IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No.481 OF 2008 CRIMINAL APPLICATION No.481 OF 2008 CRIMINAL APPLICATION No.481 OF 2008 Sachin Adinath Shinde @ Patil and Another ..Applicants. Vs. The State of Maharashtra ..Respondent. WITH WITH WITH CRIMINAL APPLICATION No. 483 OF 2008 CRIMINAL APPLICATION No. 483 OF 2008 CRIMINAL APPLICATION No. 483 OF 2008 Mahesh Digambar Shinde and other ..Applicants. Vs. The State of Maharashatra ..Respondent. WITH WITH WITH CRIMINAL APPLICATION No. 1098 of 2008 CRIMINAL APPLICATION No. 1098 of 2008 CRIMINAL APPLICATION No. 1098 of 2008 Chetan Namdev Dhanawade ..Applicant. Vs. The State of Maharashtra ..Respondents. Mr V. V. Purwant, Advocate for the applicants in Application Nos. 481 and 483 of 2008. Mr Ajit J. Kenjale, Advocate for Applicant in Application No. 1098 of 2008. Ms M. H. Mhatre, A.P.P. in Appln No.481 of 2008. Mr J. P. Yagnik, A.P.P. in Appln. No. 483 of 2008. Mr S.S. Pednekar, A.P.P. in Appln. No. 1098 of 2008. CORAM: V.C. DAGA,J. CORAM: V.C. DAGA,J. CORAM: V.C. DAGA,J. DATED: 15.4.2008. DATED: 15.4.2008. DATED: 15.4.2008. P P P.C. C. C. 1. In all three bail applications, the applicants are seeking regular bail. The Advocates appearing for the respective applicants were heard one after another. Since all the applicants-original accused are seeking bail in C.R. No. 172 of 2007 registered with Pandharpur City Police Station under Sections 376(G), 504, 506 of the Indian Penal Code, involving common facts and identical issues, all three application are being disposed of by this common order. 2. According to the prosecutrix, the accused Pradip had intercourse with her on 3rd October, 2007 near a mango tree. He then told his friends Nilesh Shinde, Mahesh Shinde, Chintya Lokhande, Ganesh Bhange, Sachin Patil and Chetan Dhanavade to have intercourse with her and they also had forcible intercourse with her. 3. The learned counsel appearing for the ( 3 ) respective applicants urged that there is no material against the present applicants. As such, they are entitled to be released on bail. They further relied upon the order of the learned Single Judge of this Court in the case of Pradip Kale Vs. State of Maharashtra bearing Criminal Application No. 222 of 2008 dated 21.2.2008 (Shri D.G. Karnik,J) and prayed for regular bail under Section 439 of the Criminal Procedure Code. 4. The learned A.P.P. opposed application for grant of bail contending that as per C.A. report skirt and the underpant had a human semen which leads to establish a prima facie case against the applicants. He submits that it is the case of gang rape, a serious heinous offence committed by the present applicants warranting no lenient view and consideration in favour of the applicants. He also pressed into service para 11 of the order dated 2.1.2008 passed by the learned Sessions Judge,Pandharpur, wherein the application for bail was rejected by the learned Sessions Judge. The said para reads as under: " The law does not permit that woman should be ( 4 ) ravished against her will even though she may be of easy virtue. Even a concept of where is required to have physical relations with her even though she may be present there for selling her body. So in such a case mere conduct of the victim cannot be put at stake by saying that she was of easy virtue and so she did allow without any resistence to have intercourse with her. When the complaint itself mentions that she was objecting and resisting for sexual intercourse by the accused persons, then it means that she was not willing to have sexual intercourse with all the accused persons except accused Pradip Kale who subsequently also turned hostile against her and instigated his friends to have sexual intercourse with her. Therefore, it cannot be presumed that the prosecutrix was a consenting party to the acts. Moreover, the age of the prosecutrix is shown as 17 years. Though she may be married, still her age being on the verge of minority, her consent or no consent at least at this stage does not manner. So, considering the nature of the offence and the manner in which, it was accomplished, I am not inclined to release the applicants accused on bail. The applications therefore deserve to be rejected.." 5. The learned A.P.P. thus, prayed to reject all the three bail applications. 6. Having heard Advocates appearing for the respective applicants, I must observe that so far as the grant of bail in favour of accused Pradip Kale under the order of learned Single Judge of this Court dated 21.2.2008 is concerned, it cannot come to rescue ( 5 ) of the present applicants since the learned Judge found that the prosecutrix had consentual intercourse with the said Pradip Kale on several occasions in the past and even thereafter she had voluntarily gone to him at his invitation. Consequently, allegations of rape made by the prosecutrix were not accepted by the learned Judge and prima facie; finding favour with the defence raised by Pradip Kale, bail was granted. 7. So far as Pradip Kale is concerned, consentual intercourse can be inferred from the F.I.R. itself. As against this, the present applicants are concerned, there is absolutely no indication with regard to the consentual intercourse. On the contrary, she has made a specific allegation alleging that the present applicant had a forcible intercourse with her against her consent. It is no doubt true that there is some lapse on the part of the investigating agency for which show cause notice has also been issued to the Investigating Officer. The lapses alleged to have been committed by the I.O. are not innocent lapses. They appear to be with specific intention to absolve the applicants. In view of this scenario possibility of the applicants tampering with the available evidence against them cannot be ruled out. ( 6 ) 8. Under these circumstances, considering prima facie case against them and the possibility of tampering with the prosecution evidence, I am not inclined to entertain their application for regular bail. 9. In the result, the present application stands rejected. 10. Any observation made in this order shall not be construed as any finding or any expression of opinion on the merits of the case at the time of trial. (V.C.DAGA,J) (V.C.DAGA,J) (V.C.DAGA,J)