2024:BHC-AUG:9176 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

923 BAIL APPLICATION NO. 2151 OF 2023 Ashfak s/o Jafar Shaikh Age 23 years, Occ. Labour R/o. Sonari, Tq. Himayatnagar District Nanded ...Applicant versus

1. The State of Maharashtra Through its Investigating Officer Himayatnagar Police Station Nanded, district Nanded

2. XYZ (address given in closed envelope) ...Respondents ...

Advocate for Applicant : Mr. Manpreet Ajeet Singh Granthi APP for Respondent No.1: Mr. Mukesh K. Goyanka Advocate for Respondent No.2 : Mr. Anand Dale …..

CORAM : SANJAY A. DESHMUKH, J.

DATED : 22nd FEBRUARY, 2024.

ORAL JUDGMENT:-

1. This is an application for granting bail under Section 439 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”). The applicant is arrested in connection with crime No. 179 of 2023 registered with Himayatnagar police station, district Nanded for the offences punishable under Sections 376(2) (j), 452, 342, 506 of the Indian Penal Code (for short I.P.C.), under Section 4 of Protection of Children From Sexual Offences Act, 2012 (for short “POCSO Act”)

and under Section 3(1)(w)(i), 3(1)(w) (ii) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act (for short “Atrocities Act”).

2. It is averred in the report by the victim girl child, who was 15 years old at the relevant time that on 24.8.2023, she was at her house. At about 11.00 a.m. her sister went to the school. At that time, the applicant entered into her house. She questioned him as to how he had come there. At that time, the applicant said her that he like her. He threatened her that if she makes hue and cry, he will eliminate her. He took out a razor and put it on her neck. She was frightened. He again threatened her that if she makes hue and cry, he will eliminate her. The applicant latched the door of front room. Then he latched the door of internal room and committed sexual intercourse with her, by using condom. At that time, sister of the victim girl came there and pushed the door forcefully. She succeeded in opening the door, as the door was not properly latched. She entered into the first room. The victim girl opened the door of internal room. At that time, the applicant again caught hold of her hands and threatened her that if she tells that incident to anybody he will see her. She was frightened but she did not disclose that fact to Sagar Mama, Anil Kaka, Raju Mama etc. who were outside of the house. Thereafter, she went to attend the examination in the school. Thereafter, her father came to the house, went to her school to fetch her to the house, she told that incident to him. She came to know that the applicant was caught hold by the people gathered there and called the police. He was handed over to the police. The report was lodged on the same day.

3. Learned advocate for the applicant submitted that it is a case of love affair between the applicant and the victim girl. Though it is alleged that the applicant was caught hold by the neighbors immediately after the incident, a razor and a contraceptive used were seized from another place which falsifies the prosecution’s story. He further submitted that the applicant has not committed alleged aggravated sexual assault but it was consensual sex. He therefore, prayed for granting bail.

4. Learned advocate for the applicant is relying upon the following authorities:-

I) Imran Iqbal Shaikh vs The State of Maharashtra and another (bail application No. 997 of 2022, decided on

26.4.2023), in para 4, it is observed as under:-

“4. It is true that the victim is a child within the meaning of Section 2(d) of the POCSO Act. The Applicant was also a young boy of 22 years of age at the time of the incident. The statement of the first informant prima facie indicates that the relationship was consensual. It needs to be noted that the POCSO Act has been enacted to protect children from offences of sexual assault, sexual harassment etc., and contains stringent penal provision