1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 1318 /2010 ( Sunil s/o Ruprao Pawar vs. State of Maharashtra) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. R J Mirza, Advocate for applicant Mr. C N Adgokar, APP for Respondent CORAM : A.P. BHANGALE, J. DATED : 13 th September, 2010. Heard. 2. The applicant prays for grant of bail in connection with Crime No. 47/2010 reported on 24.3.2010 for offence punishable under section 376(g), 377, 323 & 506 IPC, at Police Station Akot, Dist. Akola. It is alleged that on 19.3.2010 the victim, accompanied with her son, aged about 14 years had visited her mother's house and left it on 23.3.2010 at about 11.00 p.m. in order to go to Indore, her marital home. On on the way, it is alleged by her that two persons riding on motorcycles who were aged about 30 to 35 years unknown to her, had accosted her. They had taken her below a tree near the nullah in the darkness and the one who was fatter amongst them, pulled her hairs, held her hands; while another person who was slim fell her down and, it is alleged that they had raped her. It is further alleged that they had threatened her with dire 2 consequences and to kill her son and then then took her towards the Railway Station and thereafter asked her to sit inside the black-yellow taxi and again raped her inside the taxi. Furthermore, one of them performed unnatural act with her punishable under section 377 of the IPC. It is the further case of the prosecutrix that two policemen came there and enquired and she had narrated the incident to them. Her son was also weeping. It is also alleged that both the persons had given her fist blows and slaps on her face, body and assaulted her on her eyes. 3. Learned Advocate for the applicant contended that although such serious accusations have been made, there was no any corresponding injury found on the person of the prosecutrix. The medical examination also did not clarify as to whether the prosecutrix was subjected to rape. The observation is that hymen was irregular may be normal in case of a married woman having children. It is further submitted that on policeman approaching the prosecutrix, she had invented the apocryphal story suitably to rope in the applicant falsely. Thus, it is submitted that allegations are false. According to learned Advocate for the applicant, the co-accused Deepak, a taxi driver has already been granted bail by the Sessions Court. Learned Advocate relied on the rulign in Shiney Ahuja vs. State of Maharashtra 2010 All MR (Cri)92 to argue that charge-sheet is already filed and chances of conviction of 3 the present applicant are feeble and remote as the story against him by the prosecution is made out in connivance with policeman as there was quarrel between Deepak and one of the policeman who had approached the taxi. 4. Learned APP objected the bail on the ground that the accusations are serious including that of unnatural offence punishable under section 377 of the IPC against the applicant. Prima facie, it appears difficult to believe that prosecutrix had given her age as 38 years while according to her, her elder son is of 23 years old, she is having four children and married to a person resident of Indore. She had started from the house of her mother at about 11.0 p.m. to go to Akot Railway station. When the first informant contended that she was given fist below, slaps and was also assaulted on her head, face and body it is difficult to believe that Doctor would not find any resultant marks, injury on her person. Under these circumstances, the possibility that after policeman approached, the story of rape and unnatural offence might have been invented, cannot be overruled. Under these circumstances, I think since the charge-sheet is already filed the applicant may be enlarged on conditional bail, by making it clear that observations made herein-above are only for the purpose of decision on the bail application and the trial Court shall not be influenced by any of the observations and shall decide the Sessions trial on it own merit. Hence the following 4 order: The applicant be enlarged on bail in respect of Crime No. 47/2010 registered at Police Station Akot, Dist.Akola, for offence punishable under sections 376(g), 377, 323 and 506 of the Indian Penal Code, upon furnishing personal bond in the sum of Rs.30,000/- with one or more surety in the equal amount, provided further that: (i) applicant shall attend the Sessions case on each date of hearing ;. (ii) he shall not tamper with the prosecution evidence; (iii) he shall inform his fixed address with mobile/cell phone number, if any, to the I.O. as well as the trial Court and shall not misuse his liberty in any manner. Application is disposed of. JUDGE Sahare