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CR.MA/8745/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8745 of 2011
=========================================================
SACHIN
@ SAHIL SURESHBHAI THAKORE - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
DEVANG J JOSHI for
Applicant(s) : 1,
MS KRINA CALLA, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date : 22/07/2011
ORAL ORDER
This is an application
under Section 439 of Criminal Procedure Code praying for regular
bail in connection with the offence registered with Mehmedabad
Police Station, District Kheda vide C.R.No.I-86 of 2011 for the
offences punishable under 363, 366 and 376 of the Indian Penal Code
and under Section 3(1) sub-clause (xii) of the Scheduled Case and
Scheduled Tribe (Prevention of Atrocity) Act.
Case of the prosecution
prima facie appears to be that the accused-applicant abducted
prosecutrix who happens to be daughter of first informant on
10.04.2011. Prosecution has alleged that applicant-accused after
enticing prosecutrix eloped from the village and stayed outside upto
16.04.2011. It is the case of the prosecution that during the
interregnum period the accused-applicant had forcible physical
relations with the prosecutrix and thereby committed offence under
section 376 of the IPC.
I have heard Mr.Devang J.
Joshi, learned advocate for the applicant and Ms.Krina Calla,
learned APP for the State.
Perused papers of the
charge sheet. Taking into consideration entire back ground in which
incident has occurred, I am persuaded to exercise my discretion in
favour of the accused-applicant taking into consideration following
aspects :-
(i)
It is clear from the history given by the prosecutrix before the
Doctor at the time of medical examination on 16.04.2011 that she was
very much in love with the applicant accused. Both of them had
feelings and intimacy for each other. She has further stated that on
her own free will, she accompanied accused. She has also stated that
with her permission and consent they had physical relationship. The
medical certificate dated 16.4.2011 and statement of the
prosecutrix dated 16.4.2011 speaks for itself.
(ii)
On the date of incident, she was 16 years and 2 months old and the
applicant accused was about 21 years of age.
(iii)
It is also very clear from the papers and charge sheet and the
statement of the prosecutrix that after eloping on 10.04.2011, they
moved around at different places till 16.04.2011.
(iv)
Investigation is over and charge sheet has been filed.
This Court while deciding
Criminal Misc. Application No.7697 of 2011 has observed as under :-
“6.
Offence of this nature are required to be considered from the view
point of following facts and circumstances:-
(1)
Was the accused in a position to influence the girl and take
advantage of her inferior position such as that the girl being in
service under the accused or the girl being under some obligation of
the accused ?
(2)
Is the relationship between the accused and the girl that of an
employer and an employee or that of a teacher and a student or that
of a person in authority and a subordinate or that of a police
officer and a citizen who is required to be protected by the former?
(3)
There may not be any relation whatsoever between the accused and the
girl and it may be that the accused might be taking the advantage of
the situation that existed at the time of the incident.
(4)
The respective ages of the accused and the girl. Is the accused
fairly advanced in age and the girl is comparatively of younger age
?
(5)
Was the girl forcibly raped? Were there any marks of injury on the
girl or the person of the accused?
(6)
The accused and the girl being in the same age groups say teenagers
or in their early twenties might have come nearer on account of
natural physical attraction towards each other. In such a situation
has the boy (I.e. accused) become prey to temptation of indulging in
unlawful sexual activity? And is there no element of force in such
unlawful sexual activity?
7.
If the case falls in the last category i.e. no.6 then it does not
require to be treated on par with the cases of sexual offences
narrated in the above mentioned 1 to 5 categories. Present case
falls in the last category.”
In this view of the
matter, I am persuaded to exercise my discretion in favour of the
accused applicant. Under the circumstances, accused-applicant is
ordered to be enlarged on regular bail in connection with offence
registered with Mehmedabad Police Station, District Kheda vide
C.R.No.I-86 of 2011 on executing a bond in the sum of Rs.15,000/-
(Rupees fifteen thousand only) with one surety of the like amount to
the satisfaction of the lower Court and subject to the conditions
that he shall :
(a)
not take undue advantage of his liberty or misuse his liberty;
(b)
not act in a manner injurious to the interest of the prosecution;
(c)
surrender passport, if any, to the lower court within a week;
(d)
not leave the State of Gujarat without prior permission of the
Sessions Judge concerned;
(e)
mark presence at the concerned police station once in a month
between 10.00 a.m. and 2.00 p.m.
(f)
furnish the present address of his residence to the I.O. and also to
the Court at the time of execution of the bond and shall not change
the residence without prior permission of this Court;
(g)
shall not enter into the Dist.Kheda and shall not try to meet
prosecutrix at any point of time or try to approach any of the
family members of the prosecutrix.
(h)
The Authorities will release the applicant only if not required in
connection with any other offence for the time being.
If breach of any of the
above conditions is committed, the Sessions Judge concerned will be
free to issue warrant or take appropriate action in the matter.
Bail bond to be executed
before the lower court having jurisdiction to try the case.
It
goes without saying that any observations touching the merits of the
case are purely for the purpose of deciding the question of grant of
bail and shall not be construed as an expression of the final
opinion in the main matter.
Rule
is made absolute to the aforesaid extent. Direct service is
permitted.
(J.
B. PARDIWALA, J.)
kks
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