(1) CRI. APLN. 4628.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4628 OF 2010 Vishnu S/o. Anandrao Poharkar, Age : 56 yeras, Occu.: Service, R/o. Quarter No.7, Kada Office, Behind Gajanan Maharaj Mandir, Aurangabad APPLICANT (Orig. Accused) VERSUS The State of Maharashtra Through Jawahar Nagar Police Station, Aurangabad RESPONDENT (Complainant) ..... Mr. B.V. Dhage, Advocate for the Applicant. Mr. B.J. Sonawane, A.P.P. for the respondent/State. ..... CORAM : V.R. KINGAONKAR, J. DATED : 8TH DECEMBER, 2010 ORAL ORDER:- 1. This is an Application for bail. 2. Heard learned Advocate for the applicant. 3. The applicant is arrested for offences punishable under section 376 and 323 of the Indian Penal Code. 4. The prosecutrix is a young woman. She is reportedly a mentally challenged woman. The father (2) CRI. APLN. 4628.2010 has lodged FIR alleging that the prosecutrix is the daughter born out of his first marriage and is unable to properly walk. She is dumb. Allegedly, when she was aged about 10 years, she met with an accident involving herself amidst flames of fire. She was crippled since the birth. She used to sit in front of Gajanan Maharaj temple. She used to return home at any time during night time. About 15 days prior to the lodging of the FIR, she informed the parents, by gestures that she was feeling uneasy and sensation like vomiting. They took her to a private hospital of Dr. Gaikwad. It was found that she had become pregnant. When co-axed, the girl showed them by gestures that she was assaulted at about 9.00 pm. - 10.00 pm. by one person and was taken to the house. She pointed out house of the applicant. The applicant is related to the complainant. She pointed out the house but it was locked on that day. She narrated as to how she was ravished, by showing the gestures of sexual act committed by the accused and lateron the FIR was lodged after due verification of the information. (3) CRI. APLN. 4628.2010 5. The applicant submits that he is falsely implicated on account of dispute over non-payment of amount of Rs.65,000/- paid by him to the complainant for construction of the house property. It is alleged that when the amount was demanded, the applicant has been falsely framed by the complainant. The learned Advocate for the applicant would submit that the complaint is filed at belated stage and it is based upon vague information which is gathered only on account of gestures made by the girl of less mental ability to express herself. Consequently, it is urged that the applicant is entitled to liberty during course of trial. 6. There is no tangible material to infer that the applicant had lent any amount to the complainant prior to the alleged incident and therefore there was some dispute between them due to non-payment of that amount after the demand made by the applicant. One cannot be oblivious of the fact that such vague allegations and sweeping statements can be made at any time without there being any substantial reason and therefore enmity cannot be assumed only because the applicant says that the complainant developed (4) CRI. APLN. 4628.2010 certain ill-will against him due to the demand of the amount which was due. It is further to be noticed that the complainant has clearly indicated that the young woman is mentally challenged person as well as crippled. He categorically stated that she used to sit in front of Gajanan Maharaj temple hours together and used to return home somewhere in the night time. In other words, she was un-attended and was mentally incapable of taking any decision on her own. It is quite probable therefore that the applicant, who is relative of the complainant, was cognizant of the mental inability of the young woman. It is probable that he exploited her and ravished her after assaulting her in the relevant evening. The prosecutrix may be dumb and mentally challenged yet her parents could understand the gestures and properly interpret the same in view of the fact that since childhood they are accustomed with her behaviour and gesture. The internal communication between the parents and the prosecutrix could not be impaired due to her inability to speak. 7. Under these circumstances, it prima facie appears that the applicant is involved in the serious (5) CRI. APLN. 4628.2010 crime and attempted to exploit the mentally challenged young woman. 8. In view of the gravity of the offence and the possibility of tampering with the evidence, the Application is dismissed. The observations made in this order be not considered while deciding the Sessions case. The trial of the Sessions case shall, however, be expedited and be completed within a period of six months as far as possible. Sd/- [V. R. KINGAONKAR, J.] arp