Kashyap S/O Umeshbhai Ramanbhai Patel vs State Of Gujarat

A.J.Desai, J

ORDER IN CR.MA NO.7564.2020

RULE. Learned APP waives service of notice of Rule on behalf of the respondent No.1 and learned advocate Mr. Nikhil Kariel waives service of

notice of Rule on behalf of the respondent No.2. With the consent of learned advocates appearing for respective parties, present application is taken

up for final hearing today.

Present application under section 5 of the Limitation Act has been preferred by the applicant herein - original appellant requesting to condone the

delay caused in preferring the criminal appeal.

Having heard learned advocates appearing for the respective parties and considering the averments made in the application in support of the prayer to

condone the delay, present application is allowed and delay caused in preferring the criminal appeal is hereby condoned. Rule is made absolute to the

aforesaid extent.

ORDER IN CRIMINAL APPEAL NO.591/2020

[1.0] By way of present appeal under Section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred

to as “Atrocities Actâ€), the appellant herein â€" original accused has prayed to release him on bail during the pendency of the trial for the

offences punishable under Sections 363, 366, 376(f), 376(n), 114 and 120(B) of the Indian Penal Code, 1860 (hereinafter referred to as “IPCâ€) as

well as for the offences under Sections 3(2)(v) and 3(1)(w)(i) of the Atrocities Act as well as for the offence under Sections 4, 5(l) and 8 of the

Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Actâ€​).

[2.0] This is a successive appeal subsequent to filing of the charge-sheet. An appeal being Criminal Appeal No.2379/2019 came to be filed by the

present appellant before filing of charge-sheet by the Investigating Officer. The said matter came to be disposed of by the coordinate Bench

(Hon’ble Mr. Justice B.N. Karia) by oral order dated 27.12.2012 by which the appellant herein was permitted to withdraw the said appeal with a

liberty to file an application before the trial Court for releasing him on bail subsequent to filing of the charge-sheet and the same was rejected.

Hence, the present criminal appeal.

[3.0] This Court passed the following order on 25.06.2020. “Considering the order dated 27.12.2019 passed by the coordinate Bench (Hon’ble

Mr. Justice B.N. Karia) in Criminal Misc. Application No.2379/2019 and considering the fact that present is a successive bail application, Registry is

hereby directed to list the present appeal and the application for condonation of delay before appropriate Court forthwith.â€​

Accordingly, the matter was placed before the Registry as per the office note dated 06.07.2020 attached with an instruction being Judicial/09/2019

dated 25.04.2019 issued under the orders of Hon’ble The Then Acting Chief Justice and therefore, present matter has been listed before this

Court for hearing.

[4.0] In response to the notice issued by this Court to the original complainant as per the mandatory provisions of the Atrocities Act, learned advocate

Mr. Nikhil Kariel has appeared for the original complainant and has opposed the present criminal appeal whereas learned APP Ms. Calla for the State

of Gujarat has also opposed grant of bail to the accused.

[5.0] The short facts arise from the record are as follows:

[5.1] That, one Manharbhai Keshabhai Bharwad, resident of Vadodara lodged an FIR being I-CR No.106/2019 with Manjalpur Police Station,

Vadodara for the offences under Sections 363, 366, 114 of IPC and section 3(2)(v) of Atrocities Act against the appellant as well as his wife viz.

Kavitaben Kashyapbhai Patel alleging that the prosecutrix whose date of birth is 11.06.2002 Was studying in commerce stream of Std. 12 in

Vishvamitri H.S. Patel School. The present appellant alongwith his wife were running classes for imparting education for students of commerce

stream and the prosecutrix used to attend the classes. It is further alleged that on 29.05.2019 present appellant alongwith his wife visited the house of

complainant and requested him that since his daughter has passed out Std.12, they are going for darshan to Ambaji and asked him to send the

prosecutrix with them.

[5.2] That, when the prosecutrix did not return till late night, the complainant tried to contact his daughter as well as the appellant and his wife on their

mobile phones but all the mobiles phones were found switched off and ultimately the complainant lodged the FIR on 06.06.2019.

[5.3] That, the investigation commenced and ultimately the girl could be traced on 17.10.2019 from Shirdi town of State of Maharashtra who was with

the present appellant as well as his wife.

On completion of investigation, it was found that the prosecutrix was a minor girl and was subjected to offence of rape and therefore, the appellant as

well as the wife of the appellant were charged with the aforesaid offences. As stated herein above, the appellant has prayed for bail after filing of the

charge-sheet.

[6.0] Learned advocate Mr. N.K. Majmudar appearing for the appellant would submit that the FIR has been lodged after 7 days from the date of the

alleged incident that occurred on 29.05.2019 when the prosecutrix had traveled with the appellant and his wife. He would submit that when the girl

was found on 17.10.2019, her statement was recorded wherein the prosecutrix has categorically stated that she was not subjected to any violence or

any physical relation.

[6.1] He would submit that only after 4 days, by making further allegations the prosecutrix has tried to involve the present appellant for the offence of

rape for which the appellant is facing charges. By taking me through both the statements of the prosecutrix, he would submit that the girl was

harassed by her father and relatives and therefore, the prosecutrix had voluntarily left her parental home. He would submit that before Additional

Police Commissioner ‘F’ Division of Vadodara City, the prosecutrix on 17.10.2019 has categorically stated that the prosecutrix has left her

parental home on her own will and was not subjected to the alleged offence of rape, however when the prosecutrix was with her parents, she was

compelled to make the statement by which the offence of rape is lodged against the appellant. He would further submit that when the prosecutrix was

initially examined on 21.10.2019 by the Medical Officer of Government Hospital, Vadodara, she has declared that she was not subjected to physical

relation with the appellant and therefore, subsequent statement is got up one and therefore, the appellant be released on bail. He would further submit

that the wife of the appellant has already been released on bail on completion of investigation. He would submit that if the appellant is released on bail,

he will abide by all the conditions which may be imposed by this Court.

[7.0] On the other hand, learned APP has vehemently opposed the present criminal appeal and would submit that it is an admitted position that the

date of birth of the girl is 11.06.2002 and when the offence took place, the prosecutrix was below 18 years. She would submit that the present

appellant who is a married person and was running classes alongwith his wife had left Vadodara and stayed at Shirdi till they were found in the month

of October, 2019. She would submit that offences alleged against the present appellant have been prima facie made out when the prosecutrix has

resided with the appellant for more than 4 & 1/2 months and particularly when the prosecutrix was a minor girl. Even when the prosecutrix was found

out, she was a minor girl and recently in the month of June, 2020 the prosecutrix has become major. She would submit that when prosecutrix had

remained in company of the appellant continuously for 4&1/2 months and when her statement was recorded on 17.10.2019, she was under influence

of the appellant and accordingly the statement was made, however subsequently she has categorically alleged about the offence of rape. She would

submit that even if it is presumed that the prosecutrix had relation with the appellant and had consented to stay with the appellant, the same is an

offence in view of the fact that the prosecutrix is a minor girl. She, therefore, would submit that the appeal be dismissed.

[8.0] Learned advocate Mr. Nikhil Kariel appearing for the original complainant has adopted the arguments made by the learned APP and would

submit that the appeal be dismissed.

[9.0] I have heard learned advocates appearing for respective parties at length.

It is an admitted position that the date of birth of the prosecutrix is 11.06.2002. As per the complainant himself, on 29.05.2019, the complainant

permitted his minor daughter to accompany the present appellant, who is a married person as the appellant had assured that he is going to darshan of

Ambaji alongwith his wife. However, they never returned from Ambaji for considerable long time and ultimately the FIR came to be lodged by the

complainant on 06.06.2019. It reveals from the record that mobile which was being used by the prosecutrix was changed and new SIM card was

purchased and therefore, it was difficult to trace the prosecutrix. However, ultimately, after a period of more than 4 & 1/2 months the prosecutrix was

found from Shirdi town of State of Maharashtra where as per the statement of the prosecutrix, she was working with some office.

[9.1] It is true that on 17.10.2019, prosecutrix has stated that she had left her home in view of the behavior of his father. It also appears from the

statement of the prosecutrix that the appellant, his wife alongwith the prosecutrix had taken a house on rent at Shirdi and changed the residence on

two occasions. However, if the statement dated 21.10.2019 of the prosecutrix is perused, it appears that between 06.08.2019 to 09.08.2019, when the

wife of the appellant went to Gandhidham, the prosecutrix was subjected to rape by the appellant from time to time.

[9.2] In view of the above statement of the prosecutrix and the fact that the prosecutrix is a minor girl and the appellant who was aware about the

same, had deliberately hide the prosecutrix at a distance place in Maharashtra and had changed the mobile number and residential premises with

ulterior motives. When the prosecutrix is a minor girl, even if it is accepted that she had left her parental home at her own will and wish, the same

would not help the appellant, who is a married man, and has allegedly committed the aforesaid offences.

[9.3] The submission made by the learned advocate appearing for the appellant that wife of the appellant has been enlarged on bail and therefore, the

appellant is also required to be granted bail cannot be accepted in view of the above facts of the case and hence, the said submission is rejected.

[10.0] In view of the above discussion, present criminal appeal deserves to be dismissed and is accordingly dismissed. It is needless to say that the

observations made in the present order are of tentative nature and therefore, would not come in the way of the appellant in trial.

Present criminal appeal is accordingly dismissed.