XYZ v. The State of Maharashtra

1. The State of Maharashtra Through Police Inspector, Police Station, Otur, Tq. Junner, Dist. Pune.

2. ABC...RESPONDENTS... Ms. Lata Patne a/w. Mr. Vinod Joshi, Mr. K.B. Jadhav, Advocate for Appellant. Ms. Priyanka Chavan, Appointed Advocate for Respondent No. 2. Mr. K.V. Saste, APP for Respondent No. 1-State.... CORAM: S. S. SHINDE & M.S. KARNIK, JJ. DATE: DECEMBER 21, 2020.

JUDGMENT [PER S.S. SHINDE, J.]

1. Admit. On admission, learned APP waives service of notice on behalf of Respondent No. 1-State and Advocate Ms. Priyanka Chavan for Respondent No. 2.

2. At the outset it is required to be noted that since the allegations against the Appellant are in respect of the alleged sexual assault, the identity of the Appellant and the informant needs to be concealed and accordingly the Bhagyawant Punde Vishwanath

Appellant is referred to as ‘XYZ’ and Respondent No. 2 is referred to as ‘ABC’. The Registry is directed to maintain the record accordingly.

3. In the aforesaid appeal this court had issued notices to the respondents on 28th July 2020 which were made returnable on 25th August

2020. Thereafter, the appeal was listed time to time, however, none appeared for Respondent No. 2. Therefore on 15th December 2020, this Court appointed Advocate Ms. Priyanka Chavan to represent the Respondent No. 2.

4. Today the appeal is taken up for hearing. Learned counsel appearing for the appellant invites our attention to the allegations in the FIR and submits that the said allegations are not correct. The witnesses whose statements are recorded, which is part of the charge sheet, are relatives of the informant. Therefore, no implicit reliance can be placed on their statements. It is submitted that the alleged offences as stated in the FIR have never taken place. There was no question of promise by the appellant to the victim girl that he will marry with her. Even if it is assumed that the alleged act had taken place, the victim girl was consenting party and the appellant and victim stayed together as husband and wife. There is no medical evidence supporting the case of the prosecution. There is inordinate delay in lodging the FIR. The appellant had no any criminal antecedents. There are no any specific allegations which would attract ingredients of an alleged offences, therefore the appellant deserves to be released on bail.

5. On the other hand, learned APP appearing for Respondent-State invites our attention to the allegations in the FIR and also charge sheet and submits that, there is sufficient material collected during the course of investigation which would prima facie indicate the guilt of the appellant, therefore, the prayer of the appeallant to release him on bail may be turned down.

6. Ms. Priyanka Chavan, learned counsel appearing for Respondent No. 2 invites our attention to the allegations in the FIR and submits that the allegations in the FIR would make it clear that the alleged sexual assault had taken place against the will of the victim. The appellant did use force in commission of alleged sexual offence. The age of the victim at the relevant time was 14 years and 10 months, and therefore, she was minor. Since the victim girl was minor, the question of giving consent by her would not arise. She was not competent in law to give consent. Learned counsel invites our attention to the charge sheet and its accompaniments and submits that the witnesses have categorically stated about the manner in which the victim was taken from the custody of her parents to the unknown place by the appellant and sexual assault was committed against her will. Learned counsel also submits that the victim girl belongs to Scheduled Tribe. It is submitted that the witnesses are residing in the same village and vicinity, and in case the appellant is released on bail there is every possibility of tampering with the prosecution evidence and witnesses, and therefore, the appellant may not be released on bail. Learned counsel invites our attention to the statements of witnesses and other material collected during the course of investigation and submits that the appeal may be dismissed.

7. We have given due consideration to the submissions of the learned counsel appearing for the appellant, learned APP appearing for Respondent-State and learned counsel for Respondent No. 2. With their able assistance we have carefully perused the grounds taken in the appeal memo, annexures thereto, allegations in the FIR and charge sheet and its accompaniments. There is overwhelming evidence collected by the prosecution about the alleged involvement of the appellant in commission of very serious offence. Prima facie it is noticed that the victim is minor girl below 15 years. In view of the statement of the victim, so also, statements of other witnesses and other material collected during the course of investigation, prima facie involvement of the appellant in the commission of alleged offence has been disclosed. The offence alleged is serious in nature which has impact upon the society. The alleged sexual assault on minor girl cannot be countenanced. If the appellant is released on bail, there is likelihood of tampering with the prosecution witnesses and evidence, therefore, we are not inclined to entertain the appeal filed by the appellant and to release him on bail. We do not wish to elaborate the reasons, since the appellant will have to face trial. Any further elaboration on the evidence would cause prejudice to the case of the parties. Suffice it to say that, prima facie involvement of the appellant in the alleged commission of offence has been disclosed and therefore, the appeal deserves no consideration. Hence, the appeal stands dismissed.

8. The observations made herein above are prima facie in nature and confined to the adjudication of the appeal. The concerned Special Court shall expedite the hearing of the appeal and take it to the logical end and pronounce the final judgment and order as expeditiously as possible, however, within one year from today.

9. We appreciate the sincere efforts taken by Ms. Priyanka Chavan in rendering able and effective assistance during the course of hearing of the appeal. We quantify Rs. 7500/- towards her professional fees and expenses, to be disbursed within four weeks from receipt of the copy of this order.