Mumbai, April 1, 2024 – The Additional Sessions Judge Shri N.G. Shukla, presiding over Court Room No. 29 at the Greater Bombay Sessions Court, has rejected the bail application of Radheshyam Pannalal Vaishya, also known as Gabbar Vaishya, a 41-year-old vegetable vendor. Vaishya was arrested in connection with Crime No. 165/2024 registered at Nirmal Nagar Police Station, Mumbai, for allegedly raping his relative and threatening her.
Vaishya is accused of offences punishable under Sections 376 (rape), 376(2)(N) (repeated rape), and 506 (criminal intimidation) of the Indian Penal Code. He sought bail under Section 439 of the Code of Criminal Procedure. The prosecution, the complainant, and an intervener vehemently opposed his release.
The prosecution’s case, as presented by APP Mr. R.V. Tiwari, and supported by Advocate Chittesh Dalmia representing the complainant, alleges that the accused, a relative residing in the same locality as the victim, called her to his house on December 22, 2023, under the pretext of cleaning utensils, and committed rape. He allegedly repeated the act on December 29, 2023, and January 5, 2024, and threatened the victim against disclosing the incidents.
The matter came to light on February 9, 2024, when the complainant experienced vomiting, leading her family to take her to a private hospital in Santacruz where her pregnancy was detected. Initially, the complainant’s parents hesitated to file a police report due to concerns about societal defamation. However, following consultations with elder relatives, an FIR was finally lodged against Vaishya on February 25, 2024, and he was arrested on the same day.
Advocate Mr. O.P. Dubey, representing the applicant, argued that the FIR suggested a consensual relationship between the complainant and the accused, claiming that the false FIR was registered only after the pregnancy was discovered and upon the advice of elder relatives. He further contended that no offence under Section 376 of the IPC was made out.
Dubey also raised questions about the complainant’s alleged “lower intellectual/mental condition,” suggesting it could be viewed from different perspectives. He further claimed that the accused had lent Rs. 1,00,000 to the victim’s brother, implying a potential motive for false implication to avoid repayment and defame the accused. To support his alibi for one of the alleged incidents, Dubey presented a travel ticket indicating Vaishya’s presence in Bhubhaneshwar, Orissa, on December 29, 2023. He also argued that the investigation was nearly complete and that the victim’s statement could be recorded even after the charge-sheet was filed. Asserting that Vaishya was a permanent resident of Mumbai and willing to abide by any conditions, Dubey urged the court to grant bail.
However, the prosecution and the complainant’s counsel strongly countered these arguments. APP Tiwari emphasized the victim’s “low intellectual level” and argued that she was not a “normal person.” He highlighted the accused’s calculated actions in calling the young victim (under 20 years of age, while the accused is 40) to his house and repeatedly raping her. He pointed to medical papers supporting the victim’s account in the FIR and stressed that the investigation was ongoing, with the victim’s statement under Section 164 of the Cr.P.C. yet to be recorded. Given the accused’s familial relationship and proximity of residence, the prosecution argued a strong possibility of him threatening or pressurizing the victim and tampering with evidence if released.
Advocate Dalmia echoed these concerns, referring to the victim’s medical examination on February 14, 2024, which reportedly indicated “severe subnormality in intellectual functioning.” He argued that the victim only disclosed the incidents after repeated questioning by relatives, emphasizing her unsatisfactory intelligence level, thus making the claim of consensual sex untenable. He also cited several rulings to support the rejection of bail in such cases, highlighting the potential for evidence tampering.
After considering the submissions and perusing the record, Judge Shukla sided with the prosecution and the complainant. The court noted the undisputed fact that the accused was a relative residing in the victim’s locality and that he was married and twice the victim’s age. The FIR’s contents, indicating the accused calling the victim to his house while his wife was away and repeatedly raping her, were also taken into account. The timing of the disclosure, only after the detection of pregnancy on February 9, 2024, was also significant.
Crucially, the court highlighted the medical evidence presented by the prosecution, which indicated the victim’s low intellectual level and “severe subnormality in intellectual functioning.” Based on this medical finding, Judge Shukla deemed the submission of consensual sex “not at all acceptable.” The court concluded that the medical examination regarding the rape and pregnancy, along with the allegations in the FIR, clearly implicated the accused in a “serious offence of the rape on victim who is not mentally normal girl.”
Judge Shukla emphasized the gravity of the alleged crime, particularly given the familial relationship between the accused and the victim. He also noted that the investigation was still in progress and the victim’s statement was yet to be formally recorded. While acknowledging the accused’s attempt to present a loan transaction as a motive for false implication, the court found it unconvincing at this stage, considering the allegations, the pregnancy, and the victim’s mental condition. The presented travel ticket for the alleged date of one incident was also deemed insufficient to establish an alibi at this stage.
Ultimately, the court concluded that releasing the accused on bail presented a significant risk of him tampering with evidence and threatening or pressurizing witnesses. Consequently, Judge Shukla found it “not a fit case to grant bail” and rejected Bail Application No. 622/2024. The order was pronounced in open court on March 22, 2024, and officially uploaded on April 1, 2024. This case underscores the judiciary’s sensitivity towards the vulnerability of victims with intellectual disabilities in cases of sexual assault and the stringent approach taken to protect them and ensure a fair investigation.