High Court
Legal Reasoning
{1} 22 CriAppln No.3772.2023IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 3772 OF 2023 Ramrao S/o Khubaji RathodAge : 51 years, Occ. ServiceR/o. Vaishnavi Nivas, Jalna Road, Shindkhed, Tq. Sindhkhed Raja,Dist. Buldhana …. ApplicantVERSUS1.The State of MaharashtraThrough Investigation Officer,MIDC Waluj Police Station,Aurangabad, Tq. and Dist. Aurangabad2. XYZ … Respondents...Advocate for Applicant : Mr. P. P. More h/f Mr. S. P. RathodAPP for Respondent No. 1-State : Mr. A. D. Wange Advocate for Respondent No. 2 : Mr. G. J. Pahilwan...WITHCRIMINAL APPLICATION NO. 3773 OF 20231. Himmat S/o Vachhu Rathod,Age : 49 years, Occ. Agril,R/o. Pimparkheda Bk, Tq. Sindkhed Raja,Dist. Buldhana2. Kavita W/o Himmat Rathod,Age : 46 years, Occ. Agril,R/o. As above3. Ashivini D/o Himmat RathodAge : 32 years, Occ. Private Service,
Legal Reasoning
{2} 22 CriAppln No.3772.2023R/o. Chorpangra, Bibim Tq. LonarDist. Buldhana4. Swati D/o Himmat Rathod,Age : 26 years, Occ. Private Service,At Present R/o. House No. 2593/3, Alandi,Devachi, Near Kidz Paradise School, Kale Colony, Alandi Rural Pune…. ApplicantsVERSUS1.The State of MaharashtraThrough Investigation Officer,MIDC Waluj Police Station,Aurangabad, Tq. and Dist. Aurangabad2. XYZ … Respondents…..Advocate for Applicants : Mr. P. P. More h/f Mr. S. P. RathodAPP for Respondent No. 1-State : Mr. A. D. Wange Advocate for Respondent No. 2 : Mr. G. J. Pahilwan.…. CORAM : SMT. VIBHA KANKANWADI AND MANJUSHA DESHPANDE, JJ. DATE : 15th APRIL, 2025PER COURT :1.Both the applications arise out of the same matter. Allthe applicants are the original accused persons in FIR vide CR No.490 of 2023 registered with MIDC Waluj Police Station,Aurangabad. Later on, amendment has been carried out and now,applicants are praying for quashment of the proceedings in Special {3} 22 CriAppln No.3772.2023Case No. 413 of 2023 pending before Special (POCSO) Judge /District Judge-8 and Additional Sessions Judge, Aurangabad for theoffences punishable under Sections 363, 366A, 376(2)(n) and 506read with 34 of Indian Penal Code (hereinafter “IPC” for short)alongwith Sections 4, 6, 8 and 12 of Protection of Children FromSexual Offences Act, 2012 (hereinafter “POCSO Act” for short).2.Heard learned Advocate appearing for the applicants,learned APP for respondent No. 1-State and learned Advocate forrespondent No. 2.3.Learned Advocate appearing for the applicants hastaken us through the FIR and the entire charge-sheet. He submitsthat the FIR was initially lodged only under Section 363 of IPC bythe brother of the victim. The incident is alleged to have takenplace regarding offence under Section 363 of IPC on 13.06.2023and later on, as per the charge-sheet, the victim and the originalaccused No. 1 returned on 05.08.2023. Thereafter, the statement ofvictim as well as the statement of the informant – brother wasrecorded on 06.08.2023 and thereafter, later sections came to beadded. Perusal of these two main statements would show that thegirl was minor but it appears that, it was the love-affair betweenher and original accused No. 1. However, as regards the present {4} 22 CriAppln No.3772.2023applicants are concerned, the applicants in Criminal Application No.3773 of 2023 are the parents of the boy and his married sisterswhereas the applicant in Criminal Application No. 3772 of 2023appears to be the distant relative. The role attributed to him is thathe had left the victim and the original accused No. 1 to MiraBhayandar, Dist. Thane from Buldhana.4.Taking into consideration especially the statement ofvictim, it can be said that no specific role has been attracted to thepresent applicants. Even as regards applicant Ramrao is concerned,there is no evidence on record that he had knowledge that victim isminor and she was kidnapped by original accused No. 1. In thesupplementary statement, the informant has tried to assign certainroles to each of the applicant but no such statement is appearing inthe statement of victim. Though there are other statements fromthe witnesses of Mira Bhayandar, Dist. Thane and other witnessesstating that the victim and the boy were residing as husband andwife, certainly at that place, there was no role for the applicantsand therefore, it can be an abuse of process of law to ask theapplicants to face the trial.5.Per contra, learned APP as well as learned Advocate {5} 22 CriAppln No.3772.2023appearing for the respondent No. 2 strongly opposes the applicationand submitted that the evidence that has been collected in thecharge-sheet is sufficient for framing charge and proceed with thematter. Let the trial be held for that purpose. The applicants hadthe knowledge that the victim has been kidnapped and then shewas forced to marry with the original accused No. 1. Later on,original accused No. 1 has sexually abused the victim. Therefore,taking into consideration the seriousness of the matter, this will notbe the fit case where this Court should exercise the powers underSection 482 of CrPC.6.Here, in the present case, as aforesaid, the informant isthe brother of the victim who had initially given the FIR for theoffence under Section 363 of IPC. Therefore, whatever incidentshad happened after 13.06.2023 till the boy and the girl returnedi.e. on 05.08.2023, it was only within the knowledge of the girl andtherefore, her statement is important. When the entire investigationis over and the evidence has been placed on record, then it wouldbe the job of this Court to consider the material that has beenproduced in the charge-sheet.7.Perusal of the statement of victim recorded underSection 161 of CrPC would show that she got acquaintance with the {6} 22 CriAppln No.3772.2023original accused No. 1 who was residing adjacent to her house.Then, the accused No. 1 had expressed his feelings about the victimto her. According to her, she was forcibly taken by accused No. 1 on13.06.2023. Though she says that the original accused No. 1 hadtaken her to his house at Pimparkhed, Tq. Sindhkheda, Dist.Buldhana, and they had stayed for a night in the house and then hetook her to Thane. Now, in her statement, she has not given detailsabout how she was introduced to the parents and whether themarried sisters of the boy were present at that time. She has thenstated that she was taken by bus to Thane and kept in the house ofa lady who was known to the accused No. 1. They stayed there forabout one and half month and then she was brought to AlandiDevachi, Dist. Pune on 02.08.2023. She then says that she wasforced to perform registered marriage against her wish with originalaccused No. 1 and thereafter, they went to applicant No. 4 – sister.She says that on that night, there was forcible sexual intercourseby the accused No. 1 with her. She was kept for two days there andthen she was taken to Kingaon Raja, Dist. Buldhana on 04.08.2023.where they reached on 05.08.2023 in the morning. Thus, it is to benoted that in her entire statement under Section 161 of CrPC, shedoes not say that she had talked the applicants and expressedanything that has done against her wish or she had disclosed her {7} 22 CriAppln No.3772.2023age to them.8.The supplementary statement of the informant appearsto be on the basis what the victim had told to him but thatinformation is not given by the victim in her statement underSection 161 of CrPC. There are statements of other witnessesincluding the mother which can be seen to be dependent on whatthe victim had disclosed to them. The statements of landlord andland-lady where the boy and the girl had resided at Kashmira, Dist.Thane would show that the victim and the boy had introducedthemselves as husband and wife. Thus, there is a fact of‘knowledge’ that is required to be considered. Though the copy ofstatement of the victim under Section 164 of CrPC is not madeavailable yet. We expect that it should be in consonance with herstatement under Section 161 of CrPC but if there are improvementsand contradictions then it would be another point available toaccused persons.9.Therefore, taking into consideration the statement ofvictim reocrded under Section 161 of CrPC, no role has beenattributed to the present applicants and therefore, it would beharassment or futile exercise to ask the applicants to face the trial.Therefore, this is a fit case where we should exercise our powers {8} 22 CriAppln No.3772.2023under Section 482 of CrPC. Hence, we proceed to pass followingorder :ORDER1.Both the applications i.e. Criminal Application No.3772 of 2023 and Criminal Application No. 3773 of2023 stand allowed. 2.The proceedings in Special Case No. 413 of 2023pending before Special (POCSO) Judge / DistrictJudge – 8 and Additional Sessions Judge,Aurangabad arising out of FIR vide CR No. 490 of2023 registered with MIDC Waluj Police Station,Aurangabad for the offences punishable underSections 363, 366A, 376(2)(n) and 506 read with 34of IPC alongwith Sections 4, 6, 8 and 12 of POCSOAct stands quashed and set aside as againstapplicants i.e. Ramrao Khubaji Rathod (applicant inCriminal Application No. 3772 of 2023) andapplicant No. 1 Himmat S/o Vachhu Rathod, No. 2Kavita W/o Himmat Rathod, No. 3 Ashvini D/oHimmat Rathod and No. 4 Swati D/o Himmat Rathod(applicants in Cri. Appln. No. 3773 of 2023). [MANJUSHA DESHPANDE] [SMT. VIBHA KANKANWADI] JUDGE JUDGE Omkar Joshi