1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION NO.256 OF 2009 (Vikas Hatwar ..vs.... State ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : S.R.DONGAONKAR, J. DATE : 20th APRIL, 2009 Heard Shri V.M.Deshpande, advocate for the applicant and Shri Thakre, A.P.P. for state. 2) The applicant is accused of serious offences like section 363, 366, 376, 342, 406, 504, read with section 34 of I.P.C. The alleged date of incident is 3.12.2008. The report is lodged on 4.12.2008 by the prosecutrix Chetna. According to the report, when she was in front of the house of the co- accused Pramod Maske, he and his brother (other co- accused) Raju Maske forcibly took her inside their house. Maske brothers left the house and the present applicant committed forcible sexual intercourse with her. The offence was registered vide crime no.61/2008. The prosecutrix was medically examined. She was found to be below 15 years of age, which is disputed by the applicant. 3) While opposing the bail application, learned A.P.P. has relied on the statement of the father of the prosecutrix & 2 statements of one Baby, one Shobha Giradkar and Vishal Giradkar. 4) The statement of the father of the prosecutrix , Shobha Giradkar, Shakuntala Giradkar are stated to be supporting the prosecution case. It is interesting to note as to what they have stated before I.O. 5) Chintaman Hedau, who is none less than the father of the prosecutrix has stated that on 3.12.2008, he was asked by his wife Baby to ask Chetna - prosecutrix as to where she had gone. He asked her, but she did not tell anything. Then his wife told that there was rape on Chetna. Again he asked Chetna, but she did not tell anything. He slapped her twice or thrice, still she did not tell anything. Thereafter, his brother in law Gajanan Katware came there at about 9.30, he had a talk with the mother of Chetna, what was the talk between them, he did not know; meaning thereby, at the time of recording the statement on 5.11.2008, he did not know who had committed rape on his daughter Chetna. Again in latter part of his statement before police, he has stated that when “Saheblok” perhaps the police authorities, came to his house that day he came to know that somebody had obstructed Chetna, they took her somewhere and committed rape. This is a very shocking statement of the father of the prosecutrix, who was immediately examined by 3 the police on 5.12.2008. 6) Turning to the statement recorded of Shobabai, it appears that she had told that when she was taking tea, along with her husband on the otta of her house, people started going towards the house of Maske on the information that there was some snake in the house of Maske and snake- charmer was there in the house. She went there to see as to what was there. There was gathering of people and in the staircase of Bablu Maske one girl was sitting. Thereafter the boys gathered there, told her that the gate of staircase of the brother of Pramod Maske i.e. the Babblu Maske was unchained by putting hand inside and when she went in the house, one girl aged about 14 years was found sitting on the steps of the staircase. When she asked, as to why she had come there, the girl told that she had come there to get notebook & she lives at Khapa. Then she asked her to go her house and she went to her house running. She did not know where she had gone & she specifically told that Vikas Hatwar was not seen there. She did not tell about any rape. Needless to say, it appear to be statement in consistent with prosecution case. 7) Turning to the statement of Vishal Giradkar, he also states that there were 100 to 150 people gathered there and he came to know that Vikas Hatwar i.e. present applicant 4 and one girl whose name he did not know, were in the house of Pramod Maske. Thereafter Bablu Maske and Raju Maske opened the front door, they went inside, the persons who gathered also went in the house, nobody noticed Vikas Hatwar, present applicant or the girl, so he went way. Such statement need no comment of the court. 8) Turning to the medical evidence, it is also equally shocking. The Medical Officer while examining the prosecutrix noticed no evidence of any external injury on her person. There was no evidence of injuries to external genitalia. It was also pointed out by the learned counsel for the applicant that there was finding that hymen is ruptured and two fingers PV examination is easily possible. I am aware that this is a reconcilable finding with defence. But it is difficult to understand as to why Medical Officer did not give any opinion as to whether hymen rupture was recent and how two fingers PV can be viewed in these circumstances of the case. The history as given in the Medical Officer's report by the prosecutrix was that accused had shut the mouth of the prosecutrix by hand and had forcible sexual intercourse. In these circumstances, the adverse finding noticed by Medical Officer, should have been explained by the prosecution, at least prima facie. No other evidence other than the evidence of prosecutrix is pointed out by the respondent. It appears to be inconsistent with the medical 5 evidence. 9) Taking over all view of the matter, particularly when Pramod Maske is stated to have been released on bail, this applicant cannot be refused bail, however, considering the circumstances of the case, it would be subject to conditions: The applicant be released on bail on furnishing surety and PRB of Rs.25000/- subject to conditions that he shall report at P.S. Khapa on every Sunday and Wednesday at 11.00 a.m. until further orders or till trial is over and shall not directly or indirectly tamper with the prosecution evidence. He shall not commit any offence. Except for attending the police station, he would keep away himself from the town Khapa, until further orders. Bail in trial court. Application stands disposed of. Hamdast granted. 10) It is made clear that the above observations are in prima facie view of the matter and the trial Judge shall not be influenced any way by them, while deciding the matter on merits. Liberty to prosecution to apply for cancellation of bail, if circumstances so warrant, later. JUDGE SMP