*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3584/2009 Kundan Raj Borgohain. ..Applicant -VERSUS- The State of Maharashtra. ..Respondent ............... Mr.H.H.Ponda, Senior Advocate for the Applicant. Mr.J.P.Yagnik, APP for the Respondent/State. Ms.Maharukh Adenwala, Advocate for the Complainant. ............... CORAM: A.P.DESHPANDE, J. Dated 18th September, 2009. PC:- 1 The present application is filed under Section 439 of the Code of Criminal Procedure by the present Applicant who has been arrested on 15.04.2009 in connection with Crime No.111/2009 registered with Trombay Police Station for commission of the offence punishable under Section 376(2)(g) r/w 34 of the Indian Penal Code. 2 Perusal of the First Information Report lodged by the prosecutrix reveals that she is a citizen of USA who had come to Mumbai as a student and joined the Gender & Development course at the Tata Institute of Social Sciences, Deonar, Mumbai. The prosecutrix was staying in hostel of the said institute. She had joined the course in January, 2009. Her friend Annie Brown is also student in the above mentioned course and stays in hostel wherein the prosecutrix was staying. The prosecutrix is aged about 23 years. 3 The case of prosecution is as under:- On 11.04.2009 at about 10:30 pm the prosecutrix had *2* been to the room of her friend Annie Brown. During talks, Annie Brown informed the prosecutrix that she proposes to go out along with her friends who wanted to bid her goodbye. She informed the prosecutrix that they would be going to Cafe XO near the T.I.S.S.. Annie Brown asked the prosecutrix as to whether she would like to accompany them. Annie also informed the prosecutrix that she would be leaving for Darjiling early in the morning on 12.04.2009. By about 11:00 pm when the prosecutrix and her friend Annie reached outside the gate of the campus, they met Vinamra Soni, Jaskaran Singh Bhullar (also known as Karan), Harsh, Anish and Devsi (the said persons are accused Nos.1 to 5). The prosecutrix had met Vinamra, Karan and Anish at Annie’s birthday party sometime in February, 2009 and she had met Harsh and Devsi for the first time on that night. All of them proceeded to Cafe XO which is a Lounge Bar at Sai Commercial Centre, DKS, Devshi Marg, Deonar Road, Deonar, Mumbai. At Cafe XO, they sat on one table. Boys ordered 10 bottles of beer initially. Though the prosecutrix was reluctant she agreed to have a drink and ordered a vodka. All of them consumed the drinks a lot. On two occasions the prosecutrix had gone outside, in the company of Harsh on the first occasion and in the company of others on the second occasion for a smoke. They returned back and further consumed beer. The prosecutrix though not willing was forced to consume the beer. After sometime the prosecutrix was feeling dizzy and light headed. At about 1:00 am on 12.04.2009 the group left Cafe XO and started walking towards T.I.S.S.. Karan and Harsh kept asking *3* the prosecutrix what her plans were on that night, on which she replied that she wanted to meet her friend by name Ahmed in Andheri at Club Bling in Hotel Leela Kempinski. The prosecutrix then informed other boys that they are welcome to join her. The boys in her company insisted that Annie Brown should also join them but she declined as she had to catch a flight to Darjiling early in the morning. At about 1:30 am the prosecutrix sat in auto- rickshaw along with Vinamra and Karan whereas Anish, Harsh and Devsi sat in another rickshaw. The driver was told to take rickshaw to Andheri. After about 20 minutes, the other rickshaw stopped, hence, the rickshaw wherein the prosecutrix was seated also stopped. At that time, Anish, Harsh and Devsi got out to pee. Harsh then came to the rickshaw of the prosecutrix and told the prosecutrix that before going to Club Bling, they would first go to their friends house in Andheri where all of them would relax for sometime and then go to Club Bling. The prosecutrix did not want to go to the place of their friend and hence asked the rickshaw driver to take them to Club Bling. After about half an hour the rickshaw stopped at some place in Andheri near a building. The prosecutrix and others got down from the rickshaw and went in the building. They went up in the lift and stopped on 6th floor. When the lift stopped, they got out in the corridor. In the corridor the present Applicant Kundan was standing. The Applicant greeted them and took them into his flat. The prosecutrix and others went into the room. After sometime the prosecutrix went into the bedroom. Vinamra and Jaskaran were in the bedroom. The present Applicant entered the bedroom, switched *4* on some music and left the room. Vinamra and the prosecutrix sat on the mattress and thereafter, they lay down on the mattress. Vinamra huged the prosecutrix and started kissing her. Though the prosecutrix told him to stop, he did not heed to her request and said that he loved her and started kissing her. Karan also came there and started kissing her. Karan lifted the T-shirt and pushed the bra up and started sucking the breasts. The prosecutrix tried to stop him, but he continued to do so. At that juncture, the prosecutrix went into the bathroom and tried to contact her friend Ahmed to whom the prosecutrix was supposed to meet, however, he did not answer. Then the prosecutrix tried to call her friend Vikram Pathak who lives in Los-Angeles, USA, however, he was busy and he could not speak to the prosecutrix. The prosecutrix then came out of the bathroom but was unable to walk properly. She went into the bedroom and lay down on the mattress as she was not feeling well. The prosecutrix was also scared and feeling uncomfortable. She wanted to leave that place, however, when she tried to get up she could not stand steadily and fell down on the floor. When the prosecutrix woke up at about 10 am, she saw Vinamra was sleeping on her right side, Harsh was sitting near her playing with her hair and Karan was sleeping next to Harsh. The prosecutrix felt vey disgusting and scared. She realized that her bra was undone, her belt was unbuckled and her jeans and underwear was pulled down and was around her ankles. The prosecutrix was very scared as she thought they had raped her. The prosecutrix was on her menses period, so she checked to see if she could feel her *5* tampon still inside her and as she could not find the tampon, she was very worried. She pulled her pant up and then went to bathroom. In bathroom she found that her tampon was still inside her but it was pushed far up. The prosecutrix was experiencing lot of pain in the area around vagina. The prosecutrix in the company of Harsh and Vinamra fetched a rickshaw and drove to a chemist just around the corner and on insistence from Harsh, the prosecutrix took a i-pill tablet (a medicine which prevents pregnancy). From the said act of Harsh the prosecutrix’s assumption that she was subjected to sexual intercourse was substantiated as she was made to consume a contraceptive pill. 4 According to the learned counsel for the Applicant what has been alleged against the present Applicant is that when others got in the corridor in front of his flat the present Applicant greeted them and took them to his flat. He was introduced as Kundan. When others went into the bedroom the Applicant switched on some music and left the room. It is submitted that the Applicant was neither in the company of others who had drinks with the prosecutrix nor did he had any point of time talked to the prosecutrix or touched her. It is only because the flat happens to be in possession of the Applicant under a leave and licence agreement, he has been falsely implicated in the crime. It is then submitted that the common intention cannot be attributed to the present Applicant in commission of offence of rape. The Applicant has neither participated in the crime nor was he present at the scene of offence meaning thereby the bedroom. The common intention on the part of the Applicant cannot be gathered *6* so far as the offence of gang rape or rape is concerned. The learned counsel for the Applicant has then taken me through the medical certificate issued by the Doctor from Rajawadi Municipal General Hospital. Against the column of “Describe pertinent data of the assault with regard to injuries to the complainant and mechanism, weapons or objects used or threatened, verbal threats, areas touched”, it has been recorded that “patient does not remember anything”. Even in the column dealing with the “details regarding penetration: was penetration attempted by penis, fingers or other object?”, it has been recorded “do not know”. In another column which deals with “kissing, licking or sucking of breasts or other parts of patient’s body?”, it is recorded “do not know”. Thus, it is submitted that according to the medical report based on information furnished by the prosecutrix first in point of time she was knowing nothing and had only assumed that there was sexual assault. It is then submitted that to constitute an offence under Section 376(2) (g) or Section 34 of the Indian Penal Code, two ingredients are necessary to be satisfied (1) that the accused had acted in furtherance of their common intention and (2) that the accused must have participated in the commission of crime. According to the learned counsel for the Applicant, so far as the present Applicant is concerned, he for the first time met the co-accused and the prosecutrix on the day of the incident when they reached the flat of the Applicant. The Applicant was not in the company of other co- accused and the prosecutrix and hence, it cannot be prima facie said that there was any common intention shared by the present Applicant in commission of crime. *7* 5 Per contra, the learned APP and the learned counsel for the Complainant have submitted that the prosecutrix was intoxicated by forcing her to consume liquor by the other co-accused against her will and taking advantage of the said situation, they had also administered some stupefying substance in the liquor and same is so found in the urine report of Chemical Analyzer. It is seen from the result of analysis of the prosecutrix’s urine that ‘cannabis constituents in the urine are positive’. It is then submitted that having regard to the circumstances such as the prosecutrix was forced to consume the liquor, detection of cannabis constituents in her urine, kissing & sucking of breasts by co-accused, removing of pant and underwear of the prosecutrix and location of the tampon deep inside the vagina are good enough circumstances to give rise to well founded assumption of the prosecutrix that she was sexually assaulted. 6 At this stage without going into the merit of the matter and accepting the prosecution case as it is, what is required to be seen is as to whether, the present Applicant could be said to have acted in furtherance of the common intention to commit the offence having regard to explanation-1 of Section 376(2)(g) of the Indian Penal Code. 7 From the facts narrated by the prosecutrix herself reveals that the present Applicant cannot be said to be party to the pre-arranged plan as he was not in the company of the other co- accused and the prosecutrix at the Cafe XO. The other co-accused could have decided to commit the crime when they were in the company of the prosecutrix at Cafe XO or thereafter, because prior *8* thereto even other co-accused did not know that the prosecutrix was to join their company for drink. It appears that when other co- accused and the prosecutrix hired the rickshaw and sat in the said rickshaw and started for Andheri, during that ride when the rickshaws were halted, one of the co-accused must have had a telephonic talk with the present Applicant and he seems to have informed the Applicant that they would be coming to his flat in the company of the prosecutrix. This appears to be likely because at about 1:30 to 2:00 pm the Applicant had instructed the watchman of the gate that he was expecting his friends and a foreigner to his flat. After other co-accused and the prosecutrix reached the corridor on the 6th floor, what is stated in the F.I.R. about the present Applicant’s role is that he welcomed them and took them to his flat. After sometime the prosecutrix and co-accused went in the bedroom, at that juncture, the present Applicant is stated to have switched on some music and left the place, possibly meaning thereby the bedroom. Thereafter, the Applicant is not seen at the place of crime by the prosecutrix. If this be the factual position it does prima facie appear that the present Applicant did not share the common intention along with other co-accused to commit an offence of rape. It also prima facie appears that the Applicant has not participated in the commission of the crime and that he left the place of crime (possibly the bedroom) after he switched on the music. 8 Prima facie, the facts and circumstances narrated herein above suggest that the Applicant did not share the common intention to commit the rape. The case of the other co-accused who *9* have been in the company of the prosecutrix since the time they were seated in the bar is altogether different from the case of the present Applicant against whom there is hardly any material available on record to connect him with the crime. In the context of Section 34 of the Indian Penal Code, it can also be prima facie said that the Applicant does not appear to have taken part in the criminal act. 9 The Applicant is in custody since last 05 months. According to the learned counsel for the Applicant, the Applicant is aged about 23 years and is a student of Rajiv Gandhi Institute of Technology and Engineering College, Versova and at the relevant time the Applicant had to appear for his 4th semester in the said institute. The Applicant has no criminal antecedents. The Applicant had taken the flat in question under the leave and licence agreement. 10 Having regard to totality of the facts and circumstances, in my opinion the Applicant is entitled to be released on bail. Hence, I pass the following order:- (a) The Applicant shall be released on bail on execution of a personal bond in a sum of Rs.50,000/- with one or two sureties in the like amount. (b) The Applicant shall attend the concerned Police Station once a week i.e. on every Saturday in between 4:00 to 6:00 pm till the conclusion of trial. (c) The Applicant shall not tamper with the evidence and/or shall not contact or pressurize the witnesses (d) The Application is allowed and disposed of accordingly. (A.P. Deshpande, J)