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2007 DIGILAW 951 (BOM)

Ashok Bapurao Thorat v. State of Maharashtra

2007-07-13

C.L.PANGARKAR

body2007
1. Heard. 2. This is an application under Section 438 of Code of Criminal Procedure. 3. One Ku.Disha was residing by the side of the house of the present applicant. Disha belongs to Mahar caste while present applicant belongs to Dhangar caste. Disha's father runs grocery shop and is also a money lender. Since they were neighbours and applicant used to go to the shop of the father of complainant Disha, they developed intimacy. They fell in love. The applicant/accused assured to marry her. As a result of this, it is alleged that the accused and the complainant have had sexual intercourse. It is also alleged that they were having sexual intercourse repeatedly for a long period of two years i.e. from the year 2005. Subsequently, the complainant came to know that the applicant is getting engaged with another girl. She requested the applicant to marry her but applicant said that he would not marry her since she belongs to a lower caste. The complainant therefore lodged a report with police with allegations that the accused had intercourse with her under a promise of marriage. The police registered the offence under Section 376 of Indian Penal Code and 3(i)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. 4. Learned counsel submitted that from the contents of F.I.R. itself it is clear that the applicant and the complainant had fallen in love with each other and it is because of that love that they have had sexual intercourse. He submitted that even assuming that there was no consent still intercourse between the applicant and the accused was not on the ground that the complainant belongs to Schedule Caste or Scheduled Tribe. He submitted that they were simply a man and woman and because they fell in love, there was a sexual intercourse between them. It appears from the contents of the F.I.R. that the applicant and the accused have had sexual intercourse on number of occasions. They were even arrested by police once when they were found in a hotel. It is apparent, therefore, that even the complainant had gone with the accused to the hotel voluntarily. Therefore, it is further apparent that the complainant was not subjected to intercourse being a woman of Scheduled Caste or Scheduled Tribe. They were even arrested by police once when they were found in a hotel. It is apparent, therefore, that even the complainant had gone with the accused to the hotel voluntarily. Therefore, it is further apparent that the complainant was not subjected to intercourse being a woman of Scheduled Caste or Scheduled Tribe. Since the applicant and the complainant were in love with each there could be no intention prima facie of the applicant to dishonour the complainant or to outrage her modesty. Since such an allegation is not there, apparently an offence under Section 3(i)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act is not made out. 5. The learned counsel for the applicant relied on the decision of the Supreme Court in 2006(3)SCC 771 (Dinesh ..vs. State of Rajasthan) wherein following observations are made - 15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the scheduled castes or the Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities act been applicable then by operation of law, the sentence would have been imprisonment for life an fine. In view of this, prima facie it appears to me from the contents of F.I.R. that no offence under Section 3(i)(xi) of the Scheduled Castes and Scheduled Castes (Prevention of Atrocities ) Act is made out. 6. The entire report itself shows that the complainant was more than 18 years of age at the time of alleged sexual intercourse. It also prima facie shows that she was consenting party. In view of this, I find that anticipatory bail should be granted to the present applicant/accused. In view of this, I pass following order. In the event of arrest in Crime No.158 of 2007 of Police Station Yeotmal, the applicant be released on his entering into P.R. Bond of Rs.5000/- with one surety in the like amount. The question as to whether the F.I.R. should be quashed or not, would be decided separately.