RITIK SURESH MILLIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This bail Application is filed under Sec. 439 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') for grant of regular bail by Applicant. He is incarcerated since 15/8/2023 in C.R. No.246 of 2023 for offences punishable under Ss. 363, 376(2) (f) (j) (n) and 376(3) of the Indian Penal Code, 1860 (for short 'IPC') and under Ss. 4, 6, 8 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO'). First Informant prosecutrix is the cousin sister of Applicant.

(2.) Date of incident is between April and May 2023. There are three incidents alleged by prosecutrix. Prosecutrix was 14 years and 6 months old whereas Applicant - Accused was 20 years old on the date of incidents. Prosecutrix is an orphan. Three years prior to the incidents in question, she and her younger sister (two years younger) came to live with the family of the Applicant. Applicant's father and prosecutrix's father are brothers. Place of incident is the residential house of Applicant being Room No.311, Building No.5, MHADA Colony Bhakti Park, Wadala, Mumbai - 37. Prosecutrix, Applicant, Applicant's two elder brothers, younger sister of prosecutrix, Applicant's parents all resided together. The house comprises of one hall (14 feet x 8 feet), one kitchen (4 feet x 6 feet) and one bedroom (ante room (6 feet x 6 feet) FIR is lodged on 15/8/2023 by prosecutrix pursuant to which Applicant is arrested.

(3.) Prosecution case is that some time in the month of April 2023 on one afternoon at 3:00 p.m. when prosecutrix was sleeping in the hall and mother of Applicant was sleeping in the bedroom (anteroom), Applicant was present in the house. He at that time bolted the latch from the outside of the bedroom and slept near the prosecutrix and started touching her inappropriately. According to prosecutrix, he removed her jeans and clothes but because she was in deep sleep she did not realise anything. Thereafter Applicant ravished her modesty forcibly against her wish despite her protest and questioning and when she attempted to shout he forcefully shut her mouth with his hand and after committing the act left the house. In the FIR, the prosecutrix further states that after 10 days thereafter in the month of May 2023 on two occasions, on finding the prosecutrix alone at home in the afternoon, Applicant had forcible sexual intercourse with her against her wish. According to prosecutrix, she kept quiet about the three incidents since she was scared and at the mercy of the Applicant's parents living in the house. Hence she did not reveal the incidents to anyone. Record shows that until July 2023, prosecutrix attended her 10th standard tuition classes regularly but thereafter stopped attending the classes. Resultantly one of her friend called Kinjal whose statement is recorded visited her house on 13/8/2023 to inquire about the reason for her long absence. Prosecutrix initially informed her that she was suffering from jaundice which was the reason for her absence but when she was seeing her off, she confided in her that she was pregnant and asked her help her in that situation after narrating the incidents with the Applicant. According to prosecution case, her friend Kinjal narrated her ordeal to her mother and father whose statements have also been recorded. They all decided to help the prosecutrix. Hence on the following day i.e. 14/8/2023 Kinjal met the prosecutrix at her house and informed her to meet her mother. The prosecutrix met the mother on 15/8/2023 and alongwith her proceeded to the Police Station to lodge her complaint. Prosecutrix's statement was recorded on 15/8/2023 which is appended at page No.32 of the Application. She has narrated the aforesaid facts in her statement. Witness statements of her friend Kinjal and her mother and father are recorded on 21/8/2023 and appended at page Nos.38 to 41 of the Application. Statement of Applicant's mother is recorded on 31/8/2023 and statement of Applicant's elder brother is recorded on 2/9/2023. They are appended at page Nos.43 and 45 of the Application. In the meanwhile, Applicant was refereed to medical examination on 15/8/2023 and Applicant attended the KEM Hospital for medical counseling and examination. She was 10 weeks pregnant at that time and hence received medical counseling. On 17/8/2023 her statement was recorded by the Hospital Authorities / Medical Counsellor which is appended at page No.74 of the Application. In this statement, prosecutrix stated that in the month of April when all other members of the family had gone to work and in their absence when she was alone at home, at that time Applicant forcefully subjugated her and committed sexual assault on her. Prima facie when this statement is read, it is seen that in this statement there are three omissions namely prosecutrix has not stated about the time of the incident, she has stated that on the date of incident all other family members had gone for work and in their absence when she was alone at home (however in the FIR she states that Applicant's mother was at home) and she has not stated about the two incidents repeated by Applicant in the month of May 2023. Another glaring omission is about the whereabouts of her younger sister who was 13 years old.