by father of the victim to the school authorities on 13/02/2016 at 12.17 p.m.
informing them that his daughter had disclosed to them about sexual abuse.
The daughter had also informed to her parents that she had cried for help and
at that stage, she was threatened by the accused. Father had also informed the
school authorities that at the relevant time, teacher had tried to search but the
stranger had fled from the spot. It is further pertinent to note that father had
given the details of the identification of the accused.
7) Learned counsel for the applicant has submitted that the school had not
taken any action and has denied that any of the teacher was informed about
the same and that the school authorities had no knowledge about the said
incident, however, E-mail sent by father of the victim is a clear indication that
the school has failed to take any action and in order to save their reputation
has denied the knowledge about the said incident. There is no reason for the
first informant to falsely implicate the applicant at the cost of dignity, honour
and reputation of her daughter.
8) Section 29 and 30 of the Protection of Children from Sexual Offences
Act, 2012 contemplates as follows:
“29. Presumption as to certain offences – Where a person is
prosecuted for committing or abetting or attempting to commit any
offence under sections 3, 5, 7 and section 9 of this Act, the Special
Court shall presume, that such person has committed or abetted or
attempted to commit the offence, as the case may be unless the contrary
is proved.
30. Presumption of culpable mental state – (1) In any prosecution for
any offence under this Act which requires a culpable mental state on
the part of the accused, the Special Court shall presume the existenceof
such mental state but it shall be a defence for the accused to prove
the fact that he had no such mental state with respect to the act charged
as an offence in that prosecution.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 2436 OF 2016
Abdul Rehman @ Rauj Kasma Shaikh .
V/s.
The State of Maharashtra
CORAM : SMT. SADHANA S. JADHAV, J.
DATED : 8th MARCH, 2017.
1) Heard. This is an application under section 439 of Code of Criminal
Procedure, 1973. Applicant herein is arrested on 15/02/2016 in crime no. 108
of 2016 registered at D. N. Nagar Police Station. Investigation is completed
and charge-sheet is filed against the applicant for offence punishable under
sections 376 (2) (i), 323, 354 (a), (b) 506 (ii) of the Indian Penal Code and
section 4, 8, 12 of Protection of Children from Sexual Offences Act, 2012.
2) It is the case of the prosecution that on 15/02/2016, Mrs Veerlaxmi
Rajesh lodged a report at the police station that she is a mother of 6 year old
girl Ms. 'X'. That her daughter goes to school in a private van. That on
11/02/2016, when she was changing the clothes of her daughter, she found
that there were objectionable stains on her undergarments. She inquired with
child. The child seemed to be scared and did not reply. The mother had taken
her into confidence and had inquired with her and at that time, daughter of the
informant had disclosed that she had been sexually abused during the long
recess of the school by one uncle. The girl seemed to be in a disturbed state of
mind and kept on murmuring in her sleep. On 12/02/2016 also, the same
incident had occurred at the hands of the same person. The parents had noted
the number of the van. At the time when the first informant was recording the
number of the van, the driver had fled from the spot. Thereafter, they had
approached the school authorities and informed about the same.
3) The school authorities had informed the parents that they have no
information about any objectionable conduct of any person on 11th and 12th
February 2016.
4) The statement of the victim was recorded and she has narrated the
trauma which she had undergone at the hands of the present applicant. The
parents of the victim had confronted the applicant and at that time, he had
simply fled from the spot.
5) The learned counsel for the applicant vehemently submitted that the
material on record would not inspire the confidence of the Court as no such
incident has occurred. The learned counsel for the applicant has further
submitted that the survivor had disclosed in her statement that she had
informed about the said incident to one Radhika teacher. That the statement of
Radhika teacher is not recorded by the investigating agency. The school
authorities had called Radhika teacher, she had denied of any such disclosure
by the victim girl. It is also submitted that the place shown by the victim girl
is an open place which can be captured by the CCTV footage and there is no
such incident which has been captured in the CCTV footage and therefore,
according to the learned counsel for the applicant, this is a case of false
implication.
6) The learned APP has drawn the attention of this Court to an E-mail sent
by father of the victim to the school authorities on 13/02/2016 at 12.17 p.m.
informing them that his daughter had disclosed to them about sexual abuse.
The daughter had also informed to her parents that she had cried for help and
at that stage, she was threatened by the accused. Father had also informed the
school authorities that at the relevant time, teacher had tried to search but the
stranger had fled from the spot. It is further pertinent to note that father had
given the details of the identification of the accused.
7) Learned counsel for the applicant has submitted that the school had not
taken any action and has denied that any of the teacher was informed about
the same and that the school authorities had no knowledge about the said
incident, however, E-mail sent by father of the victim is a clear indication that
the school has failed to take any action and in order to save their reputation
has denied the knowledge about the said incident. There is no reason for the
first informant to falsely implicate the applicant at the cost of dignity, honour
and reputation of her daughter.
8) Section 29 and 30 of the Protection of Children from Sexual Offences
Act, 2012 contemplates as follows:
“29. Presumption as to certain offences – Where a person is
prosecuted for committing or abetting or attempting to commit any
offence under sections 3, 5, 7 and section 9 of this Act, the Special
Court shall presume, that such person has committed or abetted or
attempted to commit the offence, as the case may be unless the contrary
is proved.
30. Presumption of culpable mental state – (1) In any prosecution for
any offence under this Act which requires a culpable mental state on
the part of the accused, the Special Court shall presume the existenceof
such mental state but it shall be a defence for the accused to prove
the fact that he had no such mental state with respect to the act charged
as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only
when the Special Court believes it to exist beyond reasonable doubt
and not merely when its existence is established by a preponderance of
probability”.
9) In view of this, in the peculiar facts of the case, this Court is not
inclined to grant bail.
10) Application, being sans merits, stands rejected.
(SMT. SADHANA S. JADHAV, J.)
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