Allowed

Shivaji S/O. Surendra Palajkar v. the State of Maharashtra

Bombay HC5 Dec 2017WP/1332/2017

Case brief

AI extract

What is this about?

In this criminal writ petition, the High Court at Bombay, Bench at Aurangabad, allowed the petition and discharged the petitioner from criminal proceedings. The court held that the accused's alleged assistance was insufficient to make out a case for prosecution under the relevant offenses.

What did the court decide?

The impugned order rejecting discharge is quashed; the petitioner is discharged from the proceedings in Special Case No.6/2016.

Shivaji S/O. Surendra Palajkar Vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2017)

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Cr.WP 1332/17

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.1332/2017

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Shivaji s/o Surendra Palajkar,
age 32 yrs., occu.agri.,
r/o at post Virsoni
Tq.Himayatnagar Dist.Nanded.

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...Petitioner..

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Versus

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The State of Maharashtra.

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...Respondent...

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 .....

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Shri A.R. Vyawahare, Advocate h/f Shri G.P. Shinde,
Advocate for petitioner.

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Shri A.A. Jagatkar, APP for respondent.

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 .....

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CORAM: PRAKASH D. NAIK, J.

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DATE: 05.12.2017

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ORAL JUDGMENT :

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1]With the consent of parties, the petition is

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heard for final disposal.

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2]Rule. Rule made returnable forthwith.

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3]the petitioner has challenged the criminal

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proceedings pending vide Special Case No.6/2016. The

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Cr.WP 1332/17

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petitioner has assailed the order dated 25.10.2016 passed
by the learned Additional Sessions Judge, Bhokar
Dist.Nanded, below Exhibit 65.

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4]The petitioner is prosecuted in connection with
Crime No.17/2016, which was registered with Himayatnagar
Police Station, Nanded, for offences punishable u/s 363,
366(A), 376 r/w 34 of the Indian Penal Code and Sections
4 and 8 of the Protection of Children from Sexual
Offences Act, 2012 (in short POCSO Act). The FIR was
lodged on 17.5.2016 at the instance of the father of the
victim.

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5]Brief facts of the prosecution case are as

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follows:-

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a]In the FIR lodged by Nanaji Punjaram Kadam,
it was alleged that the victim Vaishnavi is his
daughter. She is aged about 15 years 9 months.

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She had visited the house of her maternal uncle.

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On 17.5.2016, he saw the victim Vaishnavi and
accused Tanaji running away and he tried to chase

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them. He failed to apprehend them. The FIR was
lodged for offence u/s 363 r/w 34 of the Indian
Penal Code on 17.5.2016.

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b]The statement of the victim was recorded

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and thereafter the offences u/s 366-A, 376 of the
Indian Penal Code and u/s 4 and 8 of the POCSO
Act were added. On completing the investigation,
the charge-sheet was filed on 19.8.2016 against
seven accused.

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c]The prosecution case in the charge-sheet is
that accused Tanaji had kidnapped the minor girl
Vaishnavi from the lawful custody of her parents
by giving false assurance of marriage. She was

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taken to Chandannagar Dist.Dhar in Madhya Pradesh
and the said accused committed sexual intercourse

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with her. The allegation against the other
accused is that they have assisted Tanaji in
commission of the crime.

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6]The petitioner preferred an application for

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discharge before the Court of learned Additional Sessions

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Judge, Bhokar. The application of the petitioner was
rejected on 25.10.2016. The application preferred by the
accused nos.4 to 6 was allowed.

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7]The learned counsel for the petitioner submits
that there is no evidence to prosecute the petitioner for

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the alleged offences. The co-accused have been

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discharged by the trial Court. The name of the
petitioner had appeared for the first time in the remand
application dated 25.5.2016. The allegations in respect
of the offence u/s 376 of the Indian Penal Code as well
as Sections 4 and 8 of the POCSO Act are attributed to

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accused Tanaji. The statement of the victim, which was
recorded u/s 164 of the Cr.P.C. states that the
petitioner had given money to Tanaji on the Bus Stand. It
is submitted that accepting the said statement as it is,

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it is not sufficient to prosecute the petitioner by
invoking Section 34 of the Indian Penal Code. The
statement of Vaishnavi Kadam dated 26.5.2016 clearly
states that she had love affair with accused Tanaji for

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one and half year. On reading the statement,it is clear
that she had eloped with the said accused. In the said

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statement, she has not attributed any role to the
petitioner. She has not disclosed in any manner that the
petitioner had enticed the victim to go alongwith the co-

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accused Tanaji. She had, however, stated that the

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friends of Tanaji namely Sandip Jadhav and Mohan Surwase
had helped them to elope. None of the prosecution

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witnesses attribute any overt-act of enticement or
participation in kidnapping of the victim. The offences,
as alleged, are not made out against the petitioner and
the trial Court ought to have discharged him. No case is
made out to proceed against the petitioner. The charge
cannot be framed on inferences and, therefore, the
petitioner should have been discharged by the Court.

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8]The learned APP submitted that the petitioner
has played a role in helping the co-accused to abduct the
victim. The petitioner has paid money to accused Tanaji

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at the Bus Stand and facilitated him to run away with victim Vaishnavi. It is submitted that prima facie case is made out against the petitioner and, therefore, he was not entitled for discharge. It is submitted that the

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statement of the victim recorded u/s 164 of the Cr.P.C.
shows involvement of the petitioner. She has stated that

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the petitioner was instrumental in giving money to

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accused Tanaji at the Bus Stand. It is submitted that
the accused is involved in serious crime and the trial
Court has rightly rejected his application for discharge.

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9]On perusal of the record, it can be seen that

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the First Information Report was registered at the

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instance of Nanaji Punjaram Kadam on 17.5.2016.
Initially, the offence was registered u/s 363 of the
Indian Penal Code. The first informant has stated that

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the victim girl, who is the daughter of the informant,
was enticed by the accused Tanaji and both of them ran
away from the house of maternal uncle of the victim. The
supplementary statement of first informant was recorded
on 24.5.2016. The first informant has also stated that

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he tried to search the victim but could not trace her.

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It was alleged that the uncle of the victim had seen the

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victim running away with accused Tanaji Palajkar. The

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said accused was helped by the other accused in
kidnapping the victim. The names of the said accused

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were stated in the complaint. It is alleged that the
accused Tanaji Palajkar was helped by his father Madhav
Palajkar, uncle Maroti Palajkar and cousin Amol Palajkar.

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The name of the petitioner is not appearing in the First
Information Report. On the basis of the statement, the
offence was registered u/s 363 r/w 34 of the Indian Penal

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Code. The supplementary statement of the informant was
recorded on 24.5.2016. In the said statement, it was
stated that Tanaji Palajkar was also assisted by the

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other persons in kidnapping the victim. In the said

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statement, names of friend of Tanaji Palajkar, Shri
Sandip Jadhav and Shivaji Palajkar were mentioned.
Thereafter, investigation was conducted and statements of
several witnesses were recorded. The statement of

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Vaishnavi Kadam, aged about 15 years 9 months was

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recorded on 26.5.2016. In the said statement, she has
stated that she is in love with Tanaji Palajkar. Both of
them had decided to marry. They realized that the family
would not permit them to marry. Hence, they decided to

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elope. On 17.5.2016, as decided, she proceeded to the
house of her uncle Vijay Pawar residing at Sonari. The

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accused Tanaji came near the house of her uncle and at
about 5-00 a.m. On 17.5.2016, she left the house with the
bag of clothes. Both of them went to Nanded and
thereafter to Karanja. Tanaji called his friends Sandip
Jadhav and Mohan Bansiram Surwase. They were informed

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that both of them had run away from the house and

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requested them to drop them at some place. At that time,
Mohan told them that he would drop them at Mahu in Madhya
Pradesh. All of them went to Pritampur in Madhya Pradesh

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and stayed there for five days. It is further stated by

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the victim that at that time, accused Tanaji had sexual
relationship with her. On 25.5.2016, the Police attached
to Nanded Police Station visited the said place and both
of them were brought back to Nanded. She also stated
that she had taken away gold weighing 14 Gms., which was
mortgaged by her and received an amount of Rs.20,000/-.
The said amount was repaid and the gold was received by
her. They were handed over to Himayatnagar Police
Station on 26.5.2016. In the said statement, she stated
that she was enticed by the accused to run away with
accused Tanaji. Accused Tanaji had promised her of
marriage. In concluding paragraph, she had stated the
names of accused including the petitioner as one of the
person who was instrumental in enticing her to run away
with the accused Tanaji who committed the alleged act.
10]On reading the said statement dated 26.5.2016,

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except stating the name of the petitioner in the
concluding paragraph, the victim has not referred to his
presence in any manner and no role was attributed to him.
The victim has referred to the names of other persons,
who had accompanied her and Tanaji to Madhya Pradesh.
Thereafter, the statement of the victim was recorded u/s

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164 of the Cr.P.C. on 10.6.2016. In the said statement,

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she has stated that she left the house of her maternal
uncle alongwith accused Tanaji. Both of them went to Bus
stop at Nanded. Accused Shivaji Palajkar met them at the
Bus stop. He gave some money to accused Tanaji and

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helped them in boarding Bus proceeding to Karanja.
Thereafter, accused Tanaji gave call to other persons and
all of them went to Madhya Pradesh. In the earlier
statement dated 26.5.2016, the victim has not referred to

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the presence of the petitioner at the Bus stop. In the

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statement u/s 164 of the Cr.P.C,, which was recorded
belatedly, she has referred to the aforesaid act of the
petitioner – accused. Taking the said version as it is,

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no offence can be attributed to the petitioner. The
statement merely states that the petitioner was at the
Bus stop and he gave money and guided them to board the

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Bus proceeding to Karanja. This would not constitute
commission of any offence. It cannot be said that the
co-accused and the present petitioner had acted in
furtherance of common intention. The victim has left

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with accused Tanaji out of her own willingness and merely
on account of the allegations, as stated, the petitioner

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cannot be prosecuted for the alleged offences. In the
circumstances, the trial Court ought to have discharged
the petitioner. The crime u/s 376 of the Indian Penal
Code is attributed to accused Tanaji. The petitioner is
not even a person who accompanied them to Madhya Pradesh
where the co-accused had sexual intercourse with the
victim.

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11]The Sessions Court has rejected the application
for discharge preferred by the petitioner. While

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rejecting the said application, the Court has observed

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that in the statement of the victim recorded by the
Police on 26.5.2016, the victim has not stated as to how

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and in what manner, the accused have helped Tanaji. In a

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statement recorded u/s 164 of the Cr.P.C., however, she
has stated that the petitioner i.e. the accused no.7 had
met her and accused no.1 Tanaji at Nanded Bus Stand and

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gave money and boarded them in Karanja bound Bus. This

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shows that there was some role attributed to the
petitioner. However, in the statlement u/s 164 of the
Cr.P.C., the victim has not stated in what way and how

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the accused nos.4 to 6 have helped her and accused no.1 –
Tanaji. The Court has also observed that on perusal of

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statement of Vikas Chavan, the cousin of the victim, it
appears that the accused Tanaji had come to Sonari and
the victim eloped with him. This shows that the accused
nos.4 to 7 did not accompany Tanaji to village Virsoni or
any other place. It is further observed that witnesses
Bansilal Yadav and Pappu Parihar were residing in
Chandannagar, Dhar, Madhya Pradesh, have not deposed any
incriminating evidence against the accused nos.4 to 7.

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The Court, therefore, rejected the application of the
petitioner only on the basis of the statement of the

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victim, as stated above. The other accused were
discharged. The trial Court has, therefore, erroneously
rejected the application of the petitioner. Except the

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handing over of money as alleged in the statement
recorded subsequently u/s 164 of the Cr.P.C., no other
statement referring to the involvement of the petitioner
is available on record. Accepting the said statement as

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it is, the same would not be sufficient to prosecute the
petitioner for the said offences. There is no evidence to

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frame charge against the petitioner herein. The
petitioner is, therefore, entitled to be discharged.
Hence, I pass the following order.

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Cr.WP 1332/17

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O R D E R

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a]Criminal Writ Petition No.1332/2017 is
allowed.

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B]The impugned order dated 25.10.2016 passed
by learned Additional Sessions Judge, Bhokar,
below Exhibit 65 in Special Case No.6/2016 is
quashed and set aside and the petitioner is

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discharged from the said proceedings.

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 (PRAKASH D. NAIK, J.)

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ndk/ crwp133217.doc

Shivaji S/O. Surendra Palajkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Shivaji S/O. Surendra Palajkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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