1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3207 OF 2010 Bapu Bhagwan Dhangar (Ahire), Age 21 yrs., Occu. Shepherd, R/o. Arave, Tq. Sindkheda, Dist. Dhule. ....Applicant. Versus The State of Maharashtra ....Respondent. Mrs. Sadhana Jadhav, Advocate for applicant. Mrs. B.R. Khekale, A.P.P. for respondent. CORAM: V. R. KINGAONKAR, J. DATED: 26th August, 2010. PER COURT : 1. By this application, the applicant seeks bail under section 439 of the Cr. P. C. 2. The applicant is arrested and charge-sheeted in connection with crime No. 55/2010 for offence of rape, criminal house trespass and assault on the prosecutrix. 3. Counsel for the applicant would submit that the recitals of the F.I.R. and the story put forth by the prosecutrix is prima facie improbable. It is argued that the applicant was impleaded in the criminal case only because husband of the prosecutrix came to the 2 house at the mid day time when he was not expected to arrive. It is pointed out that there were no injuries found on person of the prosecutrix. On basis of such arguments and the record about probability of there being consensual sexual intercourse; the learned counsel for the applicant seeks bail. 4. I have gone through the investigation papers with the help of learned A.P.P. It does appear from the recitals of the F.I.R. that husband of the prosecutrix went to the house at about mid day. He noticed that the door of the house was ajar. He noticed that his minor daughter by name Soni was crying outside the house and was sitting on the plat-form (Ota). He, therefore, entered the house and then the applicant gave push to him while bolting away. The prosecutrix then narrated the alleged incident of rape to him. The allegations made by the prosecutrix and her husband would show that at about 2.00 p.m. the applicant again visited his house along with three young sons of his maternal uncle. They assaulted him and other members of the family. They threatened him and left the place. 5. Whether the prosecutrix allowed entry of the applicant in the house and whether she was a consenting party, are the questions which can be decided only after recording of the evidence. At the premature stage, it cannot be presumed that she was consenting party. Though it appears that the incident was disclosed only after the husband came 3 inside the house and then the prosecutrix was found rather in baffled and scared position, yet that circumstance by itself cannot be considered at this juncture. She could have been scared due to said incident of ravishment by the applicant. In this context, the circumstance that minor daughter of the prosecutrix was sitting outside the house and was crying is indicative of probable absence of consent of the prosecutrix. The injury certificate shows that there was tenderness over the intra scapular region, size 3 x 2 inches, when the prosecutrix was clinically examined. She being a married woman, it is difficult to exhibit any injury on her private part. 6. The subsequent part of the story reveals that the applicant and his relatives went to the house of the prosecutrix and threatened her husband and herself of dire consequences in case of lodging any report with the police. This conduct of the applicant goes to show that his release on bail is likely to be detrimental to the fair trial. It is probable that the applicant and his relatives may, can attempt to put the prosecutrix and her family members under pressure or under threat. Considering these reasons and in view of the existence of the prima facie case, the applicant is rejected. [ V. R. KINGAONKAR, J.] ssc/ca3207.10