IN THE HIGH COURT OF JUDICATURE AT BOMBAY

(CRIMINAL APPELLATE JURISDICTION)

CRIMINAL BAIL APPLICATION NO. OF 2022

DIST: KOLHAPUR

In the matter of Application

for bail U/sec. 439 of Criminal

Procedure Code.

AND
 In the matter of C.R. No. 275

of 2021 registered with

Chandgad Police Station,

District - Kolhapur for the

offences punishable u/s. 354,

376, 506 of the I.P.C. along

with Sections 4, 8 and 12 of

The Protection of Children

from Sexual Offences Act,

2012.

Krushna Shantaram Patil

Age: 36, Occu.: Service,

R/o. Bonjurde, Taluka: Chandgad,

District: Kolhapur.

(Applicant at present Kolhapur

Central Prison)

…APPLICANT

(Orig. Accused)
 V/s.

1. The State of Maharashtra

(C.R. No. 275 of 2021 registered

with Chandgad Police Station, Kolhapur)

2. XYZ,

R/o. Bonjurde, Taluka: Chandgad,

District: Kolhapur …RESPONDENTS

TO,

THE HON’BLE CHIEF JUSTICE AND OTHER

HON’BLE PUISNE JUDGE OF HIGH COURT OF

JUDICATURE AT BOMBAY

HUMBLE APPLICATION OF THE

APPLICANT ABOVE NAMED

MOST RESPECTFULLY SHEWETH :

1. The Applicant, who is the Original Accused in C.R. No.

275 of 2021 registered on 03.10.2021 with Chandgad Police

Station, District-Kolhapur for the offences punishable u/s. 354,

376, 506 of the Indian Penal Code (Hereinafter referred to as

IPC for the sake of brevity) along with Sections 4, 5, 8 and 12

of The Protection of Children from Sexual Offences Act, 2012

(Herein after referred to as POCSO Act for the sake of

brevity), is filing present application u/s 439 of Cr. P.C.

seeking his release on regular bail. Few facts leading to the

rise of present application can be stated in short as follows:

2. The Applicant states and submits that, as stated above

Applicant is the original accused in the aforesaid crime. The

Respondent No. 1 is the State while Respondent No.2 is the

original Complainant/alleged victim. The F.I.R bearing C.R.

No. 275 of 2021 was filed on 03.10.2021 by the Prosecutrix.

It is the case of the complainant that, allegedly, she is 17 years

5 months old (D.O.B. – 12.04.2004), R/o. Bonjurdi, Taluka:

Chandgad, District: Kolhapur and studying in 12 th standard. It

is further alleged that, the complainant is well acquainted with

the present Applicant as he lives in the neighborhood with his

parents and wife and that the present Applicant would

frequently visit the complainant’s home. It alleged in the FIR

that the present Applicant was working in Mumbai for the past

2 years and would visit the village in holidays, however due to

the outbreak of Covid-2019 and lockdown the present

Applicant came back to his village in January 2021. It is

further alleged in the FIR that as the complainant’s school was

closed, she was at home only while her father would leave for

agricultural work early in the morning. It is the case of the

complainant that she lives on the First floor of her house while

her grandparents live on the ground floor and being old aged

they are at home only. It is further contended by the

complainant that, her maternal grandfather, who lived at

Kovad, died on 12.02.2021, hence, her mother went to Kovad.

It is further alleged in the FIR that, on 12.02.2021

complainant’s father left for agricultural work early in the

morning and her brother had also left for his school at Adkur

at around 10:00 in the morning. It is the case of the

complainant that at around 3:00pm the present Applicant

entered the house of the complainant from backside of the

house and allegedly called her to his house by saying that he

has some work and by believing him she went to his house. It

is alleged in the FIR that, the present Applicant took the

complainant on the upper floor, locked the door of the house

from inside and by allegedly threatening to kill her, took her

towards the bed. The complainant allegedly tried to scream but

the present Applicant allegedly covered her mouth with one of

his hands and was removed her black leggings and clothes

with the other hand and forcibly established physical relation

with the complainant. It is the case of the Complainant that she

did not disclose this incident to anyone as she was scared due

the threat given by the present Applicant. The complainant

further alleged in the FIR that on 17.02.2021, her father had

left for agricultural work in the morning and her brother had

left for his school at Adkur at around 10:00am. It is alleged in

the FIR that, at around 2:00pm when the complainant was at

home, the present Applicant entered the house through the

backdoor of the house and told the complainant that he liked

her and asked if she loves him to which the complainant said
no, however he did not leave the house till and when she

screamed loudly he ran away. Allegedly, the complainant did

not tell this to her father as she was scared. It is the case of the

Complainant that on the next day i.e. 18.02.2021 after her

father had left for agricultural work in the morning and her

brother had left for his school, at around 3:00pm when the

complainant was washing clothes in front of her house, the

mother of the present Applicant called the complainant to her

house for some work. It is alleged that at that time when the

complainant went to Applicant’s house, the present Applicant

was present and he asked the complainant if she loves him to

which she replied negatively and the present Applicant

allegedly threatened to kill her parents and her brother. It is

alleged in the FIR that, after the Applicant’s mother left, the

Applicant locked the door and grabbed her and took her

towards the bed. It is further contended that when the

Complainant tried to scream loudly, the present Applicant

allegedly covered her mouth with one hand and further

removed the black leggings and clothes of the Complainant

with the other hand and forcibly established physical relation.

The Complainant further alleges that the Applicant threatened

her by saying that if she tells her parents about this incident, he

would defame her in the whole village, after which the

Complainant went back to her house. It is the case of the

prosecutrix that she did not disclose this incident to any of her

family members and not even to her mother when she came

back on 22.02.2021 due to the alleged threats given by the

present Applicant. It is alleged in the FIR that the present

Applicant went to Mumbai for his work. It is further alleged in

the FIR that on 07.06.2021 the Complainant’s marriage was

fixed with one Dipak Bhairu Kadukar with the consent of her

parents, however as she was allegedly below 18 years of age at

that time due to which she was going to marry him after she

has completed 18 years of age. It is alleged in the FIR that as

the Complainant’s marriage was fixed with Dipak Kadukar, he

would often visit her house and allegedly the present

Applicant’s mother would often look at him and abuse him

which the Complainant could not bear anymore due to which

she told Dipak about the alleged physical relation established

by the present Applicant with the Complainant. It is further

alleged in the FIR that Dipak Kadukar told the parents of

Complainant about the alleged incidents that happened with

the Complainant, pursuant to which they enquired about the

same with the Complainant and she then told them about the

alleged physical relation and threats made by the present

Applicant. Thus, the Complainant along with her parents and

Dipak Kadukar registered a complaint with the Chandgad

Police Station and FIR bearing C.R. No. 275 of 2021 was

lodged against the present Applicant on 03.10.2021. Hereto

annexed and marked as Exhibit “A” is the copy of the

aforesaid F.I.R bearing C.R. No. 275/2021 registered at

Chandgad Police Station, District Kolhapur.

3. The Applicant states and submits that, on the basis of

the FIR, Applicant was arrested and taken into police custody

on 04.10.2021. Thereafter, the Applicant preferred an

application seeking his release on regular bail bearing Bail

Application No. 104/2021 before the Ld. Addl. Sessions

Judge, Gandhinglaj. The Ld. Addl. Session Judge, Gadhingalaj

was pleased to reject the said bail application by order dated

28.12.2021 stating that under section 29 of the POCSO Act

where the offences are under sections 3, 5, 7 and 9 of the

POCSO Act, the Special Court shall presume that such

accused person has committed the offence unless contrary is

proved. Hereto annexed and marked as Exhibit “B(Colly)”

is the copy of the aforesaid bail application and the Order

dated 28.12.2021 in Bail Application No. 104 of 2021.

4. The Applicant states and submits that, on the basis of

the F.I.R, investigation was conducted and on recording

statements of witnesses and collecting medical evidence

pertaining to the offence, charge sheet is filed for the offences

punishable under sections 354, 376 and 506 of the IPC along

with sections 4,8 and 12 of the POCSO Act. Hereto annexed

and marked as Exhibit “C” is the copy of the aforesaid

charge sheet.

5. The Applicant states and submits that, due to the

change in circumstances owing to the filing of charge sheet,

the Applicant then preferred an application for bail in Special

Case No. 29 of 2021 below Exh. 3. After hearing the both the

sides, the Special Judge (POCSO), Gadhiglaj, without

considering the change in circumstances and that the Section 5

of POCSO Act was omitted while filing the charge sheet, was

pleased to reject the Bail Application by order below Exh. 3

dated 06.05.2022. Hereto annexed and marked as Exhibit

“D”(Colly) is the copy of the aforesaid bail application

preferred by the present Applicant and the order dated

06.05.2022 passed by Special Judge (POCSO), Gadhinglaj in

Special Case No. 29 of 2021.

6. The Applicant states and submits that, subsequently the

Applicant had preferred an application under section 439 of

Cr.P.C. in Special Case No. 29 of 2021 below Exh.7 before the

Special Judge, Gandhiglaj stating that his daughter and father

were under treatment and the then 75 year old father of the

Applicant was admitted in the Hospital and it was difficult for

the family to earn livelihood. However, the Ld. Special Judge,

Gandhiglaj, by observing that there is no change in

circumstances and without entering into the merits of the

matter, was pleased to reject the aforesaid application of the

present Applicant by order below Exh.7 dated 18.07.2022.

Hereto annexed and marked as Exhibit “E”(Colly) is the

copy of the aforesaid application below Exh. 7 and the order

passed by the Ld. Special Judge, Gandhinglaj dated

18.07.2022.

7. The Applicant states and submits that, on perusal of the

F.I.R, it can be seen that it is the case of the prosecutrix that

the alleged incident happened on 12.02.2021, 17.02.2021 and

18.02.2021 while the FIR is lodged on 03.10.2021 i.e. after an

inordinate delay of about 7 months and 21 days. The

inordinate delay itself shows that the whole alleged incident is

nothing but a made up and concocted story made only to

harass the present Applicant. On perusal of the statements of

Dipak Kadukar, aged 28 years old, it can be seen that he and

the Complainant met for the first time on 23.02.2021 when the

Complainant was around 16 years old and they developed a

love affair. Further, it can seen that the Complainant told

Dipak Kadukar about the alleged incident on 12.08.2021,

however, it is difficult to believe that Dipak Kadukar kept

silent regarding the alleged incident and did not tell anyone.

On perusal of the statements of the parents of the Complainant,

it can be seen that they were informed about the alleged

incident on 14.08.2021 by Dipak Kadukar and the

Complainant, yet they did not take any proper steps regarding

the same which is difficult to believe. It should be taken into

consideration that it seems incomprehensible as to why Dipak

Kadukar, husband to be of the Complainant and the Parents of

the Complainant would keep silent regarding the alleged

incident. Further as per their statements they did not go to the

Police Station as they were afraid that it would harm the image

of the Complainant however, they further state that the present

Applicant’s mother allegedly started to trouble them without

any reason pursuant to which they decided to register the

complaint in Police Station. Thus, there no reasonable

explanation regarding the delay in lodging the FIR regarding

the offence which shows that the whole incident is an

afterthought and made up story only to harass the present

Applicant and his family due to enmity.

8. The Applicant states and submits that, he has been

falsely implicated in the said offence. The investigation is

complete and the charge sheet is filed wherein it can be seen

that there no conclusive evidence against the present Applicant

regarding the aforesaid offences. The Applicant states and

submits that, on perusal of the medical reports it is evident that

it falls silent on the face of it. The Applicant states and submits

that, the Forensic Medical Examination Report of the alleged

victim/the complainant, shows no injuries on the genitals and

there is no evidence as to application of force or restraint and

that there are no signs of penetrative and/or non-penetrative

assault on the prosecutrix, hence ingredients under section 4 of

The Protection of Children from Sexual Offences Act, 2012

will not be made out.

9. The Applicant states and submits that, in the facts and

circumstances mentioned above the Applicant is filing present

Regular Bail u/s. 439 of Cr. P.C. seeking Regular Bail

Application in connection with C.R. No. 275 of 2021

registered with Chandgad Police Station, District: Kolhapur

for the offences punishable u/s. 354, 376, 506 of the Indian

Penal Code, along with Sections 4, 8 and 12 of The Protection

of Children from Sexual Offences Act, 2012 on following

amongst other grounds which are taken without prejudice to

each other:

GROUNDS

(A) That, the Applicant has been falsely implicated in the

aforesaid crime;

(B) That, the complaint is nothing but a story concocted

by the prosecution and the charges added are nothing

but an afterthought with the ulterior motive to harass

the Applicant;

(C) That, there is an inordinate, unreasonable and

unexplained delay of about 7 months 21 days in

lodging the FIR which shows that the whole incident

is afterthought and made up story only to harass the

present Applicant and his family members;

(D) That, the prosecutrix waited for about 6 months

before informing about the alleged incident to Dipak

and her parents. There seems to be no reasonable

explanation as to her absence of reaction and/or

delay in informing the family;

(E) That, after the complainant had informed her parents

and Dipak about the alleged incidents, it is beyond

understanding as to why they did not take any steps

to confront the present Applicant or his family or any

other authority in their village;

(F) That, it seems incomprehensible as to why the

prosecutrix, her parents and Dipak would keep silent,

being the family of the prosecutrix, for such a long

period before registering the complaint;

(G) That, as per the statements of parents of the

Complainant and Dipak they did not go to the Police

Station as they were afraid that it would harm the

image of the Complainant however, they further state

that the present Applicant’s mother allegedly started

 to trouble them without any reason pursuant to which

they decided to register the complaint in Police

Station;

(H) That, on perusal of statements of Dipak Kadukar,

aged 28 years old, it can be seen that he and the

Complainant met for the first time on 23.02.2021

when the Complainant was around 16 years old and

they developed a love affair which shows that even if

the Complainant was not 18 years old she was aware

about relationships and was mature enough;

(I) That, it is alleged that the incidents happened in the

afternoon i.e. in daylight, however no one saw the

present Applicant enter or exit the house of the

Complainant;

(J) That, as per the complainant’s case the alleged

incidents dated 12.02.2021 and 18.02.2021 happened

in the afternoon in the present Applicant’s house and

alleged incident dated 17.02.2021 happened in the

afternoon in the Complainant’s house, wherein she

 had screamed and shouted loudly, however, it is

incomprehensible as to how none of the neighbors

heard the Complainant’s scream or even saw

anything suspicious;

(K) That, on perusal of charge sheet it can be seen that

the statements of any of the neighbors of the

Complainant and/or present Applicant are not

recorded and only the statements of interested

witness are recorded during the investigation;

(L) That, on perusal of statements of the witness it can

be seen that neither anyone has actually seen the

accused going in or out of the house of the

Complainant nor they have seen the Complainant

going in or out of the house of the present Applicant

on the days of the incidents;

(M) That, there is absolutely no evidence regarding the

involvement of the present Applicant in any way in

the alleged incidents;

(N) That, on careful perusal of the FIR it can be seen that

it is stated by the Complainant that her grandparents

stay on the ground floor and as they are old they stay

at home only. Considering this fact, during the

alleged incident dated 17.02.2021 when the

complainant allegedly shouted and screamed loudly,

it is obvious that the grandparents of the complainant

would have heard something. However, their

statements are not recorded and the whole

investigation is silent regarding the same;

(O) That, the Panch witness have recorded the

Description of Place of Occurrence of alleged

incident in the Crime Details Form in Charge Sheet,

wherein the Complainant herself showed them the

place of occurrence of alleged incident. On perusal

of the same it can be seen that there was no bed as

alleged by the complainant in the room of the present

Applicant and that it has been clearly mentioned that

 nothing suspicious was found or recovered from the

place of occurrence of the alleged incidents;

(P) That, the forensic medical report of the alleged

victim/complainant shows no injuries on the genitals

of the complainant and is silent regarding the signs

of penetrative or non penetrative sexual assault hence

ingredients under section 4 of The Protection of

Children from Sexual Offences Act, 2012 of will not

be made out;

(Q) That, there is a dispute between the Applicant's

family and Pundlik Patil who is husband of Police

Patil of village Bonjurde. The dispute is regarding

agricultural land and open space situated at back side

of the house of applicant regarding which the cousin

sister of the Applicant has filed a written complaint

against Pundlik Patil and his wife Madhuri Pundlik

Patil with alleging that, they are misusing their

power for their personal benefits. Thereafter Pundlik

Patil tried to pressurize the family of the Applicant

 by sending the notice through his wife. Thus, by

working hand in glove the complainant lodged this

false case with concocted story;

(R) That, there is no direct or indirect evidence regarding

the involvement of the present Applicant in the

alleged incidents;

(S) That, the investigation is complete, charge sheet is

filed and no fruitful purpose would be served

keeping applicant behind the bar;

(T) That, nothing incriminating has been recovered at the

instance of the present Applicant;

(U) That, the Applicant is the only earning member of

the family;

(V) That, the Applicant has no criminal antecedents;

(W) That, the Applicant will not hamper or tamper with

the prosecution evidence nor will abscond if released

on bail;

(X) That, bail is the rule and jail is the exception;

 (Y) That, if the Applicant is released on bail, he is ready

to obey any conditions or restrictions imposed by the

Hon’ble High Court;

(Z) That, the Applicant will not jump the bail or will not

flee from the trial and he is ready to co-operate

investigating authority.

10. The Applicant craves leave to add to, alter, amend,

delete and/or modify any of the foregoing paras and

grounds as and when found necessary.

11. The Applicant has not filed any other Appeal,

Application, Revision or petition either in this Hon’ble

Court or in the Hon’ble Supreme Court of India

touching the subject matter of this application ever

before except mentioned herein.

12. THE APPLICANT THEREFORE PRAYS THAT:

a) That this Hon’ble High Court by exercising

power u/s. 439 of Cr. P.C. be pleased to release

the Applicant on regular Bail in connection with

C.R. No. 275 of 2021 registered with Chandgad

 Police Station District: Kolhapur, for the offences

punishable u/s. 354, 376, 506 of the Indian Penal

Code, along with Sections 4, 8 and 12 of The

Protection of Children from Sexual Offences Act,

2012 on such terms and conditions as this

Hon’ble High Court may deem fit and proper;

b) That the Applicant is in Judicial Custody and

affidavit in support of Bail Application may be

dispensed with;

c) For such other and further orders as this Hon’ble

Court may deem fit and proper in the facts and

circumstances of the present case;

AND FOR THIS ACT OF KINDNESS AND

JUSTICE THE APPLICANT AS IN DUTY BOUND

SHALL EVER PRAY.

Place: Mumbai

Date: 29/08/2022 (UMESH R. MANKAPURE)

Advocate for the Applicant

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

(CRIMINAL APPELLATE JURISDICTION)

CRIMINAL BAIL APPLICATION NO. OF 2022

DIST : KOLHAPUR

Krushna Shantaram Patil …APPLICANT

(Orig. Accused)

V/s.

The State of Maharashtra and Anr.

(C.R. No. 275 of 2021) …RESPONDENTS

INDEX

Sr. Exh. Particulars of documents Pages

No.

1. ----- Synopsis

2. ----- Memo of the Application

3. “A” Copy of F.I.R bearing C.R. No.

275/2021 registered at Chandgad

Police Station

4. “B”(Colly) Copy of the Bail Application No.

104 of 2021 along with Order

 dated 28.12.2021 in Bail

Application No. 104 of 2021.

5. “C”
Copy of the Charge Sheet.
(Colly)

6. “D”
Copy of the Bail Application and
(Colly)
Order passed below Exh.3 dated

06.05.2022 in Special Case No. 29

of 2021

7. “E”
Copy of the Bail Application and
(Colly)
the Order passed below Exh.7

dated 18.07.2022 in Special Case

No. 29 of 2021

LAST PAGE NO.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

(CRIMINAL APPELLATE JURISDICTION)

CRIMINAL BAIL APPLICATION NO. OF 2022

DIST: KOLHAPUR

Krushna Shantaram Patil …APPLICANT

(Orig. Accused)

V/s.

The State of Maharashtra and Anr.

(C.R. No. 275 of 2021) …RESPONDENTS

I. S Y N O P S I S

1. The Applicant, who is the Original Accused in C.R. No.

275 of 2021 registered with Chandgad Police Station,

District-Kolhapur for the offences punishable u/s. 354,

376, 506 of the Indian Penal Code along with Sections

4, 5, 8 and 12 of The Protection of Children from Sexual

Offences Act, 2012 is filing present application u/s 439

of Cr. P.C. seeking his release on regular bail.

III. POINTS TO BE URGED:-

(A) That, there is an inordinate, unreasonable and

unexplained delay of about 7 months 21 days in

lodging the FIR which shows that the whole incident

is afterthought and made up story only to harass the

present Applicant and his family members.

(B) That, the forensic medical report of the alleged

victim/complainant shows no injuries on the genitals

of the complainant and is silent regarding the signs

of penetrative or non penetrative sexual assault hence

ingredients under section 4 of The Protection of

Children from Sexual Offences Act, 2012 of will not

be made out.

ACTS TO BE REFERRED :-

(1) CRIMINAL PROCEDURE CODE

(2) INDIAN PENAL CODE.

(3) THE PROTECTION OF CHILDREN FROM

SEXUAL OFFENCES ACT, 2012.

AUTHORITIES TO BE CITED :

Nil at the present.

Place: Mumbai

Date: 29/08/2022

(UMESH R. MANKAPURE)

Advocate for the Applicant