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Kanjibhai Punjabhai Vaghela vs The State Of Maharashtra on 19 October, 2018

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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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