1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3859 OF 2007 Prahlad @ Kailash Gova Mandli .. Applicant versus State of Maharashtra .. Respondent ... Mr.R.D. Suryawanshi for the applicant. Mrs.M.M. Deshmukh APP for the State. CORAM : D.G.KARNIK, J DATED : 17th January 2008 P.C.: 1. Heard learned counsel for the applicant and learned APP for the State. 2. The applicant seeks bail under section 439 of the Code of Criminal Procedure. The applicant is arrested and is in custody since 23rd April 2007 in connection with the offence registered with Ulhasnagar police station under C.R. No. 95 of 2007 punishable u/s.363, 366, 376, 377 and 506 of the IPC. 2 Learned APP for the state produced for my inspection (i) office copy of the letter dated 23rd April 2007 by which the victim was sent for medical examination. (ii) Copy of the reply dated 25th April 2007 given by the Medical Officer, Central hospital, Ulhasnagar and (iii) Copy of the report of the Forensic Science Laboratory which states that semen was not detected at Exhibit-3, 4 and 5 i.e. swabs taken from vagina, anus, pubic hair. 3. Medical evidence does not show any signs of sexual intercourse. Taking an overall view of the matter and material available on record which does not prima facie disclose intercourse and taking into consideration the fact that the applicant is in custody for a period of more than eight months and trial is not likely to commence soon, in my view, the applicant is entitled to bail. 4. The applicant shall be released on bail on personal bond of Rs.30,000/- with two sureties of 3 Rs.15,000/- each subject to the condition that the applicant shall not make any inducement or threats to the prosecution witnesses nor shall he in any manner tamper with the prosecution case. The applicant shall further report to the concerned police station once a month between 1st and 5th of British Calendar month. 5. Before parting with this matter, it is necessary to advert to one disturbing feature regarding the investigation. Perusal of the FIR dated 23rd April 2007 discloses that the prosecutrix had alleged that the applicant had sexual intercourse without her consent and had further alleged that the applicant also had unnatural intercourse with her. It is for these reasons the applicant has been charged not only u/s.376 but also 377 of the IPC. However the investigation in respect of the alleged offence u/s.377 does not appear to have been properly carried out. 6. The prosecutrix was sent for medical examination along with a letter dated 23rd April 2007. By the letter dated 23rd April 2007 the Investigating Officer sought medical opinion on 7 questions. Question nos.2 and 3 are material and read thus:- 4 Question No.2 Whether there are any injuries on the sex of the victim? Question No.3 Whether there was any evidence of forcible intercourse with the victim? and if so what was the time/age thereof? No enquiry was made whether there was any injury to the anus or whether there was any possibility of anal intercourse. Though the victim had specifically alleged that she was subjected to unnatural intercourse also, the doctor was not asked to examine the victim with that angle nor for examination of the anus for the purpose of finding out whether there was any unnatural intercourse. Since the alleged incident happened on 23rd April 2007 and a period of more than eight months have passed, it may not now be possible to collect any evidence regarding the unnatural intercourse. This lapse on the part of the Investigating agency has resulted into disappearance of evidence, if there was any, of the alleged crime. Hence, copy of this order be sent to the District Superintendent of Police and also to the Directorate General of Police to take appropriate action in for failure on the part of the Investigating Officer to carry out the investigation appropriately. 5 (D.G. KARNIK, J)