[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.407 OF 2008 IN APPEAL NO. 67 OF 2008 1. Ganesh Shankar Devrukhkar 2. Nilesh Manohar Sawant 3. Vijay Ramji Pande ..Applicants Vs. State of Maharashtra ..Respondent ... Mr.Niranjan Mundargi advocate for Applicants Mr.Y.S.Shinde A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : MAY 05, 2008 DATE : MAY 05, 2008 DATE : MAY 05, 2008 P.C. P.C. P.C. 1. Heard the learned advocate for the applicants and the learned A.P.P. for the State. 2. The applicants have been convicted under Section 376(2)(g) of IPC and sentenced to imprisonment for ten years. The applicants are now seeking bail. 3. The prosecution case is that all the three applicants committed rape on the prosecutrix on [-2-] 6.9.2006 between 4.00 a.m. to 5.30 a.m. FIR came to be lodged at 7.05 a.m. and prosecutrix was sent for medical examination. The clothes of the prosecutrix and the accused persons came to be seized. No semen was found on the clothes of the prosecutrix or any of the accused persons. So also, the C.A. report pertaining to the vaginal smear is negative i.e. no semen was found in the smear. Thus, C.A. report does not support the prosecution case. 4. Now I shall proceed to deal with the evidence in relation to actual medical examination of the prosecutrix. The prosecutrix was 17 years of age. She was unmarried girl. It is the case of the prosecution that all the three accused repeatedly raped her from 4.00 a.m. to 5.30 a.m. No injuries were found on the private part of the prosecutrix. The medical evidence shows that prosecutrix was accustomed to sexual inter course. Thus, the medical evidence also does not support a case of forcible sexual intercourse. 5. The case of the prosecutrix is that on account of Ganpati festival, Garbha programme was going on. [-3-] After Garbha programme, when she was going home, the accused persons dragged her from the second floor to terrace on the 7th floor. It has come in the evidence of prosecutrix that the occupants of the building were moving on the staircase at that time. There were people in the ground including the grand mother of the prosecutrix. There is nothing in the evidence of prosecutrix that she put up any resistence or she shouted for help or made any attempts to escape. Looking to the evidence on record, I find much merit in the submission made by the learned advocate for the applicants that it was a case of consent. In this view of the matter, I am inclined to grant bail to the applicants. 4. Each of the applicants i.e. applicant no.1-Ganesh Shankar Devrukhkar, applicant no.2-Nilesh Manohar Sawant and applicant no.3-Vijay Ramji Pande to be released on bail in the sum of Rs.25,000/- (Rs.twenty five thousand only) each with one or two sureties to make up the said amount. The applicants to report to the concerned police station once in a fortnight till the disposal of the appeal. 5. Application is disposed of. [-4-] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]