Allowed

Mohd Alip Mohd Sayed Shaikh @ Alif v. the State of Maharashtra

Bombay HC15 Nov 2014BA/2342/2014

Case brief

AI extract

What is this about?

High Court allowed second bail application of accused in POCSO and IPC substantive offence. Court relied on co-accused release, FIR variance, and mother's paroli statement, releasing bail on conditions.

What did the court decide?

Released on bail on furnishing P.R. Bond of Rs.15,000/- with one or two sureties in like amount.

Mohd Alip Mohd Sayed Shaikh @ Alif Vs the State… — Child Sexual Offences (POCSO) | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO. 2342 OF 2014

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Mohd. Alip Mohd. Sayed Shaikh @ Alif ...Applicant Versus The State of Maharashtra ...Respondents

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Mr. Santosh M. Deshpande for the Applicant

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Mr. H. J. Dedhia, A.P.P. for the Respondent-State

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CORAM:- REVATI MOHITE DERE, J. DATED :- NOVEMBER 15, 2014

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P.C.

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Heard learned Counsel for the parties.

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This is the second bail application preferred by the applicant

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seeking his enlargement on bail in connection with C.R No. 259/2013 registered with the Kandivli Police Station for the alleged offences

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punishable under Sections 366, 376(d) of the Indian Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act,

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Vide order dated 6^th May, 2014, this Court had rejected the applicant's application for bail on merits.

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The learned Counsel for the applicant contended that there is a change of circumstance and that this Court can consider the second application for bail in view of the fact that this Court (Coram : Sadhana S. Jadhav, J.) had granted bail to the co-accused Amir @ Faizal Nasim Khan. He submitted that Amir @ Faizal Naseem Khan despite being named in the supplementary statements and despite the fact that he was identified in the identification parade, has been enlarged on bail by this Court vide order dated 26^th September, 2014. He contended that the present applicant stands on a better footing than that of the co-accused Amir @ Faizal Khan, inasmuch as, the applicant has not been named either in the FIR dated 23^rd September, 2013 nor in any of the subsequent statements dated 4.10.2013, 5.10.2013, 8.10.2013, 10.10.2013 and 21.10.2013. He submitted that the applicant was arrested on 28^th October, 2013 only on suspicion, though no description of any of the co-accused was spelt out in any of the supplementary statements of the complainant. A perusal of the chargesheet shows that the complainant, in her first statement i.e. the FIR dated

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23^rd September, 2013, had lodged a complaint as against one Arman Shaikh. It was contended in the FIR by the prosecutrix that Arman Shaikh had sexually exploited her on several occasions on the assurance that he would marry her. Thereafter, in the supplementary statement dated 4^th October, 2013, the prosecutrix has stated that she had lied that the name of the person was Arman Shaikh. In the said supplementary statement dated 4^th October, 2013, the prosecutrix has named one Mohammed Sajid Shaikh as being the person who had allegedly committed forcible sexual intercourse with her. Apart from the name of Sajid, she had also named Faizal, Arman, Mannan, Shahenshah and five others. According to the prosecutrix, all these were Sajid's friends and had contacted her through Sajid. She has further stated that she obliged Sajid's friends as they gave him money for the same. It is pertinent to note, that in the FIR as well as in the first supplementary statement dated 4^th October, 2013, there is variance as to when the prosecutrix arrived in Mumbai and the place where she resided during the said period. Thereafter, in the second supplementary statement dated 5^th October, 2013, the prosecutrix has stated that she had lied about Mohammed Sajid Shaikh and that she had never come to Mumbai with any person by the name Mohammed Sajid Shaikh. In the

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said supplementary statement, she has stated that she had come to Mumbai from Calcutta and had stayed on the Kurla Station platform for about two weeks. She has stated that at that time, three persons came and picked her up from the said station and took her to a nearby hutment and committed forcible intercourse on her. In the said statement, she has named one Faizal, co-accused (who has been released on bail) along with five others. Thereafter, in the third supplementary statement dated 8^th October, 2013, she has again stated that she had lied in her earlier statement and that she had lied on account of fear. In the said supplementary statement, she has stated that two boys came in a Qualis jeep, stopped the jeep near her and after making inquiries, took her to a forest in Ganesh Nagar. Thereafter, co-accused Faizal had taken her to one room and had committed forcible intercourse on her and thereafter, his friends also ravished her. In the fourth supplementary statement dated 10^th October, 2013, the prosecutrix again changed her version and stated that the boy who was driving the Qualis ravished her. She has further stated that she came near a lake where she saw Faizal and stopped him and asked him as to why he was not visiting her. Faizal is alleged to have disclosed to her that he was at his home and that in fact, it was she who had fled away. Faizal then offered her

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rice to eat. Thereafter, at about 10 p.m., Faizal came to the prosecutrix on a motorbike and gave the prosecutrix a pant and T-shirt, after which he did not return. The last supplementary statement of the prosecutrix dated 21^st November, 2013 was recorded after the test identification parade. In the said identification parade, all the accused including the applicant had been identified.

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Perused the statement of Jamila Begum, the mother of the prosecutrix and the other relevant statements. The mother has specifically stated in her statement that the prosecutrix was speaking a lie. She has stated that being enraged with the fact, that the prosecutrix's father had reprimanded and assaulted her, she had left the house.

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It is also pertinent to note the report of the doctor dated 24^th September, 2013. The prosecutrix was referred to the Grand Medical College for examination where the doctor had recorded the statement of the prosecutrix. The doctor in his statement has stated that the prosecutrix had disclosed to him that “she was staying willingly with her boyfriend for last one year in a rented room in Kandivli. Had multiple (5 sexual intercourses,

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twice with her consent and thrice without her consent). Last intercourse on 15/9/13 & then she ran away on 17/9/13, was staying on the footpath, & was picked up by the Police on 22/9/13.” The said history was narrated by the victim herself to the doctor. The prosecution has not investigated with regard to the alleged pregnancy of the prosecutrix.

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The learned A.P.P does not dispute the fact, that the co-accused Amir @ Faizal Khan has been released on bail by this Court (Coram : Sadhana S. Jadhav, J.) subsequent to the rejection of the applicant's first bail application. The learned A.P.P also does not dispute the fact that the present applicant has not been named in the FIR or in any of the supplementary statements.

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Considering the fact that the main co-accused Amir @ Faizal Khan has been released on bail and the evidence as against the present applicant and the fact that the prosecutrix has changed her version in all the statements right from the FIR to the fourth supplementary statement dated 10^th October, 2013, and the other material on record, the applicant deserves to be enlarged on bail on the following terms and conditions:

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ORDER

(i) The Applicant Mohd. Alip Mohd. Sayed Shaikh @ Alif

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be released on bail on furnishing P.R. Bond in the sum of Rs.15,000/- with one or two sureties in the like amount;

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(ii) The applicant shall not influence, intimidate or attempt

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to contact the prosecutrix or any other witness concerned with the case, directly or indirectly;

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(iii) The applicant shall cooperate with the trial Court in the

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conduct of the trial;

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(iv) The applicant shall file an undertaking in the trial Court within two weeks of his release, that he will comply with the aforesaid conditions specified in clauses (ii) and (iii);

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(v) If there is a breach of any of the aforesaid conditions, the prosecution shall be at liberty to seek cancellation of the applicant's bail.

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The Application is allowed and disposed of in the above terms.

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All concerned to act on the authenticated copy of this order.

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REVATI MOHITE DERE, J.

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Mohd Alip Mohd Sayed Shaikh @ Alif v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mohd Alip Mohd Sayed Shaikh @ Alif v. the State of Maharashtra

Case brief

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What did the court decide?

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