Merely Because DNA Report Does Not Establish Paternity Is No Ground For Release On Bail : Bombay HC Rejects Plea Of Accused In Gangrape Of Minor

 In a well-balanced, well-analysed, well-worded and well-reasoned judgment delivered by a woman Judge named Justice Bharati Dangre of the Bombay High Court in a latest, landmark and laudable judgment titled Vaibhav Bhanudas Ubale Vs The State of Maharashtra in LD VC Dist Bail Application No. 34 of 2020 delivered just recently on July 24, 2020 has very rightly held that merely because the DNA report of a child born after a gang rape does not establish paternity of the accused, it does not mean that the accused can be released on bail. She thus rejected the bail application filed by one Vaibhav Ubale who is accused of raping a minor girl along with two others. A heinous and ghastly offence like gang rape cannot be taken lightly under any circumstances!

To start with, the ball is set rolling in para 1 where it is first and foremost observed that, “The applicant has been arrested in relation to FIR No. 194 of 2018 for the offences punishable under Section 376 of the IPC and Section 3, 4, 5(G), 5(J)(II), 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”). On investigation, charge-sheet vide no. 60 of 2019 has been filed in the Court of District and Special Judge, Pune on 25th September 2019. The accused has been charged under Section 376(d) of IPC along with two other accused persons and also the relevant provisions of the POCSO Act.”

As it turned out, it is then mentioned in this same para 1 ahead about the applicant’s defence that, “The submission of the learned counsel for the applicant has been roped into the said offence without any rhyme and reason. The counsel placed heavy reliance on the DNA report of the child born out of the alleged act of sexual assault which do not trace the applicant as the father of the baby girl. The DNA report according to the learned counsel, sufficiently absolve the applicant of the act of sexual assault on the prosecutrix and since the charge-sheet is now filed, according to the applicant, a case is made out for grant of bail.”

To put things in perspective, it is then mentioned in para 2 that, “With the assistance of the learned counsel for the applicant, I have perused the charge-sheet which has been uploaded and also placed on record in physical form. The charge-sheet consists of a statement of the prosecutrix dated 9th November 2018. The said statement is elaborate one and runs into 4 pages. The said statement is recorded after the prosecutrix delivered a baby girl on 6th November 2018 and since her age at the time of the pregnancy was found to be below 18 years, the Koregaon Park Police station official had made inquiries with her mother. The statement was given by the prosecutrix in presence of her mother and member of the Women Vigilance Committee, Gulshan Arif Shaikh.”

While dwelling on the background and facts, it is then enunciated in para 3 that, “The prosecutrix had narrated her woes and stated that she and her mother were residing separately from her father on account of the frequent fights between the couple. Her mother was incurring the expenditure of the household by doing petty household work in the nearby area. The prosecutrix was pursuing her education in Morris High School Wadgaon Sheri when she was acquainted with one girl Shraddha. She happened to meet her again till both took admission in the same college in XI standard. She also became acquainted with another friend Apurva and it is these two girls who have stated in their statement to the police making reference to the date on which the incident took place.”

While continuing in the same vein and delving deeper, it is then stated in para 4 that, “When the prosecutrix was undergoing her 12th Board examination in February-March 2018 and while her last paper was of subject Geography and the prosecutrix with her two friends were studying together at Shraddha’s house, shew as introduced to the applicant who was residing in the same locality. On the 3rd day, when she was introduced to the applicant, her friends took her to his house. For some reason, the other two female friends left her alone in the company of the applicant and the applicant took advantage of the situation. His two male friends in a pre-planned manner arrived in his house with some drinking and eating stuff. The applicant offered the prosecutrix some drink like Thumbs up, which contained some substance which made her feel sleepy and dizzy. The applicant asked the prosecutrix to rest in the bed-room while her friends returned. It is then alleged that the applicant and his two friends committed rape on her. The prosecutrix had narrated the entire incident in great detail which include the specification about the location of the flat of the applicant and the clandestine manner in which the three friends arrived in his flat. Pertinent to note that this description completely matches with the spot panchnama which forms part of the charge-sheet.”

Be it noted, it is then observed in para 5 that, “Fearing the outcome of the act, the prosecutrix did not reveal the incident or the fact that she was pregnant, to her mother. It was only when she had pain in her stomach on 5.12.2018, her mother took her to the hospital and it was revealed to her that the prosecutrix is pregnant. When the police had arrived, the prosecutrix stated that the mother and the daughter were hesitant to report the incident to police and register an offence. However, one of the police personnel which she has described as ‘Sheikh’ tutored her to give a particular statement and on his instructions, she gave her first statement on 6.11.2018 where she implicated one Sony Tapkir and reported of an incident where she accompanied him in a car and where he established physical relation with her. According to the victim’s statement, she gave the earlier statement on the dictate of Shri Shaikh and even told her mother of the same incident. However, subsequently, she gave a detailed statement on 9.11.2018 in form of a supplementary statement on the basis of which FIR has been filed and charge-sheet has also been presented to the Special Court. The statement of two friends of the prosecutrix, support her version to the extent that they went to flat of the applicant but what happened inside the flat is not known to them. The prosecutrix was below 18 yrs of age at the time when the incident took place. She delivered a baby girl which has been forwarded to an orphanage and is leading her life there. The charge-sheet contain sufficient material against the applicant.”

Finally and perhaps most significantly, it is then held in para 6 that, “The case against the applicant is serious one of committing gang rape by three persons and taking advantage of a situation of a poor helpless victim girl. The applicant has indulged into an act of rape. The mere fact that the DNA report do not support the paternity is not a ground to release the applicant at this stage. There is every likelihood that he will pressurize the victim girl once being released on bail. The fact that he is a young boy itself is not sufficient to release him on bail, in light of the material collected by the investigating agency against him. No case for his release on bail is made out. The application is rejected.”

In conclusion, it must well be said that Justice Bharati Dangre of Bombay High Court has very rightly rejected the bail application of the applicant. Not just this, she has also very rightly given right reasons for doing so. She has rightly ruled that merely because DNA report of a child born after gang rape does not establish paternity of the accused, it cannot be construed to mean that the accused can be released on bail as a matter of right!

It is imperative to state here that in heinous crimes like gang rape, bail should not be given at the drop of a hat! A Judge must always in such cases of gang rape exercise his/her mind to the fullest and only then after weighing all the options should an opinion be formed as it will have a direct bearing on the case and the rape victim would be directly affected by it! Justice Bharati Dangre in this leading case too has also very rightly voiced her serious apprehensions about the applicant misusing his position once out on bail and harassing the victim girl. We see so many cases where the accused after getting bail have even burnt alive the rape victim and so in such cases there should be no question of extending bail to the accused as that could directly endanger the life of the rape victim as also her family! There can be no denying or disputing it!

Sanjeev Sirohi

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