1appln-2099-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION No. 2099 of 2010 Shankar Subramanaym Mudaliyar ... Applicant. versus The State of Maharashtra .... Respondent. Ameeta Kuttikrishnan, for the Applicant. Mr S. N. Gavade, A.P.P.,for the State. CORAM:- A.R. JOSHI, J. DATE :- 16TH AUGUST, 2010. P.C.:- 1. Heard rival submissions for some time on this regular bail application preferred by the applicant arrested in C.R.No.276 of 2009 registered with Antop Hill Police Station, Mumbai for the offence punishable under Sections 302, 376 (g), 452, 342 read with section 34 of Indian Penal Code. Reportedly, investigation is over and charge- sheet is already filed. 2. Prosecution case, in nut-shell, is that accused No.2 wanted to marry the victim woman sometime during the year 2004 or so. 2appln-2099-10 However, allegedly he was of bad character and father of the victim was not agreed for such marriage. Thereafter, in the year 2005, the victim was married to some-one else. However, apparently, the desire of accused No.2 to be in the company of the victim was not extinguished. On the fateful day i.e.on 21.9.2009, accused No.2 called the victim woman, then aged about 22 years, to some place at Mahim at about 11:00 a.m. She refused. On the same day evening, at about 6:30 p.m., when the victim was alone in her hut, accused No.2 along with his two other brothers, accused Nos. 3 and 4 and also present applicant No.1 went to the said hut. That time, accused No.2 was carrying kerosene can with him. After entering the hut all the four accused committed forcible sexual intercourse with the victim against her wishes and thereafter they poured kerosene upon her and set her on fire. Thereafter, they ran away from the spot. 3. According to the statement of one Merry Krashna Patel, sister of the victim, she had witnessed the part of the incident as to present applicant and other co-accused committing sexual assault on the victim. When one of the accused noticed her presence, she was given threats of dire consequences and she was asked to go away from the spot, otherwise to face the same fate of sexual assault. Said 3appln-2099-10 witness left the place and went to her home and searched for her parents. However, nobody was at home. Even she gathered nearby persons and again came to the hut of her sister i.e.the victim. That time, present applicant and co-accused were running away from the said place and seeing this said witness did not proceed further till the accused persons were on the spot. After they left, she went to the place and tried to rescue the victim who was in burning condition due to pouring of kerosene and setting the victim on fire. 4. During the arguments, learned Advocate for the applicant- Accused No.1 submitted that in the C.A.report, there is no mention that the clothes of the present applicant, allegedly seized during the investigation, had any straces of kerosene. What is significant is- whether the clothes of the victim had any straces of kerosene and answer to this question is admittedly in positive. It is not material, at least, at this stage, whether the clothes of the present applicant were also smeared with kerosene or not, still, considering the allegations that kerosene was poured on the person of the victim. 5. While under treatment for more than 90% burn injuries, victim-woman had given her statement in which she narrated the entire incident and the involvement of the present applicant along with 4appln-2099-10 co-accused in the matter of sexual assault on her and setting her on fire. In the same incident, the victim succumbed to the burn injuries and as such said statement of the victim was treated as F.I.R.and offence was registered against all the accused, including the present applicant. 6. Reportedly, the charge-sheet is already filed and charge is also framed. Considering the prima facie allegations against the applicant and considering the factual position as to criminal antecedents against the present applicant, it is not in the fitness of situation to release him on bail during the pendency of the trial. In the result, the following order:- ORDER: (a) Bail application is rejected. (b) Any observations made in this order shall not be construed as any finding or any expression of opinion on the merits of the case at the time of trial. Application is disposed of in above terms. (A.R.JOSHI,J) LRS-PA