Allowed

Pramod Sahadev Vanjipurkar v. the State of Maharashtra

Bombay HC23 Feb 2018APPA/170/2018

Case brief

AI extract

What is this about?

Single Judge allowed application for suspension of rigorous imprisonment and release on bail to appellant convicted under POCSO Act. Court noted victim admitted prior relations by omission and found no evidence of violence or force against her, citing love bond. Bail granted with bond and restriction to contact victim.

What did the court decide?

Suspension of substantive sentence; release on bail on P.R. Bond and surety of Rs.15,000/-; no contact with victim or relatives during appeal.

Pramod Sahadev Vanjipurkar Vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.170 OF 2018 IN CRIMINAL APPEAL NO.106 OF 2018

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PRAMOD SAHADEV VANJIPURKAR )...APPLICANT

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V/s.

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THE STATE OF MAHARASHTRA )...RESPONDENT

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Ms.Prachita Rathod, Advocate for the Applicant.

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Mr.Prashant Jadhav, APP for the Respondent - State.

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CORAM : A. M. BADAR, J. DATE : 23^rd FEBRUARY 2018

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P.C. :

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1 This is an application for suspension of sentence and

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releasing the applicant/accused on bail during pendency of the

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appeal filed by him. The applicant/accused has been convicted of

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the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act and he is sentenced to suffer

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rigorous imprisonment for 10 years apart from direction to pay

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fine of Rs.2,000/- and in default, to undergo simple imprisonment for 30 days.

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2 Heard the learned advocate appearing for the applicant/accused. She submitted that, though according to the prosecution case the sexual relations between the parties were stretched from the year 2011 till lodging of the report, the evidence regarding the sexual relations from the year 2011 to 2015 are coming on record by way of omissions. The First Informant herself, in her cross-examination, has accepted this position. The learned advocate further drew my attention to the evidence of mother and father of the victim in order to demonstrate that the alleged victim had slashed her wrist on two occasions and atleast on one occasion, the applicant/accused was required to provide medical treatment to her. The learned advocate further drew my attention to the version of the victim girl to demonstrate that despite knowing the fact that the applicant/accused is a married person, she continued relations with him and had happily roamed with him at several places and

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stayed with him in a lodge for eight days, just prior to lodging the report.

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3 The learned APP opposed the application by contending that the victim was below 18 years of age and evidence of PW12 Khan Mohammed Javed shows that she was minor. The learned APP also relied on evidence of PW8 Dr.Girish Tasgaonkar.

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4 I have considered the rival submissions and perused the copies of deposition of prosecution witnesses as well as the documentary evidence.

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5 The First Information Report (FIR) in this case came to be lodged on 18^th February 2015 by PW2 Mehsar Qureshi, who is mother of the victim child/PW1. The FIR itself shows that the prosecutrix/PW1 and the present applicant/accused were deeply in love with each other and the prosecutrix/PW1 had stayed with the applicant/accused for about eight days in a lodge at Dadar.

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6 On this backdrop, even evidence of the prosecutrix/ PW1 , who at the relevant time of lodging the FIR was 17 years and 7 months old, shows that she was deeply in love with the applicant/accused despite knowing the fact that the applicant/ accused is a married person. The prosecutrix/PW1 though has stated in her chief-examination that she and the present applicant/accused had indulged in sexual relations from the year 2012 onwards at the house of friends of the present applicant/accused namely Shekhar and Montu, in her crossexamination she has candidly accepted the fact that she did not go to the house of either Shekhar or Montu at any point of time. Thus, it is highly doubtful whether the prosecutrix/PW1 was having sexual relations with the present applicant/accused right from the year 2012. That apart, in paragraph 15 of her crossexamination, the prosecutrix/PW1 has accepted the fact that such part of her evidence is coming on record by way of omission.

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7 Then what remains is the incident which took place just prior to lodging the FIR i.e. in the year 2015. Evidence of the

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prosecutrix/PW1 shows that the present applicant/accused promised to marry her but he did not marry her and it appears that, then the prosecutrix/PW1 slashed her wrist and was admitted to K.E.M. Hospital, where the applicant/accused had helped her in her medical treatment. PW5 Naeem Qureshi, who is father of the prosecutrix/PW1, is stating that, infact, on two occasions, out of love relations with the present applicant/ accused, the prosecutrix/PW1 slashed her wrist and because of love affair with the present applicant/accused, she left the house for eight days.

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8 Evidence of PW7 Armaan Nadap, Manager of Woodland Guest House shows that from 15^th January 2015, the present applicant/accused and the prosecutrix/PW1 stayed at the said guest house happily. The subject FIR was then lodged alleging penetrative sexual assault on the prosecutrix/PW1, who at the relevant time was more than 17½ years of age, even if her School Leave Certificate is accepted. However, even PW12 Khan Mohammed Javed, Teacher, who was examined to prove the

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School Leaving Certificate, has stated in his evidence that date of birth of the prosecutrix/PW1 was recorded on the basis of her date of birth reflected in the earlier School Leaving Certificate. To prove the age, what is required is, evidence of the person who has informed the date of birth of the victim to the School authorities or the certificate issued under the Registration of Births and Deaths Act, 1969. Be that as it may, the prosecutrix/PW1 was subjected to ossification test and PW8 Dr.Girish Tasgaonkar has deposed that she was found to be more than 17 years but less than 18 years of age. In the matter of Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir and Others1 the Honourable Apex Court has held that the margin of error in age ascertained by radiological examination is two years on either side.

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9 To sum up, the applicant/accused and the prosecutrix/ PW1 were deeply in love with each other and during their stay at the lodge, where they had sexual intercourse just prior to lodging

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the report, the prosecutrix/PW1, according to her date of birth 1 AIR 1982 SUPREME COURT 1297

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recorded in the school, was more than 17½ years of age. It is not seen that the prosecutrix/PW1 was subject to violence by the present applicant/accused and evidence to that effect, as seen from evidence of PW10 Pravin Kalukhe, Assistant Police Inspector, has come on record by way of omission. Evidence regarding alleged sexual act prior to this incident is coming on record by way of omissions is admitted by the prosecutrix/PW1 herself. In the matter of Satyam Ramchandra Fulore vs. The State of

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Maharashtra 2 (Coram : Sadhana S. Jadhav, J.), the alleged

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victim of the crime was 16 years old female child who was intending to marry the applicant/accused therein. With a reason that the girl was in love with the applicant/accused therein, this court, vide order dated 30^th September 2014, was pleased to release the applicant/accused therein, on bail. In the matter of Sunil Patil vs. State of Maharashtra3 in paragraph 12, this court has given guidelines while considering the case of a boy and a minor girl in love. Considering the fact no force or violence was applied to the alleged victim of the crime in question and the

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2 Criminal Bail Application No.1953 of 2014

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3 2016 ALL MR (Cri) 1710

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present applicant/accused as well as the victim of the crime in question were deeply in love with each other, I do not see any reason to deny bail to the present applicant/accused.

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10 In the result, the applicant/accused deserves to be released on bail, and therefore, the order :

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ORDER

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i) The application is allowed.

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ii) Substantive sentence of imprisonment imposed on the applicant/accused is suspended and he is directed to be released on bail on his executing P.R.Bond in the sum of Rs.15,000/- and on furnishing surety in like amount.

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iii) As a condition of this order, the applicant/accused should not contact either the prosecutrix/PW1 or her relatives in any manner during pendency of the appeal.

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iv) Failure to abide by this condition shall result in cancellation of bail at the instance of the prosecution.

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v) The application is disposed of accordingly.

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(A. M. BADAR, J.)

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Pramod Sahadev Vanjipurkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Pramod Sahadev Vanjipurkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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