Single judge rejected bail application of accused convicted under POCSO and IPC for kidnapping and sexual assault. Court held that evidence was sufficient and minor's age precludes consent defence.
Application for regular bail stands rejected.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
903 BAIL APPLICATION NO.1043 OF 2021
ASLAM KALIM SHAIKH
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
Mr. S.S. Deshmukh, Advocate for the applicant
Mrs. V.N. Patil-Jadhav, APP for respondent No.1/State Mr. C.C. Deshpande, Advocate (appointed) for the respondent No.2
CORAM : SMT. VIBHA KANKANWADI, J. DATE : 09th DECEMBER, 2021.
ORDER :
1 Present applicant has been arrested, in connection with Crime No.534/2020 dated 23.12.2020 registered with M.I.D.C. Police Station, Latur, Tq. & Dist. Latur, for the offence punishable under Section 366, 376, 376(2) (j), 376(3) of The Indian Penal Code, 1960 and under Section 3, 4, 5(j)(2) and 6 of The Protection of Children from Sexual Offences Act, 2012. It appears that the investigation is over and charge sheet has been filed before the Additional Sessions Judge, Latur under POCSO Act bearing Special Case No.12/2021. Present application has been filed for regular bail under Section 439 of The Code of Criminal Procedure, 1973.
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2 Heard learned Advocate Mr. S.S. Deshmukh for the applicant, learned APP Mrs. V.N. Patil-Jadhav for the respondent No.1/State and learned Advocate (appointed) Mr. C.C. Deshpande for the respondent No.2.
3 It has been vehemently submitted on behalf of the applicant that perusal of the First Information Report would show that there is no direct or indirect evidence or even circumstantial evidence against the applicant. He is aged 21. He has no criminal antecedents. He is falsely implicated in the offence. He is in jail since 23.12.2020. There is delay in filing the complaint. There is no question of tampering evidence of witnesses and applicant is ready to abide each and every condition.
4 It has been further submitted on behalf of the applicant that victim has lodged the FIR alleging that when she was residing with her parents at Kallam, she got acquainted with applicant Aslam Shaikh and used to meet intermittently. Thereafter for Dassera festival she had been to maternal grandmother at Nagmode Vasti. At that time, applicant come to her at Nagmode Vasti and she was alone at home. Applicant took her by his Scorpio vehicle towards Gawali Vasti around 3.00 to 4.00 p.m. Informant cannot remember the exact date. It is further alleged that in the said vehicle applicant sexually assaulted the informant. She resisted, but applicant threatened her to kill. Thereafter applicant left her at the house of her
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maternal grandmother at Nagmode Vasti and threatened that if she discloses to anybody about the said incident he would kill her. Because of fear she did not disclose the incident to anybody. Thereafter, when her menstruation cycle was missed her grandmother took her to Government Hospital and after examination Doctor disclosed that informant was pregnant. It can be seen that there was love affair between applicant and victim. Her consent cannot be ruled out. Now, the investigation is over and the charge sheet is filed, therefore, physical custody of the applicant is not required. Taking into consideration age of the applicant, applicant be released on bail.
5 The learned Advocate appearing for the applicant has relied on the ratio laid down by Calcutta High Court in Ranjit Rajbanshi vs. The State of West Bengal and others in C.R.A. No.458 of 2018 , wherein it has been held that -
“Although the consent of a minor is not a good consent in law, and cannot be taken into account as ‘consent’ as such, the expression ‘penetration’ as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression ‘penetrates’, in Section 3(a) of the POCSO Act might not always cannote mere voluntary juxtaposition of the sexual organs of two persons of different genders.
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If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.”
6 Per contra, the learned APP strongly opposed the application and submitted that the applicant is aged 21. He is presumed to have every understanding capacity, but then the victim is minor. He has taken disadvantage of the innocence of the victim and took her away from the lawful custody of her guardian. The medical report of the victim supports the prosecution story. When there is sufficient evidence on record the applicant does not deserve any kind of sympathy.
7 It is to be noted that the FIR has been lodged by the victim herself. It is specifically stated that informant is 15 years of age. No doubt, now, the investigation is over and charge sheet has been filed, therefore, the further physical custody only for the purpose of investigation is not required. But, at the same time, now, we are required to consider what is the evidence,
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that is, collected against the present applicant. Applicant is aged 21. The applicant had sexual intercourse with the informant and after the medical examination was done of the informant, it was found that she was pregnant of ten months. In his bail application, there is no specific word or sentence, which states that he had love affair with the victim. Therefore, the said angle cannot be inferred, though tried to be canvassed on his behalf. The statement of the victim would show that applicant took victim in the Scorpio vehicle brought by him towards Gawali Vasti and he had sexual intercourse with her and after some days when the medical examination was done of the victim, it was found that she is pregnant of ten months. No doubt, now, the DNA test has been conducted and the pregnancy of the informant appears to have been terminated. The DNA report of the fetus, applicant and the informant is positive and the opinion given is that the present applicant and the informant are concluded to be the biological parents of the abortus of informant. Therefore, there is ample evidence against the present applicant, apart from the recovery of the clothes, statements of witnesses and the panchnamas.
8 Giving equal treatment to applicant, by giving advantage of the decision in S. Varadarajan vs. State of Madras, AIR 1965 SC 942 , will not arise in this case. At the outset, it can be said that after entire evidence, that
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is on record, the Hon’ble Apex Court had observed in that case -
“Where a minor girl alleged to be taken away by the accused person, had left her father’s protection knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, it could not be said that the accused had taken her away from the keeping of her lawful guardian within the meaning of section 361 of the Indian Penal Code, 1860 (“IPC” for short). Something more had to be done in a case of that kind, such as an inducement held out by the accused person or an active participation by him in the formation of the intention either immediately prior to the minor leaving her father protection or at some earlier stage.”
9 Here, we are at the prima facie stage, first. Secondly, the recent pronouncement by the Hon’ble Apex Court is required to be considered in which above authority is referred. In Criminal Appeal No.1919 of 2020, Anversinh @ Kiransinh Fatesinh Zala vs. State of Gujarat , decided by Three Judge Bench of Hon’ble Supreme Court on 12.01.2021, it has been observed -
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without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.”
10 As regards the defence of consensual affair taken by the accused is concerned, it has been observed -
“12. A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child’s minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such ‘enticement’ need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso-facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home as happened in the cases of King Emperor v. Gokaran and Emperor v. Abdur Rahman .
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enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to accompany him.
Here, the accused has not denied that victim was 15 years on the
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date of act. He has not claimed ignorance about her age. Therefore, taking into consideration the above said legal position and the fact that there is evidence against the present applicant, benefit of young age cannot be given to the applicant. Further fact, that is, required to be noted from the FIR and statement of the informant is that applicant took the informant in Gawali Vasti and sexually assaulted her and also threatened her to kill and, therefore, this amounts to active role played by him. Therefore, when there is ample prima facie evidence against him, he does not deserve discretionary relief to be released on bail. He was not supposed to take disadvantage of the innocence of the innocent girl. Hence, following order.
ORDER
paid by High Court Legal Services Sub Committee, Aurangabad.
( Smt. Vibha Kankanwadi, J. )
agd
2 issues framed by the court
Whether the applicant is entitled to bail despite prima facie evidence of kidnapping and sexual assault on a minor.
Whether consent of a minor can be a defence for offences under Section 361 and 366 of the IPC.
Colour shows how this judgement treated each authority
Ranjit Rajbanshi vs. The State of West Bengal and othersReferred¶19
Ranjit Rajbanshi vs. The State of West Bengal and others in C.R.A. No.458 of 2018
S. Varadarajan vs. State of MadrasDistinguished¶29
S. Varadarajan vs. State of Madras, AIR 1965 SC 942 · Who else cites this
Anversinh @ Kiransinh Fatesinh Zala vs. State of GujaratExplained¶34
Anversinh @ Kiransinh Fatesinh Zala vs. State of Gujarat, Criminal Appeal No.1919 of 2020
King Emperor v. GokaranReferred¶40
King Emperor v. Gokaran
Emperor v. Abdur RahmanReferred¶40
Emperor v. Abdur Rahman
5 provisions across 3 enactments
Aslam Kalim Shaikh
The State of Maharashtra
Vibha Kankanwadi
As recorded by the court registry
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