Dismissed

Salim Osamanbhai Ghodiwala (Vagher) v. State of Gujarat

Gujarat HC24 Mar 2022CR.MA/2530/2022

Case brief

AI extract

What is this about?

This common order dismissed bail applications of two accused facing serious sexual assault charges under POCSO and IPC. The High Court rejected the plea for parity with co-accused who were granted bail, emphasizing the victim's age and statutory presumptions of culpability.

What did the court decide?

Regular bail applications rejected; Rule discharged in both matters (Criminal Misc. Applications Nos. 2418/2022 and 2530/2022).

Salim Osamanbhai Ghodiwala (Vagher) Vs State… — Child Sexual Offences (POCSO) | Gujarat HC (2022)

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R/CR.MA/2418/2022 ORDER DATED: 24/03/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL MISC.APPLICATION NO. 2418 of 2022 With R/CRIMINAL MISC.APPLICATION NO. 2530 of 2022

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NAWAZ SHABIRBHAI SAFIYA

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Versus STATE OF GUJARAT

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Appearance:

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M S PADALIYA(7406) for the Applicant(s) No. 1 MR PRANAV TRIVEDI APP for the Respondent(s) No. 1 RULE UNSERVED for the Respondent(s) No. 2

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CORAM: HONOURABLE MS. JUSTICE GITA GOPI

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Date : 24/03/2022

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COMMON ORAL ORDER

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Both the present applications have been arise out of the common FIR therefore they are heard together and are disposed of by this common order.

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These applications have been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with FIR being C.R. No.11202057210514 of 2021 registered with Sikka Police Station, Dist.: Jamnagar for offences punishable under sections 376(2)(n), 323, 363, 506, 506(2) and 114 of IPC, sections 4 and 6 of the Protection of Children from Sexual offences Act, 2012 and section 3(2)(5) of the Atrocities Act, 1989.

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Since the matters are under Atrocities Act, the

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Page 1 of 5

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R/CR.MA/2418/2022 ORDER DATED: 24/03/2022

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complainant has been made party respondent no.2, but as per the report the notice of Rule could not be served, as the respondent no.2 and her family had left the last known address and their whereabouts could not be known despite several attempts. Thus, in absence of respondent no.2, the present applications have been heard.

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Mr. M.S. Padaliya, learned advocate for the applicants submitted that, one of the co-accused whose role attributed is graver and accused no.4 who is having similar role to that of the applicants, have been granted bail thus on the ground of parity, Mr. Padaliya further submitted that the applicants are falsely implicated by the complainant with a view to extort money and that applicants are nowhere connected with the alleged crime.

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4.1 Mr. Padaliya submitted that taking into consideration the circumstances as alleged in the FIR, the false implication cannot be ruled out. He further submitted that DNA report of the baby of the victim excludes the present applicants. It is stated by Mr. Padaliya that prior to this complaint, there was a complaint being FIR No.11202046200692 of 2020 with the similar type of allegation. Thus, Mr. Padaliya submitted that the complainant is in habit of filing such type of complaint. It was, therefore, prayed that the present applications be allowed and the applicants herein be released on regular bail.

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Page 2 of 5

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R/CR.MA/2418/2022 ORDER DATED: 24/03/2022

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Mr. Pranav Trivedi, learned Additional Public Prosecutor submitted that, as per the role of the present applicants and the specific allegations against them in the offence, they cannot be equated with accused Aslam Mamad Sandhar and Satar Ajijbhai Khimani, who had been released on bail.

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5.1 Mr. Trivedi, learned APP, further referring to the DNA report submitted that DNA profile would suggests only one person as a biological father and that cannot be a ground to escape from the rigors of section 30 of the POCSO Act. It was, therefore, prayed that no discretion may be exercised in favour of the applicants.

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Heard learned advocates on both the sides and perused the material on record. It appears that the charge-sheet has been filed against five accused, wherein accused no.5 has been shown as abettor and in Column No.2 one accused has been shown as absconder. As per the charge-sheet, the age of the victim girl is 16 years and 6 months. The allegation against the applicant of Criminal Misc. Application No.2418 of 2022 is that, he had often taken the victim girl in the bushes of ‘Babul’ at the shore of a river, which is at the outskirt of Moreknda village and thus repeatedly committed offence of aggravated penetrative sexual assault; and there is also allegation of giving slap to the mother of complainant, while the allegation against the applicant of Criminal

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Page 3 of 5

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R/CR.MA/2418/2022 ORDER DATED: 24/03/2022

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Misc. Application No.2530 of 2022 is that, by entering the house of the victim girl against her wish had forcibly committed the offence, thus would be guilty of penetrative sexual assault.

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6.1 Further, it appears that on being found pregnant, the offence got disclosed. Though the DNA report excludes the present applicants as biological father of the baby of the victim girl, the statement of the victim girl and the complainant would bear significance, taking into consideration the age of the victim girl, the minor victim is incapable of thinking rationally and giving any consent.

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6.2 Section 30 of the POCSO Act provides for drawing presumption of the culpable mental state on the part of the accused, which includes intention, motive, knowledge of the fact and the reason to believe a fact.

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6.3 When the bail was moved by the present applicants before the Special Judge under the POCSO Act, the learned Judge has not appreciated the case of the applicants on the ground of principles of parity with that of the co-accused, Aslam Mamad Sandhar and Satar Ajijbhai Khimani; and further as per the order of the coordinate bench dated 22.12.2021 in Criminal Misc. Application 17824 of 2021, the applicant – accused Aslam Mamad Sanghar, appears to have come with settlement,

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Page 4 of 5

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R/CR.MA/2418/2022 ORDER DATED: 24/03/2022

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wherein the mother of the victim had denied the allegation against him; while the accused – Satar Ajijbhai Khimani has been enlarged on bail by order dated 13.01.2022 in Criminal Misc. Application No.19903 of 2021 on the aspect of settlement with accused Aslam Mamad Sanghar.

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Taking these facts into consideration, this Court does not find any reason to consider both these applications on the principles of parity and therefore taking into consideration the allegations against the present applicants and considering the age of the victim girl and the provisions of section 30 of the POCSO Act, both the applications stand rejected. Rule is discharged in both the matters.

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Office to keep copy of this order in Criminal Misc. Application No.2530 of 2012.

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(GITA GOPI, J.)

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Pankaj

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Salim Osamanbhai Ghodiwala (Vagher) v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Salim Osamanbhai Ghodiwala (Vagher) v. State of Gujarat

Case brief

What is this about?

What did the court decide?

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