1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1271 OF 2010 Pandurang S/o.Sopan Jaybhay, Age-47 years, Occu-Agriculturist/ Business, R/o.Durgaon, Tq.Karjat, Dist. Ahmednagar APPLICANT VERSUS 1. The State of Maharashtra, 2. Superintendent of Police, Ahmednagar, Tq. And Dist. Ahmednagar. RESPONDENTS Ms.S.S.Jadhav, learned counsel for applicant. Mr.B.V.Wagh, learned counsel for respondents. (CORAM : A.V.POTDAR, J.) DATE : 15/04/2010 PER COURT : 1. By the present application, the applicant has approached this Court for his release on anticipatory bail in the event of his arrest in connection with CR No.228/2009, registered in Karjat Police Station of Dist. Ahmednagar, for the alleged offence punishable u/s. 376, 452, 506 of IPC. 2. This is the second round of litigation after the first anticipatory 2 bail application of the applicant was rejected by this Court vide order dated 16/02/2010. As according to the applicant, now the charge sheet is filed u/s. 299 of The Cr.P.C. in connection with this offence and this is the change in circumstance and considering the evidence collected during the investigation while filing the charge sheet, the present application is filed, and anticipatory bail is claimed. 3. Heard learned counsel for applicant, followed by the submissions of learned APP for State. 4. Reliance is placed by the counsel for applicant in the matter of Bharat Chaudhary versus State of Bihar, reported in 2003, AIR SCW 5092, in which it is observed in para no.7 and 11 that in change in circumstances, the Court has power to grant anticipatory bail in non bailable offences, even when the cognizance is taken or charge sheet is filed. Thus, it is made clear that second anticipatory bail application can be filed, but in the given circumstances of an individual case, it is the discretion of the Court, whether to grant anticipatory bail or not. Thus one fact is clear that even after rejection of first anticipatory bail application, second anticipatory bail application is maintainable, and this legal position is no more require further discussion. 5. At the outset, during the course of submissions across the bar, my attention is drawn towards the facts disclosed in the complaint about the alleged offence took place in the night of 18/11/2009, 3 around 11.00 p.m., wherein there are allegations against the present applicant that he forcibly entered at the residential premises of complainant and sexually ravished her. On the basis of statement of complainant and as at that stage, only the complaint was lodged, and the investigation was at preliminary stage, for the reasons recorded in para no.6 of the application no.474/2010, the application for anticipatory bail was rejected by this Court. 6. While arguing the present anticipatory bail application, my attention is drawn towards the medical evidence collected during the investigation and i.e. particularly by examination of the complainant/ prosecutrix on the very next day, at around 3.00 p.m., which discloses that at the time of medical examination of the prosecutrix, she has made it clear that after the alleged incident, she has not taken bath, but only changed the clothes on her person, which were at the time of alleged incident. Attention of the Court is drawn towards the notes of medical examination, which shows that no evidence of external injuries seen over her thighs, buttocks, abdomen, chest, neck or any other parts of the body. Further attention is drawn towards the fact that there is no evidence of external injuries over external genitalia, pubic hairs, but not matted, no evidence of foreign hair. No evidence of any injury over vaginal wall or cervix. No evidence of any discharge from vagina or cervix, or no evidence of ulcer or cervix. By pointing out this fact, it is tried to urge across the bar that man may lie, but the circumstances may not. In case of forcible sexual ravishment, there shall not be the 4 result of medical examination as disclosed from the papers of medical examination of the prosecutrix, which took place immediately within 24 hours when the prosecutrix have not taken bath after the alleged incident. It is to be noted that the age of the prosecutrix is 60 years, while the age of the applicant is around 45 years. This medical evidence create a doubt about the allegations against applicant. Even though it is vehemently urged on behalf of the prosecution that the vaginal swab was referred for the opinion of expert, which report is yet to be received. Whether the CA report will play material role or not, it can be considered from the angle that no evidence of discharge from the vagina or cervix to be noted. At the same time, no evidence of matting on the pubic hair and no evidence of foreign hair found play material role. In the premise, even though there are statements of the witnesses that at the material time, they saw applicant entered in the premises of the prosecutrix and came out after some time, there is also evidence about the earlier dispute/quarrel took place in between complainant and her sons and applicant and his family members, and after getting knowledge about the said incident, applicant had been to the house of prosecutrix for inquiry, as to what had happened. This incidence also require consideration while granting or refusing anticipatory bail application. Considering the medical evidence, a case is made out that custody of the applicant is not required for interrogation. In the premise, application succeed, but for limited period, hence order : 5 O R D E R 1. Application is allowed. 2. Applicant be released on anticipatory bail in the event of his arrest in connection with CR No.228/2009, registered in Karjat Police Station of Dist. Ahmednagar, on furnishing surety in the sum of Rs. 15,000/- and on executing PR bond in the like amount. 3. After his release, applicant to attend Karjat Police Station for interrogation if required. 4. This protection is granted for the period of 2 weeks from the date of this order. Within meantime, applicant may approach the lower court for regular bail, if he is so advised. 5. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/APRIL 2010/cri.appl.1271-10