GANESH SURYAKANT GUNDALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant is seeking bail in connection with crime No. 131 of 2019 registered with Loha police station, District Nanded for the offences punishable under Sections 376(2)(N), 366A of I.P.C., Section 4 of Protection of Children from Sexual Offences Act and Section 66(E) of Information Technology Act. His application Exh. 4 in Special (POCSO) Case No. 26 of 2019 with similar prayer came to be rejected by the learned Additional Sessions Judge, Kandhar vide order dated 09.07.2020.

(2.) Learned counsel for the applicant submits that initially, the father of victim has lodged a missing complaint against the unknown person, however, on 13.10.2019, the police statement of the victim was recorded. It has been alleged by the victim that the applicant performed the marriage with her by giving threats to publish her photographs on Facebook and took her to various places. Learned counsel submits that the victim has alleged that against her will the applicant has performed the marriage with her in Aurangabad itself within the limits of Garkheda area in one marriage hall, known as "Arya Bhavan". Learned counsel submits that it has been specifically stated by the victim in her statement that the applicant has not performed any sexual intercourse with her. Learned counsel submits that only after a gap of one month, in the supplementary statement, the victim for the first time had made allegations for commission of rape. Learned counsel submits that the victim was subjected to medical examination on 13.10.2019 itself, wherein she neither given any history regarding sexual assault nor history about the sexual intercourse. Learned counsel submits that all findings recorded by the Medical Officer in medical examination certificate are negative. Learned counsel submits that the victim was 19 years of age at the time of alleged commission of crime. During the course of investigation, the investigating officer has collected various documents, including the school leaving certificates, Aadhar card and also the certificate of age and nationality issued by the Tahsildar, wherein the date of birth of the victim is mentioned as 15.10.2000. Learned counsel submits that in view of the said certificates, as on the date of alleged incident, the victim was more than 18 years of age and in view of the same, the provisions of Protection of Children from Sexual Offences Act are inapplicable. Learned counsel submits that the applicant and the victim were in love and since the victim was major, they have performed the marriage and a certificate to that effect is annexed to the application at page 54. Learned counsel submits that the victim has not made any allegations against the applicant as she has no grudge against the applicant, however, the victim seems to have made allegations against the applicant under the pressure of her parents. Learned counsel has pointed out the annexures of the application, which include marriage photograph etc. The applicant has completed his graduation and at present also he is taking education. There is no criminal history. The investigation is over and the charge sheet has been submitted. The applicant may be released on bail.

(3.) Learned A.P.P. has strongly resisted the application on the ground that though there are school leaving certificates indicating some different dates of birth and which is part of investigation papers, however, during the course of investigation, the investigating officer has also collected the document i.e. birth certificate issued by the Nanded Waghala Municipal Corporation, wherein the date of birth of victim is mentioned as 15.10.2001. Learned A.P.P. submits that the parents of the victim got married on 16.4.2000 and in view of the same, in all probability, the date of birth of the victim is not possible as 15.10.2000. The learned A.P.P. submits that as per the statement of the victim and even her parents police statement, the victim was 17 years, 11 months and 20 days at the time of crime. The learned A.P.P. submits that in view of the same, the charges under provisions of Protection of Children from Sexual Offences Act are levelled against the applicant. The victim though belatedly has made specific allegations against the applicant, however, there is strong prima facie case against the applicant. In view of the same, the applicant may not be released on bail.