Prakash @ Jaywant Wasudeo Wankhede v. the State of Mah

Bombay HC14 Mar 2012APPLN/955/2012

Case brief

AI extract

What is this about?

In a criminal appeal by the victim and a bail application by the accused grand father convicted under Section 376 IPC, the Division Bench addressed the bail plea. The Bench held that despite the medical evidence and serious allegations involving a child, the submissions required full evidentiary scrutiny during the final hearing. Consequently, the bail application was rejected while expediting the

What did the court decide?

Bail application rejected. Appeal hearing expedited pending final hearing.

Prakash @ Jaywant Wasudeo Wankhede Vs the State of Mah — Bail and Remand | Bombay HC (2012)

¶1

 cra955.12

¶2

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶4

BENCH AT AURANGABAD

¶5

CRIMINAL APPLICATION NO.955 OF 2012 IN CRIMINAL APPEAL NO.117 OF 2012

¶6

Prakash @ Jaywant Wasudeo Wankhede,
Age-63 years, Occu:Goldsmith,
R/o-Laxmi Alankar Gruh, Saraf Bazar,
Main Road, Sakri, Tq-Sakri,
Dist-Dhule.

¶7

...APPLICANT.
 VERSUS

¶8

The State of Maharashtra.

¶9

...RESPONDENT.

¶10

...

¶11

 Shri.C.R. Deshpande Advocate for Applicant.
 Shri.V.D. Rakh, A.P.P. for Respondent.
 Shri. Rajendra S. Deshmukh Advocate to assist
 the P.P.

¶12

...

¶13

CORAM: NARESH H. PATIL AND
 T.V. NALAWADE, JJ.
 DATE : 14TH MARCH, 2012.

¶14

 cra955.12

¶15

¶16

PER COURT :

¶17

1. Heard learned counsel for the parties.

¶18

2.The Applicant is convicted for the
offence punishable under Section 376 read with
Section 511 and Section 506 of the Indian Penal
Code and sentenced to suffer rigorous imprisonment
for five years and to pay fine of Rs.1,000/- in
default to suffer rigorous imprisonment for six
months and further to suffer rigorous imprisonment
for one year and to pay fine of Rs.500/- in
default to suffer further rigorous imprisonment
for three months for the offence under Section 376

¶19

read with Section 511 and Section 506 of the
Indian Penal Code respectively, in Sessions Case
No.160 of 2010, by the Additional Sessions Judge,
Dhule, by Judgment and Order dated 18th February,
2012.

¶20

3.In short, the prosecution is that the

¶21

 cra955.12
3

¶22

victim girl at the age of six years at the
relevant time, had gone to her grand father's

¶23

house during the period from 15th April, 2009 till
3rd May, 2009. On 20th April, 2009 marriage of son

¶24

of the accused, namely, Kamalesh was to be
performed. The offence was committed during this
period when the victim girl stayed in the house of
the Applicant - grand father. The precise
allegation of the prosecution as narrated by the
victim girl in her deposition and ascertained from
other relevant record is, that the Applicant -
grand father used to take the victim girl with him
to make her sleep with him. He used to sleep with
victim and in the night hours he used to cover her

¶25

face with a sheet, remove her under garment,
insert his finger in her private part, apply his
semen on that part and smell of it. The Applicant
used to sit on the thighs of the victim girl and
make some movement. The Applicant threatened the

¶26

girl not to disclose this fact to anybody
otherwise he would hang her to the fan and kill

¶27

 cra955.12
4

¶28

her. Such acts continued as long as the girl
stayed with the Applicant. The victim girl
suffered mental trauma. She did not disclose this
fact to anybody. On 3rd May, 2009, the girl
returned along with her mother to Nashik where her
father was staying. Observing shocking behaviour
of girl, her grand mother suspected and started
questioning the girl. The abnormal behaviour of
the girl was cause for the same. Ultimately the
victim girl revealed what had happened with her,
to the grand mother and thereafter wheels of the
prosecution case started moving. The girl was
examinedbyexperts,medicalofficers,
psychologists, psychiatrists. They found her to be
under mental trauma. They examined her and
recorded their opinions in the medical papers. The
matter was reported to the police and ultimately
charge-sheet came to be filed.

¶29

4.The trial Court acquitted the Applicant

¶30

for the offence punishable under Section 376 of

¶31

 cra955.12
5

¶32

the Indian Penal Code.

¶33

5.The complainant, father of the girl,
deposed against the Applicant and also preferred
separate Appeal against the order of acquittal for
the offence punishable under Section 376 of the
Indian Penal Code. The Appeals filed by the
Applicant and the complainant, have been admitted
by this Court.

¶34

6.The Applicant preferred bail Application
bearing Criminal Application No.955 of 2012. By an
order dated 29th February, 2012, learned Single
Judge of this Court (CORAM: A.M. THIPSAY, J.),
observed that the learned counsel Mr. C.R.
Deshpande appearing for Applicant, has submitted
that he has no objection for expeditious hearing
of the Appeal and that he be permitted to supply
private paper book by 12th March, 2012. The Court
accordingly, granted the permission. The Court
further observed that the Appeal as well as the

¶35

 cra955.12
6

¶36

bail Application would be listed on 13th March,
2012, with the understanding that the Appeal
itself may be taken up for hearing on that day if
private paper book would be ready by that time.
The Appeal filed by the victim girl through her
father, came to be admitted by the Division Bench
of this Court on 5th March, 2012. Both the
Appeals, i.e. Appeals filed by the Applicant and
the victim, are therefore, to be heard by the
Division Bench of this Court.

¶37

7.Shri. Deshpande, learned counsel prayed

¶38

for bail as the Application for bail was still
pending. We have, therefore, heard the learned
counsel on the said Application.

¶39

8.We have perused the original Record and
Proceedings.

¶40

9.In substance, it is the submission of the
learned counsel that no offence is made out for

¶41

 cra955.12
7

¶42

convicting and sentencing the Applicant for the
offence punishable under Section 376 read with
Section 511 and Section 506 of the Indian Penal
Code, neither there could be evidence to convict

¶43

the Applicant for an offence punishable under
Section 376 of the Indian Penal Code by reversing
the order of acquittal. The girl was examined by
the Psychiatrist in the month of June, 2009 and
thereafter she was clinically examined by the
medical officer. There being sufficient gap
between the alleged incident and the clinical
examination of the girl, the endorsement made by
the medical officer about her physical condition,
hymen being ruptured, swelling on private part and

¶44

other details could not be connected to the
allegations of the alleged act of the Applicant
for which he was convicted and sentenced. In the

¶45

facts of the case, according to the counsel, the
girl was tutored by her grand mother to depose
against her grand father. There is no evidence to
show that the Applicant - grand father committed

¶46

 cra955.12
8

¶47

rape. Assuming but not admitting, the learned
counsel submits that evidence of the prosecution
would suggest an offence under Section 354 of the
Indian Penal Code. The mother of the girl was not
examined, which shows that she was not supporting
the prosecution. The incident of alleged indecent
behaviour of grand father, according to the
counsel, was not disclosed by the girl to her
mother, which is material circumstance. The

¶48

learned counsel submitted that this being case of
short sentence, bail deserves to be granted. The
learned counsel further submitted that considering
the fact that Applicant is old person of about 63
years of age and was on bail during the trial, the
Applicant be released on bail.

¶49

10.In support of his submissions, the

¶50

learned counsel for the Applicant placed reliance
on the following reported Judgments:

¶51

 cra955.12

¶52

¶53

M.P., 2001 A.I.R. S.C.W., 5130,

¶54

(2) Radhu vs. State of M.P.,
2007 A.I.R. S.C.W., 5845,

¶55

(3) Balwan Singh vs. State of
Haryana, 1994 CRI. L.J., 2810,

¶56

(4) Sakshi vs. Union of India
and others, A.I.R. 2004 S.C.,
3566,

¶57

(5) Aman Kumar and another vs.
State of Haryana, 2004(2)
Crimes, 66, S.C.

¶58

11.The learned A.P.P. opposed the bail

¶59

Application by submitting that shocking facts have

¶60

been revealed by the tender girl of six years of

¶61

age, who gathered courage to depose against her
grand father. It cannot be ruled out that such an

¶62

incident is not possible at all. There is ample
evidence against the Applicant. The trial Court,

¶63

after thorough examination of the evidence, had

¶64

held the Applicant guilty. In the submissions of

¶65

 cra955.12
10

¶66

learned A.P.P. the evidence of the victim girl
cannot be discarded lightly at this stage, to
disbelieve her that incident must not have
happened in the manner in which she described
before the trial Court.

¶67

12.We have considered the submissions
advanced, perused the Judgments cited before us.
We have perused the medical papers, depositions of

¶68

the victim girl, father of the girl and other
material evidence.

¶69

13.We find that whatever the victim girl
stated before the trial Court, was highly
disturbing and shocking, but sentiments would not

¶70

take place of proof. The prosecution will have to
establish its case beyond reasonable doubt. The

¶71

trial Court considered the evidence before it and

¶72

reached conclusions to convict the Applicant for
the offence punishable under Section 376 read with
Section 511 and Section 506 of the Indian Penal

¶73

 cra955.12
11

¶74

Code. The trial Court acquitted the Applicant for
the offence punishable under Section 376 of the
Indian Penal Code. The Appeal filed by the victim
through her father, against the acquittal for the
offence under Section 376 of the Indian Penal
Code, has been admitted by this Court.

¶75

14.The submissions advanced on behalf of the
Applicant requires closure scrutiny, scanning and
appreciation of evidence, which could be done at
the time of final hearing of the Appeal. We do not
find that at this stage, all these issues are
required to be gone into. In such cases, evidence
of victim girl assumes vital significance.

¶76

15.Considering the earlier order passed by
the learned Single Judge of this Court and the
fact that the paper book has already been prepared
and submitted, we find that considering the
evidence brought on record, this is not a fit case
to release the Applicant on bail. The Application

¶77

 cra955.12
12

¶78

is rejected. However, hearing of the Appeal is
expedited. The Registry to verify as to whether
paper book has been filed in accordance with the
rules and certify the same. Liberty to the
Applicant to move for final hearing, at an
appropriate stage. There are about 4 Jail Appeals
of the year 2010, which are already listed before
this Court for final hearing. Jail Appeals of the
year 2011, are also listed before this Court for
final hearing.

¶79

[T.V. NALAWADE,J.] [NARESH H. PATIL,J.]
asb/MAR12

Prakash @ Jaywant Wasudeo Wankhede v. the State of Mah

Case brief

What is this about?

What did the court decide?

Prakash @ Jaywant Wasudeo Wankhede v. the State of Mah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sajeda Begum Md. Fasiyoddin Alias Parvez Siddiqui Vs the State of Mah and Ors.

Liladhar Latkan Sapkale Vs the State of Mah

Haribhau Satwaji Jogdand and Others. Vs State of Maharashtra.

Jivan @ Devendra Nathu Chalase (Kasar), C.No. 8894, Nsk Road Central Prison Vs the State of Mah

The Police Inspector Chavni Ps Aurangabad and Ors. Vs Nadeem Mohd Azmatullah Razaullah

The State of Maharashtra Vs Shahajan Ali Yawar Ali Mirza and Ors.