Bombay High Court: In a criminal bail application under Section 439 of the Code of Criminal Procedure, 1973 filed by the applicant, a single-judge bench of Prithviraj K. Chavan, J. rejected the same while stating that to admit the application would tantamount to further aggravate and fester the wounds of the victim which are still fresh in her mind, body and soul.
The Court observed“ Having read the entire text, I do not think anything more is required to be said, for, words will fall short to describe the mental, psychological and physical state of the victim and the impact of the ordeal she had undergone at the hands of the applicant. The crime alleged to have been committed by the applicant is not only shocking the conscience of any prudent man but it is also obnoxious. Due to such horrendous crime, the victim has turned on as a nymphomaniac”
Background:
In the present matter, the victim eloped without informing anyone. This matter was reported by the victim’s father to the Amboli Police Station and crime under Sections 114, 363, 376(2)(f)(n) of the Penal Code and Sections 4, 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) was registered. There were two First Information Reports (F.I.R) that were filed. The first one being on 04-05-2021 when the victim had eloped and the other one on 09-05-2021 which included several allegations of sexual abuse against the applicant.
While searching the victim’s bedroom to find some clue as to where she was, a handwritten notebook was found. The contents of the notebook stated that when she was in the 4th standard, she was repeatedly subjected to forcible sexual intercourse, rape as well as unnatural sex by the applicant. She was also threatened that if she tells anyone, he will kill her. The notebook also revealed that the wife of the applicant was also involved with him in these acts.
The victim had informed her mother about the acts of forcible sex and unnatural activities while stating that the applicant used to insert his penis in her mouth and used to discharge semen, and that he used to throttle her while committing forcible sexual intercourse. The victim’s father was informed of this by the mother, but they were scared of the applicantas well as future marriage prospects of the victim, which is why the matter was not reported either to the Police or any other member of the family. Due to this, the victim was under depression and was being treated by a psychiatrist.
The applicant and his wife had been arrested and the statement of the victim came to be recorded by the Metropolitan Magistrate under Section 164 of Code of Criminal Procedure and after investigation, a charge sheet was filed. The applicant moved the Special Court for bail under POCSO Act, which was rejected.
Counsel on behalf of the applicant stated that the applicant had been falsely implicated which was apparent from the un-explained delay in lodging the F.I.R. He also submitted that the victim had eloped with her boyfriend, that she had a history of eloping from her house time and again, and that the medical history given by the victim was also strange.
Counsel on behalf of the respondent stated that the applicant had taken advantage of the fact that the victim’s father was in Dubai who had trusted him to look after his family, and that all the illegal activities of the applicant came to light once the notebook was found. It was also contended on behalf of the victim that due to the impact of the acts of the applicant, the victim had turned into a nymphomaniac.
Analysis and Decision:
The Court noted that the role of the applicant’s wife was quite apparent as she had abetted the offences alleged to have been committed by the applicant. The Court also said that the wife was equally guilty as she had held hands of the victim while the applicant committed illicit acts. Her acts fell within the ambit of Section 16 of the POCSO Act punishable by Section 17 of the said Act.
While referring to the medical report, the Court noted that the victim had an old hymenal tear since there could not be any fresh injuries because she had become habitual to sexual intercourse.
The Court held that it was evident that the applicant was not only liable under Section 3(a), 7, and 11 but also liable for punishment under Sections 4, 6, 8, and 12 of the POCSO Act apart from Sections 377, 376, 354, 342, 328, 323, 506 read with 34 of the Penal Code. Further, the Court stated that apart from Section 3(a) and 7, ingredients of clauses (j), (i), (k), (l), (m) and (v) of Section 9 of the POCSO Act were also attracted.
The Court stated that the Guidelines and Protocols — Medico-legal care for survivors/victims of Sexual Violence indicate that children may be accompanied by the abuser when they come for medical treatment which is why the concerned should be aware and screen when abuse is suspected.
The Court held that this was not at all a fit case to admit the applicant to bail since to do so would tantamount to further aggravate the wounds of the victim and it was possible that after his release, the applicant may threaten the victim and her parents. Further, while rejecting the application, the Trial Court was directed to frame a charge at the earliest and proceed with the trial.
[Mehraj v. State of Maharashtra, 2024 SCC OnLine Bom 1207, Order dated 29-04-2024]
Advocates who appeared in this case :
For Applicant — Advocate Sanjeev Kadam, Advocate Sandesh More, Advocate Nikhil Kamble
For Respondent — A.P.P Anamika Malhotra
Buy Code of Criminal Procedure, 1973 HERE
Buy Protection of Children from Sexual Offences Act, 2012 HERE
Buy Penal Code, 1860 HERE
