(1) CRI.APP. 2633.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2633 OF 2010 1. Netaji S/o Santaram Chavan, Age : 20 years, Occu.: Student R/o Ghatangri, Tq. and Dist. Osmanabad 2. Vikas S/o Balu Chavan, Age : 19 years, Occu.: Student R/o as above .. Applicants VERSUS The State of Maharashtra (Copy to be served on P.P. High Court of Judicature of Bombay Bench at Aurangabad) .. Respondent Mr. V.B. Deshmukh, Advocate h/f. Mr. Mahendra B. Kolpe, Advocate for the Applicant Mr. B.J. Sonawane, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 30TH AUGUST, 2010 ORAL ORDER:- 1. This is an application for bail under section 439 of the Code of Criminal Procedure. The applicants are youngsters below 21 years of age. Allegedly, they alongwith third accused by name Ankush Rathod had pulled the prosecutrix inside the (2) CRI.APP. 2633.2010 agricultural land where groundnut crop was standing. The incident is said to have occurred on 9th May, 2010 in the evening time around 7:30 pm. The applicants allegedly ravished the prosecutrix, who is a minor girl aged about 15 years, in the agricultural land. 2. Heard learned counsel and learned APP. The investigation papers are perused during course of the hearing and even returned to the learned APP. 3. The incident giving rise to the filing of the FIR is said to have taken place after the dusk and the prosecutrix had gone towards the agricultural land. It is alleged that she was returning after answering call of nature when the applicants pressed her mouth and took her inside the standing crop of groundnuts. The first information given by the prosecutrix indicated that the applicants fled away from the place on seeing her grand-father Laxman Chavan coming towards the field. She also narrated to the grand-father and the Police Officer that the applicants had pressed her breasts after forcibly (3) CRI.APP. 2633.2010 pushing her down in the agricultural land. She did not inform them about the alleged ravishment. It was not her statement that the applicants committed sexual intercourse with her. It was only after the medical examination that the offence of rape punishable under section 376(2)(g) of the Indian Penal Code was added in the FIR after the delay of more than two days. Initially only offence under section 354 of the Indian Penal Code was alleged against the applicants and they were released on bail but subsequently they were again taken in custody and are behind the bars since 21st June, 2010 till this date. 4. Perusal of the investigation papers go to show that at the first available opportunity the prosecutrix did not disclose that she was ravished by either of the applicants in that evening. Additional statement of her grand-father Laxman was recorded after three days. It prima facie appears that he subsequently stated before the Police that the prosecutrix had narrated to him and her grand-mother (4) CRI.APP. 2633.2010 on 11.5.2010 about the alleged rape committed by the applicants after gagging her mouth. 5. Considering the conduct of the prosecutrix, it prima facie appears that she had gone towards the agricultural field on her own. The applicants could not have anticipated her such visit to the agricultural land in the evening. It is prima facie probable that because of arrival of Laxman Chavan, the applicants immediately left the place and, thereafter, the story was developed by the prosecutrix and lateron the charge of rape was added. I do not wish to make any comment on the veracity of the statements of the prosecutrix and her grand- father inasmuch as the trial Court will have to appreciate the evidence in view of the attaining circumstances. The medical report also does not show that the prosecutrix was subjected to fornication i.e. the sexual intercourse for the first time. The medical report shows that there was no injury to the external genitals. Hymen was found ruptured. It was noticed that one finger was easily (5) CRI.APP. 2633.2010 accommodated in the vagina. There were no stains of blood and that there was no external injury found on her person except swelling around nipple of the breast and tenderness as well as the abrasion at one place over small area of the breast. If she would have been forcibly pushed down to the earth and was subjected to intercourse by use of physical force, some injuries on her back or buttocks could have been seen. Considering the attaining circumstances, the applicants may not be detained any more since the investigation is practically complete. 6. In the result, the Application is allowed. The applicants are directed to be released on bail on furnishing bail bonds in the sum of Rs.25,000/- (Rs. Twenty Five Thousand) each alongwith one solvent surety each, to the satisfaction of the Court of Sessions and on condition that the applicants shall not enter the hamlet called Laman Tanda no.3 and the village Ghatangri until the completion of the trial and shall not contact any of the prosecution witness and shall make no attempt to tamper with the prosecution evidence. They shall submit an (6) CRI.APP. 2633.2010 undertaking before the Court of Sessions simultaneously with furnishing of bail bonds to keep themselves free with the above condition if so released on bail and on breach of any of the conditions they would be liable to be re-arrested by cancelling the bail. Criminal Application disposed of. Sd/- [V.R. KINGAONKAR, J.] arp