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BA No.622/2024
MHCC020040772024
IN THE COURT OF SESSIONS AT GREATER BOMBAY
BAIL APPLICATION NO.622 OF 2024
Mr. Radheshyam Pannalal Vaishya
@ Gabbar Vaishya
Aged 41 years, Occu. : Vegetable Vendor,
Indian Inhabitant,
R/at. : Room No.12, Kalavati Bhavan
Shantilal Compound, Jawahar Nagar,
Khar (East), Mumbai-400 055.

..Applicant
V/s.
State of Maharashtra
(At the instance of Nirmal Nagar
Police Station, Mumbai in
C.R. No.165/2024).

..Respondent
Appearance :Advocate Mr. O.P. Dubey for the applicant.
APP Mr. R.V. Tiwari for the respondent/State.
Adv. Chittesh Dalmia for intervener/complainant.
CORAM : HHJ SHRI N.G. SHUKLA,
ADDITIONAL SESSIONS JUDGE,
COURT ROOM No. 29.
DATED : 22/03/2024
ORDER
(Dictated and pronounced in open Court)
1.

Applicant/accused who is arrested in Crime No.165/2024 for
the offence punishable under Section 376, 376(2)(N) and 506 of Indian
Penal Code has filed this application for bail under Section 439 of The Code
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of Criminal Procedure. Prosecution filed reply at Exh.2 and Advocate for
complainant filed reply at Exh.4 and the complainant herself filed reply at
Exh.5 and all of them opposed the application for bail.

2.

I have heard learned Advocate Mr. O.P. Dubey for applicant,
Learned APP Mr. R.V. Tiwari for prosecution and Advocate Chittesh Dalmia
for intervener.

3.

It is alleged that, accused is relative of the victim/complainant.

He is residing in the locality where the complainant resides. It is alleged
that accused called the complainant at his house for cleaning the utensils
on 22.12.2023 and committed rape on her and threatened her to not tell
about the incident to anybody. Again on 29.12.2023 and 05.01.2024,
accused committed rape on the complainant. On 09.02.2024, the
complainant started vomiting and her family members took her in private
hospital at Santacruz where her pregnancy was detected. Thereafter,
parents of complainant avoided to lodge report because of defamation in
the society. However, after consulting with the elder relatives, on
25.02.2024, FIR came to be registered against the accused and he was
arrested on the same day.
4.

Learned advocate for accused submitted that, victim is residing
with her parents and brother. Three incidents of rape dated 22.12.2023,
29.12.2023 and 05.01.2024 are alleged in the FIR. There is no allegation
of threats of blackmailing to the complainant by the accused. Learned
advocate argued that, the contents of FIR shows that, physical relations
between complainant and accused are consensual relations. Only after
detecting pregnancy and advise of elder relatives, false FIR is registered.

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No offence under Section 376 of IPC is made out. He argued that, though
the prosecution alleged about lower intellectual/mental condition of the
complainant, it can be considered by both way. Accused had advanced loan
of Rs.1,00,000/- to the brother of victim. So as to avoid repayment of said
loan and to defame the accused in the society, he is falsely implicated.
Accused was at Bhubhaneshwar, Orissa on 29.12.2023. To support this
contention, learned advocate relied on the traveling ticket. He also argued
that, investigation is almost completed. Statement of victim/complainant
can be recorded even after filing charge-sheet. Accused is permanent
resident of Mumbai and ready to abide any condition. Hence, learned
advocate prayed to allow the application.
5.

Learned APP submitted that, victim/complainant is having low
intellectual level. She is not a normal person. Accused was very well
prepared by calling the victim at his house. He repeatedly committed rape
at three times on the victim who is less than 20 years old and accused is 40
years of age. Medical papers is supporting to the contention of victim in
FIR. Investigation is in progress. Statement of victim under Section 164 of
Cr.P.C. is not yet recorded. Accused is relative and residing in the same
locality. If released on bail, accused may give threats or pressurize the
victim and tamper the evidence. Hence, learned APP prayed to reject the
application.
6.

Learned Advocate Chittesh Dalmia for complainant almost
argued in the same manner in support of prosecution. He referred papers of
medical examination of victim on 14.02.2024 and argued that, the victim is
having severe subnormality in intellectual functioning. Only on repeated
questioning by the relatives, the victim had told about the incident. Her
intelligence is not satisfactory. In such circumstances, submission of
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consensual sex cannot be accepted. If released on bail, accused may tamper
the evidence. Hence, he prayed to reject the application. Learned Advocate
relied on following rulings “i.

Unnikrishnan
Rajeevkumar
Bhaskaran
Vs.

State
of
Maharashtra and Anr., 2024 SCC OnLine Bom 264.
ii.

Avinash Machindra Thorat Vs. The State of Maharashtra, 2016
SCC OnLine Bom 13864.
iii.

Vinod Madhukar Bhawsar Vs. The State of Maharashtra and
Anr. In Bail Application No.1158/2021 passed by Hon’ble Bombay
High Court Bench at Aurangabad on 30.11.2021.”
7.

I have considered submissions and perused the record. It is
undisputed fact that, accused is relative and residing in the locality of
victim. As per contents of FIR, accused is married. He is double of age of
victim. As per record, accused called the victim at his house when his wife
was out of the home and committed rape on her. Again he committed rape
on 29.12.2023 and 05.01.2024. The incident of rape was revealed only
when the pregnancy of victim was detected after examination on
09.02.2024.
8.

It appears from say of prosecution and the medical papers that,
the intellectual level of the victim is low and she is unable to give answers
to the questions properly and immediately. The medical examination papers
shows that, the psychiatric recorded severe subnormality in intellectual
functioning of the victim. In view of finding recorded in the medical
examination by psychiatric, submission of consensual sex not at all
acceptable. From the papers of medical examination regarding the rape and
detection of pregnancy as well as allegations in the FIR, it becomes clear
that accused is involved in serious offence of the rape on victim who is not
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mentally normal girl.
9.

This is very serious offence allegedly committed by the relative
of the victim. Investigation is in progress and statement of victim is yet to
be recorded. Though, learned advocate for accused trying to show
advancement of loan to brother of victim but in view of allegations in FIR,
detection of pregnancy on 19.02.2024 and abnormality of the victim, the
contention of advocate for accused about false implication cannot be
accepted at this stage. Mere filing of ticket would not be believable to hold
plea of alibi. If accused released on bail, there is every possibility of
tampering the evidence and threatening and pressurizing the witnesses. For
these reasons, I do not find this fit case to grant bail to accused. Hence, I
pass following order :ORDER
Bail Application No.622/2024 is rejected and accordingly disposed of.

Date : 22/03/2024
(N.G. Shukla)
Additional Sessions Judge,
City Civil and Sessions Court,
Greater Bombay
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER
Name of Typist
Upload date and time
Name of the Judge
: Miss. Suvarna S. Hile
: 1st April, 2024 (At 12.57 p.m.)

H.H.THE ADDL. SESSIONS JUDGE
SHRI N. G. SHUKLA (C.R.No.29)
Date of Pronouncement of Order 22nd March, 2024
Order signed by P.O. on
22nd March, 2024
Order uploaded on
01st April, 2024