Nisar @ Babu Abdulla Shaikh v. The State Of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO.637 OF 2016 Nisar @ Babu Abdulla Shaikh ...Applicant

Versus

The State of Maharashtra

...Respondent

...

Mr. Prashant S. Hagare for the Applicant.

Mr. H.J. Dedhia, APP for the Respondent -State. CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED : 1st OCTOBER, 2016 P. C. :

This is an application for bail filed by the aforesaid accused in special case No.96 of 2015 pending on the file of the learned Additional Sessions Judge, Baramati. The said case arises from C.R. No.217 of 2015 registered with Yavat Police Station, Taluka-Daund for offences punishable under sections 376 and 504 r/w 34 of the IPC and sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012.

2.

The learned counsel for the Applicant has submitted that apart from the statement of the victim there is no incriminating material to show the involvement of the Applicant in the said crime. He has further stated that no test identification parade was held and 1/4

that his mobile phone was not recovered in the course of the investigation. He has further submitted that there are discrepancies in the statement of the Manager of the Hotel and the father of the victim as regards the time at which the victim had returned home. He has further submitted that the co-accused Yakub was granted bail by Additional Sessions Judge, Baramati and another co-accused Heena was granted bail by this Court and considering this aspect the Applicant is entitled for bail on the ground of parity. 3.

The learned APP for the Respondent -State submits that the victim is a 13 years old girl and her statement prima facie reveals that the Applicant had taken undue advantage of her and had sexually exploited her. He further submits that there is no discrepancy as regards the time at which the victim had returned home. He submits that statement of the victim clearly shows that she had left the hotel at

6. a.m. and returned home by 9.00 a.m. and minor discrepancies, if any, cannot be considered at this stage. He further submits that the Applicant herein is the main accused and the role played by the Applicant is not the same as of the other accused and as such he is not entitled for bail on the ground of parity.

4.

I have perused the records and considered the submissions 2/4

advanced by the learned counsel for the Applicant and the learned APP for the Respondent -State.

5.

The records prima facie indicate that the victim is a minor girl, who is barely 13 years of age. A perusal of the FIR lodged by the victim prima facie reveals that she was friendly with co-accused Yakub. On 21.7.2015 during afternoon hours the co-accused Yakub called her to Vaibhav Theater at Hadapsar to meet one of his friends. She went to the Vaibhav Theater at Hadapsar but she did not find the friend of Yakub. She phoned Yakub and told him that she could not find his friend near Vaibhav Theater. Said Yakub told her to give the phone to any person nearby so as to give direction or address of his friend. She gave the phone to the Applicant, a Riksha driver, who was present near Vaibhav Theater. There was some conversation between Yakub and the Applicant.

Thereafter the Applicant told her that Yakub-co-accused had called her near Shiv Shambho Hotel. Instead of taking her to the said hotel he took her to Shiv Shakti hotel. The Applicant herein offered to help her to find the friend of said Yakub. The Applicant further told her that he would book a room in the hotel and that she could stay in the said room and return home the next day.

and sexually abused her. On the next day he gave her some money and told her to return home.

6.

The FIR prima facie reveals that the Applicant herein was involved in sexually abusing the victim, who was barely 13 years of age and was a 'child' within the meaning of section 3 of the Protection of Children from Sexual Offences Act, 2012. The victim was medically examined. The medical report also prima facie reveals that there was inflammation over fourchette, which fact also prima facie substantiates the contention of the victim that she was sexually abused. The discrepancies pointed out by the learned counsel for the Applicant regarding the time at which she met the Applicant and the time at which she returned home, in my considered view cannot be considered at this stage. The Applicant is also not entitled for bail on the ground of parity as the role attributed to the Applicant is different from the role attributed to the co-accused Yakub and Heena. 7.

Considering the gravity of the offence and also considering the fact that the evidence of the victim is yet to be recorded, in my considered view, the Applicant is not entitled for bail. Hence, the application is dismissed.

(ANUJA PRABHUDESSAI, J.) 4/4