. has already availed the opportunity of custodial interrogation of the appellant/accused. The investigation is on the verge of completion. There is no propriety to keep the appellant/accused behind bars for the sake of investigation or trial. It is a settled rule of law, that there should not be any pre-conviction incarceration by way of punishment. In regard to apprehension of tampering with the prosecution witnesses during the course of investigation and trial, the suitable conditions can be imposed to safeguard the interest of the prosecution.
10. Moreover, it cannot be ignored that the appellant is 44 years old matured businessman. He was running the shop of selling Soda Water in the area of the first informant. He has an landed property within the precincts of Nandurbar town. Therefore, there is no possibility of absconding of the accused. Definitely, the charges levelled against the accused are serious and anti-social in nature, but it does not mean that the valuable right of liberty of the appellant guaranteed constitutionally under Article 21, should be curtailed for ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 03:30:38 ::: {7} 943 sr.no..odt the sake of investigation and trial. In such circumstances, there is no impediment to allow the appeal.
11. Accordingly, the appeal stands allowed. The impugned order of rejection of bail application passed by the learned Special Judge, Nandurbar dated 13.12.2018 is hereby quashed and set aside. The appellant/accused be released on bail on his furnishing PR Bond in the sum of Rs. 25,000/- (twenty five thousand) with one solvent surety of like amount. The appellant/accused shall not directly or indirectly indulge in the activities of tampering with the evidence of prosecution witnesses and shall not leave the jurisdiction of learned trial court, without its prior permission. The appellant/accused shall secure his presence before the concerned I.O. when called, for the sake of investigation. Appellant to furnish bail before the learned trial court.
12. In sequel, the appeal stands allowed in above terms and disposed of accordingly. No orders as to costs.
[K.K.SONAWANE, J] grt/-
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