{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.807 OF 2010 Ganesh s/o Shivaji Dhage Age-29 years, Occ-Agriculture R/o Takalgavan, Tq-Georai Dist-Beed At present residing at Motimahel Galli, Beed APPLICANT VERSUS The State of Maharashtra Through Police Inspector, Shivajinagar police station Beed RESPONDENT ....... Mr. H.H.Padalkar, Advocate for applicant Mr. B.J.Sonawane, APP for respondent State ........ WITH CRIMINAL APPLICATION NO.724 OF 2010 Jalindar s/o Vishwambhar Kabade Age-24 years, Occ-Agriculture R/o Gajanan Nagar, Beed Dist-Beed APPLICANT VERSUS The State of Maharashtra Through Police Inspector, Shivajinagar police station Beed RESPONDENT {2} ....... Mr. C.V.Thombre, Advocate for applicant Mr. B.J.Sonawane, APP for respondent State ........ [CORAM : A.V.POTDAR, J.] DATE: 4th March 2010 PER COURT: 1. By these applications the applicants have prayed to release them on bail in connection with CR No.202/2009 registered with Shivaji Nagar police station Beed for an offence punishable u/s 376 (G), 354, 323, 506 r/w 34 of the Indian Penal Code, as the applicants are arrested on 05.12.2009 and since then they are in jail. 2. Heard learned counsel for respective applicants followed by learned APP. Perused the papers of investigation. 3. It appears that the said offence is registered on the complaint of one Manisha Ghule. It is alleged that in the night of 4th December 2009, while the complainant was returning from attending her school at that time three persons came on motor bike, gaged her mouth and forcibly took her to Ashwini Lodge, where she was raped. The ravishment was going on throughout the night and on the next day she lodged the complaint. Out of the three persons allegedly took her to the lodge and raped are, two are {3} the present applicants. 4. The complaint was lodged against 5 persons out of them three are already released on bail. 5. While deciding the earlier bail applications of the co- accused in the said offence, certain documents were produced before this Court. Though the alleged offence is of gang rape on a lady who is serving in a private school, yet the record shows that there is no such school where the complainant claims to be serving at the material time. The said fact creates doubt whether to believe the statement of the prosecutorix or not. Apart from it, after the complaint came to be lodged, immediately the lodge was searched and the Panchanama of the spot of incident was drawn. The articles which were seized at the time of Panchanama indicates that empty condom pockets were recovered from the room so also the food material used during the stay of the prosecutorix and accused. Overall effect of the facts noticed during the visit of the spot of incident is that the said offence, prima facie, cannot be termed as committed by the applicants forcibly without the consent of the prosecutorix. The applicants are behind the bars for more than 89 days and the documents collected during the investigation show that there is no room to draw an inference that the prosecutorix was not a consenting party. In the premise, both the applications deserve to be allowed. {4} 6. Accordingly, both the applications are allowed. The applicants be released on bail in connection with CR No.202/2009 registered with Shivaji Nagar police station Beed on their furnishing surety in the sum of Rs.20,000/- each and on executing PR bonds in the like amount. The applicants are directed not to contact or tamper with the prosecution witnesses. [A.V.POTDAR, J.] drp/A10/criapln807-724-10