1 Cri.A.3397.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3397 OF 2011 Uttam S/o Bapurao Gaikwad Age : 60 Years,Occup: Driver, R/o Village Ashti, Tq. Partur, District Jalna. ...APPLICANT VERSUS The State of Maharashtra, ...RESPONDENTS ... Mr.V.B.Deshmukh,Advocate for Applicant. Mr.T.S.Lodhe,A.P.P. for respondent. ... CORAM: U.D.SALVI, J. DATE : 3RD OCTOBER, 2011 PER COURT : . Heard. Perused application and the record. 2. The Applicant, whose appeal against conviction under Section 376 of the Indian Penal Code, recorded by the learned Sessions Judge Jalna, in Sessions Case No. 57 of 2009 is admitted, has moved this application for grant of bail. 2 Cri.A.3397.11 3. One Laxmibai Shete, mother of 35 years old victim lodged a complaint alleging rape on her mentally retarded daughter in the field of the accused on 17.12.2008. A Crime under Section 376 of the Indian Penal Code came to be registered at Crime No.34 of 2008, in the evening of 19.12.2008. Her complaint reveals how her daughter explained her about the commission of rape by the accused and the injuries sustained by her. It also reveals her explanation for delay in lodging the complaint. 4. The learned trial Court believed the evidence of the Complainant P.W-Laxmibai, in the light of the medical evidence on record. 5. Learned Advocate for the applicant-accused submitted that applicant/accused was framed in the said case on account of enmity between him and the witnesses, particularly P.W.5 Mr.Kadpe, on whose advice the case was lodged against the applicant- accused. According to him, there is no evidence 3 Cri.A.3397.11 of victim girl being mentally retarded and the involvement of the applicant-accused in the Crime. 6. Besides, revealing the fact of victim’s plight, P.W-Laxmibai denied that she had lodged false complaint against applicant-accused at the instance of Kadpeanna (P.W.-5 Ashruba Kadpe). She also explained the delay in lodging the complaint with Police. 7. Evidence of P.W.1 Dr. Govind Narwade throws light on the case. According to him, the victim due to her mental condition i.e. mentally retarded was unable to express herself. However, he was not in position to tell as regards the capacity of the victim for expressing herself before any other person. A fact which prominently figures in the evidence of P.W.1- Dr. Narwade is concerning, the detection of injuries by him on the person of the victim, he deposed that on general examination of the victim he found presence of bruises and abrasion on genital region. He also noticed 4 Cri.A.3397.11 abrasion on abdomen of the victim, and age of the injury was within 7 to 12 hours. He also noticed rupture of hymen not more than seven days old and inflamed libia minora. Taking these facts together he opined that the victim was subjected to forcible sexual intercourse and the victim was not habituated to intercourse. As regards physical condition of the accused, he opined that there could be or there could not be any injury on the private part of the accused, if he was to commit forcible intercourse with the victim. 8. Prima facie, therefore, the findings recorded by the learned trial Court about guilt of the accused cannot be overturned. suspension of execution of the sentence, is therefore, not warranted. The application, is therefore, rejected. Sd/- [ U.D.SALVI J.] MTK