Mr. Vishal A. Bagdiya, Advocate for v. M. Jaware, APP for

Legal Reasoning

-1- BA.2104.2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO. 2104 OF 2024Mukesh S/o Mohan Rawal, Age : 21 years, Occu. : Labour, R/o. : Gopalpura, Tq. Bhojpura,Dist. Bhilwada, State - Rajasthan, Presently residing at Dongaon Road, Lasur Station, Tq. Gangapur, Dist. Chhatrapati Sambhajinagar… ApplicantVersus1.The State of Maharashtra, Through Sillegaon Police Station, Tq. Gangapur, Dist. Chhatrapati Sambhajinagar2.X.Y.Z.… Respondents……Mr. Vishal A. Bagdiya, Advocate for Applicant. Mr. V. M. Jaware, APP for Respondent- State.Mr. Sandip Andhale, Advocate for Respondent No.2 (Appointedthrough Legal Aid)....… CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 02 APRIL 2025PRONOUNCED ON : 03 APRIL 2025ORDER : 1.Present applicant seeks regular bail on account of hisarrest in Crime No.237 of 2024 registered at Sillegaon PoliceStation, Tq. Gangapur, Dist. Aurangabad for offences punishableunder sections 376, 376(3), 366(A), 363 of Indian Penal Code andsections 4, 6, 8 and 12 of POCSO Act. -2- BA.2104.20242.Learned counsel for applicant pointed out that,information by father of the victim who is 15 years and 10 monthsold and as such on the verge of attaining majority. Apparently,there was love relations. According to learned counsel, storynarrated by victim is unbelievable, as according to him, it is notpossible to have sexual intercourse while traveling along withother passengers in one bus. He pointed out that, medical report donot suggest any history or injury. According to him, though girl issaid to be 15 years of age, learned counsel emphasized that, thereis no date of birth certificate in the charge sheet, rather schoolextract, which is not even of first school of the admission whereshe allegedly took admission, is gathered. Therefore, according tohim, even there is no concrete evidence about victim to be a minor.Lastly he submitted that, investigation is over and charge sheet isfiled in September 2024 itself. According to him, when there is nofurther recovery or discovery is to be made and when medicalexamination is also got done, his further custody is unwarrantedand as applicant is ready to abide all and any conditions imposedby this court, learned counsel urges for grant of bail. 3.Learned APP as well as learned counsel appointed toprotect the interest of informant have both opposed on the ground -3- BA.2104.2024that victim is a minor. That, there are serious allegations of rape.According to learned APP, medical opinion is received aboutpossibility of sexual assault. According to learned counsel,informant and victim herself has given statement that she wasforcibly taken. That, moreover applicant is of Rajasthan and solearned counsel expresses apprehension of misuse of liberty. Onabove counts, application is opposed. 4.Perused the papers. Father reported that on23.06.2024, his daughter aged 15 years, who studied in 10thstandard, went to market for purchase of school bag, but she didnot return and therefore, he lodged missing report.5.Statement of victim girl is recorded, but on 27.06.2024i.e. after three days of FIR by father. She has reported that, onemonth back she went to eat ice-cream on a cart near HDFC bank inthe vicinity of Lasur railway station. She got acquainted with ice-cream seller i.e. present applicant and she claims that theiracquittance grew into love relations and they started calling eachother on mobile. According to her, applicant offered to marry herafter taking her to his native at Rajasthan and keep her happy, butshe claimed to have refused as her parents would not agree andshe is yet to achieve 18 years of age. But, he even offered to -4- BA.2104.2024approach her parents to seek her hand for marriage and wasmaking necessary preparations for marriage. She further reported that, on 23.06.2024 getting upsetwith her mother for not giving Rs.500/- for purchase of a bag, sheleft the house and alone went and sat near railway station road.She even claims to have seen her sister and mother towards theweekly bazar for purchasing bag for her, but she did not approachand talk with them. She further reported that, around 6:30 p.m., while shewas on the road, near Nutan Vidyalaya in the vicinity of railwaystation, applicant came there on motorcycle and questioned her forsitting alone and she told him that in anger she has left the houseand thereafter he again offered her to accompany him to his nativeand then she claims that he forcibly made her sit on themotorcycle, took her to the travel agency and as they did not getticket to travel to Surat, they purchased ticket to go to Surat viaMumbai and then she claims that while in the journey against herwish, he forcibly have physical relations with her, saying that, nowthey are going to get marriage. According to her, on 24.06.2024they reached Mumbai and from there reached to Surat and whenthey went to house of sister of applicant, his sister and brother-in- -5- BA.2104.2024law asked her to go back to her parents. She claims that, as she wasafraid of her parents, she suggested that she be dropped at hermaternal uncle’s place at Buldhana and accordingly applicantallegedly dropped her there. Her parents were informed, they cameand she accompanied them to police station.6.Learned counsel for applicant submits that, there waslong acquaintance and love relations. He emphasized that, victimhas herself left the house under guardianship of her parents andshe was not kidnapped. Moreover, he also questions her age asaccording to him school extract gathered by investigatingmachinery is not of the first school where she got admitted. He alsoquestions the offence of rape as according to him it is impossible tocommit forcible act in journey in a travel bus occupied by others. 7.Learned APP as well as learned counsel for informanthave opposed on the ground that victim being below 18 years,offence does get attract. They also apprehend misuse of libertybecause applicant being from Rajasthan. 8.After going through the FIR and more particularlystatement of victim, it does emerge that, victim has left the housein anger on her own accord. Her statement shows that, while she -6- BA.2104.2024was sitting alone on the road, applicant had by chance met herthere. Her statement does not show that he had called her. Thoughit seems that he forcibly made her on the motorcycle to go to traveloffice, prima facie it appears that she joined him without anyresistance. She also seems to have agreed to accompany him toSurat and was with him while booking was done to go to Surat viaMumbai. Her statement is that, in the journey in travel busapplicant had physical relations with her against her wish.Whether such act is possible or not cannot be gone into at thisstage in a bail application. However, her statement shows that,subsequently, when sister of applicant asked her to go back, shechose to go back to her maternal uncle at Buldhana andaccordingly applicant himself has dropped her there and fromthere her parents seems to have come to pick her up.9.As submitted, there is no birth certificate andinvestigating machinery has gathered school admission extracthaving date of birth, but admission is of July 2015 and it is not thefirst school where she took admission for the first time.10.Therefore, taking above material into considerationand as now charge sheet is filed and no further recovery anddiscovery is shown to be made, apprehension of misuse of liberty -7- BA.2104.2024can be taken care of by imposing stringent conditions. Hence, thefollowing order is passed :- ORDERI.The application is allowed.II.Applicant Mukesh S/o Mohan Rawal be released on bail inconnection with Crime No.237 of 2024 registered with SillegaonPolice Station, Tq. Gangapur, Dist. Aurangabad, on executingPersonal Bond of Rs. 15,000/- with one surety in the like amount,on the following conditions:[a]The applicant shall not tamper prosecution evidence.[b]The applicant shall not enter the vicinity where theinformant and her family members reside and where she isstudying, till conclusion of trial.[c]The applicant shall not leave the area of jurisdiction ofthe concerned police station till conclusion of trial.[d]The applicant shall attend the concerned police stationtwice in every week i.e. on every Monday and Thursday andmaintain personal diary of his attendance till framing of chargeand thereafter, shall regularly attend each and every effective datebefore the trial court. (ABHAY S. WAGHWASE, J.) M.R. Tandale