- 1 - APPA. 634 -2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.634 OF 2011 IN CRIMINAL APPEAL NO. 631 OF 2010 Uttam Vasant Kalel ...Applicant Vs. The State of Maharashtra ...Respondent ----- Mr.V.V. Purwant for Applicant Smt.V.R. Bhosale -APP for State ----- CORAM: V.M. KANADE A.M. THIPSAY JJ. DATED: 18th August, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Applicant and the learned APP for the State. 2. This is an application for bail. The Applicant had been convicted by the Trial Court for the offence punishable under section 376 (2) (f) and sentenced to suffer R.I. for life. 3. The learned counsel appearing on behalf of the Applicant submitted that the complaint was filed two days after the said incident and there was no medical - 2 - APPA. 634 -2011 examination of either the Applicant or the prosecutrix. He has invited our attention to the statement of the Medical Officer, who referred the prosecutrix to the Civil Hospital. He has submitted that the injury certificate in respect of the Applicant and the prosecutrix had not been produced on record. He also submitted that there are several lacunae in the prosecution cases and, therefore, the Applicant has a good case on merits. 5. On the other hand, Mrs. V.R. Bhosale – learned APP for the State invited our attention to the C.A. Report in respect of seizure of the clothes of the accused and the undergarments and the clothes of the prosecutrix. She submitted that the clothes of the Applicant as well as the prosecutrix have blood stains and semen stains. She also submitted that the evidence of the prosecutrix has been corroborated by the C.A. Report and the statement of the Medical Officer. 6. In our view, since the prosecution has failed to produce on record the medical certificate in respect of examination of the prosecutrix and the accused, the prosecution has not established, prima facie, that there was penetration in the vagina of the prosecutrix. The Applicant, therefore, under these circumstances, - 3 - APPA. 634 -2011 deserves to be released on bail, particularly, since the appeal is not likely to be taken up for hearing immediately in near future and the Applicant is in jail since 4th March, 2008 and has already undergone three and half years of actual imprisonment. 7. We are informed that the prosecutrix got married in the meantime. In our view, it would be appropriate if the applicant is released on bail on imposing condition as under. 8. The Applicant shall be released on bail on P.R. Bond in a sum of Rs.5,000/- without any surety subject to condition that applicant shall not enter the jurisdiction of Mhaswad Police Station and shall report to the nearest police station from his new residence once in a month. The Applicant shall give his new address of residence to the Superintendent of Jail before his release. Criminal Application for bail is, accordingly, disposed of. 9. The hearing of the appeal is expedited. Liberty is granted to prepare a private paper-book. (A.M.THIPSAY J.) (V.M. KANADE J.) - 4 - APPA. 634 -2011