Sknair 907-ba-1099-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 1099 OF 2018
Kanjibhai Punjabhai Waghela … Applicant
Vs.
State of Maharashtra … Respondent
…
Mr. Milan Desai I/by Mr. T.R. Patel for the applicant.
Mr. R.M. Pethe, APP for the Respondent-State.
…
CORAM : PRAKASH D. NAIK, J.
DATE : 19th OCTOBER, 2018.
P.C.
1. This is an application for bail in connection with C.R. No.
469 of 2017 registered with Wadala T.T. Police Station Under
Section 376, 506 Indian Penal Code and Section 3 of the
Maharashtra Prevention and Eradication of Human Sacrifice and
other Human Sacrifice and other inhuman, evil and Aghori
Practices and Black Magic Act, 2013. The First Information Report
was lodged on 25th November, 2017.
2. Prosecution case is that complainant is aged about 33 years
was studying upto 12 standard she was residing alongwith her
parents. In November, 2015, the complainant and her mother had
visited the house of her sister of relative at their native place. At
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that time, the relative was appraised of illness of complainant’s
mother and her disturbed state of mind. The sister-in-law of the
complainant informed the mother of the complainant about the
applicant who treats such patients with the help of vedic mantras
and rituals. In pursuant to that applicant was called by the
relative of the complainant in her house at Bhavnagar and was
informed about the illness of complainant. The applicant told
them that he would visit their residence to ascertain the actual
cause of illness of the complainant. Subsequently, the applicant
visited the residential premises of the complainant at Sion and
further inspecting the house and reciting some mantras he told the
mother of the complainant that the illness is on account of the
complainant and some physical healing will have to be done. They
were also informed that the uncle of complainant has done some
evil magic upon them and told the mother of the complainant go
out and fetch lemon thereafter told the prosecutrix that he will
have to perform certain rituals. In January, 2016, the applicant
visited the house of the complainant and told her mother to fetch
lemon for which she left the house. Applicant accused then
represented to the complainant that uncle had done genital evil act
and thereafter vouching in the name of Goddess, the accused told
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the complainant that he will have to transfer his sperms into her
body and saying so he further stated that she will have to do as
told to her by him otherwise she would invite the wrath of
Goddess. Thereafter, the accused recited some mantras and
committed sexual intercourse with the complainant. He also
threatened her that if she discloses the incident to any other
person she would invite wrath of Goddess. Hence she did not
disclose the incident to any other persons. After a period of about
two weeks, the accused again visited their house and made false
representation about the evil act of complainant’s uncle and again
committed sexual intercourse with the complainant against her
will. The complainant thereafter started keeping unwell. The
complainant alongwith her parents went to Limbdi Police Station
to register complaint. However, for want of jurisdiction, they were
directed to approach the police station in Mumbai. Subsequently,
the FIR was registered on 25th November, 2017. The applicant
was arrested on 29th November, 2017. Investigation is completed
and the chargesheet is filed.
3. Learned advocate for the applicant submits that the
complaint is lodged belatedly. First incident as alleged by the
complainant had occurred in January, 2016 and the second
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incident had purportedly occurred at the end of the same month.
However, FIR was lodged on 25th November, 2017. There is no
medical evidence to corroborate the alleged act. It is submitted
that the complainant had allegedly approached the police station
at Limbdi and she was directed to approach the Police Station
having jurisdiction. Even thereafter there is lapse of time in
lodging the First Information Report. It is further submitted that
it is difficult to accept that the mother of the prosecutrix went out
of the house to fetch lemon while the accused had committed
sexual intercourse. It is submitted that tenor of the applicant
would infer that FIR was lodged because the complainant was
falling ill and her health condition had deteriorated. It was
believed that due to magic committed by accused the health of
complainant is affected. It is submitted that second incident had
allegedly occurred at the end of January, 2016. The applicant
accused had suddenly without intimation visited the house of the
applicant. It is difficult to believe that he was aware that other
family members were not present in the house when he visited the
house and committed the sexual intercourse. The complainant is a
women aged about 33 years and it is difficult to accept that on
believing the alleged representation she had subjected herself for
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physical relationship. The statement of the witnesses viz. mother
of complainant and the father indicate that they were present in
the house when the alleged incident had occurred and if that is so,
it is difficult to accept that the accused had indulged in physical
relationship with the complainant. The offence under Section 376
of Indian Penal Code is not made out. It is further submitted
investigation is completed and chargesheet is filed.
4. Learned APP submitted that the applicant has committed
serious crime. Specific role has been attributed to him. There is
sufficient evidence to show his involvement in the crime. He had
visited the residence of complainant and committed sexual offence
with her on two occasions. She had also lodged the complaint
with Maharashtra State Women Commission on 5 th November,
2016. Delay in lodging FIR is not a ground for grant of bail. The
applicant has pretended himself to be a person who eradicate evil
while reciting mantras and applicant had sexually assaulted the
victim. He has committed serious crime under the Maharashtra
Prevention and Eradication of Human Sacrifice and other
inhuman, evil and Aghori Practices and Black Magic Act, 2013. It
is further submitted that the statement of the complainant was
also recorded under Section 164 of Code of Criminal Procedure
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which also shows the involvement of the applicant in the crime. It
is further submitted that offence has been registered against the
applicant at Limbdi under the provisions of Gambling Act. It is
submitted that considering the nature of offence and the manner
in which the same was committed by the accused, bail may not be
granted and the application be rejected.
5. I have perused the documents annexed to this application.
The alleged incident had occurred in January, 2016. FIR was
lodged on 25th November, 2017. The complaint was lodged with
the Maharashtra Women Commission on 5th November, 2016.
However, the complaint with the police station was lodged at
Mumbai on 25th November, 2017. It is stated by the complainant
that initially she had approached Limbdi police station for want of
jurisdiction, the police did not register FIR. Even thereafter the
complainant had waited for substantial time to lodge the FIR. The
tenor of statement of the mother of the complainant indicate as if
she is witness to the incident. Learned counsel for the applicant
has submitted that the complaint lodged to Mahila Ayog is not a
part of chargesheet nor any statement of the person from said
Women Commission was recorded during the course of
investigation. The statement of complainant was recorded under
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Section 164 of Code of Criminal Procedure which indicate that she
went to Limbdi Police Station to lodge the report against the
accused alongwith her mother and thereafter came to Mumbai and
then lodged report to Wadala Police Station. It is apparent that
there was substantial delay in lodging the First Information
Report. The complainant is a major women aged about 33 years.
Investigation is completed and the chargesheet has been filed. The
tenor of the complaint indicates about grievance of the
complainant about the sexual assault on her is that she suffers
illness after the alleged act was committed by the accused and
apparently, the complaint was lodged since her health condition
had worsened. Investigation is completed and chargesheet is filed.
6. Taking into consideration of the circumstance and also
considering the fact that applicant is in custody since 29 th
November, 2017 the case for grant of bail is made out.
ORDER
i. Criminal Bail Application is allowed;
ii. Applicant is directed to be released on bail in connection
with C.R. No. 469 of 2017 registered with Wadala T.T. Police
Station on furnishing P.R. Bond in the sum of Rs. 25,000/- with
one or more sureties in the like amount;
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iii. Applicant shall report concerned police station once in a
month on first Saturday of the month between 10:00 a.m. to 12:00
noon till further order;
iv. Applicant shall not tamper with the evidence;
v. Applicant shall attend the trial court regularly on the date of
hearing unless exempted by the Court.
vi. Criminal Bail Application stands disposed off.
( PRAKASH D. NAIK, J. )
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