(1) CRI.APP. 3410.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3410 OF 2010 1. Raju S/o Govind Chavan, Age : 28 years, Occu.: Agri. 2. Prakash S/o Shankar Chavan, Age : 24 years, Occu.: Agri., Applicant no.1 and 2 are R/o. Pagargaon Tanda, Tq. Mudkhed, Dist. Nanded 3. Vithal S/o Ratan Rathod Age : 28 years, Occu.: Agri., R/o. Karla Tanda, Tq. Umri, Dist. Nanded .. Applicants VERSUS The State of Maharashtra Through Police Station, Ardhapur, Dist. Nanded (Copy to be served on Public Prosecutor, Hon'ble High Court of Judicature at Bombay, Bench at Aurangabad) .. Respondent Mr. S.J. Salunke, Advocate for the Applicants Mr. N.H. Borade, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 14TH SEPTEMBER, 2010 ORAL ORDER:- 1. By this Application, the applicants seek bail under section 439 of the Code of Criminal Procedure. (2) CRI.APP. 3410.2010 2. At the first blush, the accusations made against the applicants would indicate their involvement in the heinous crime of gang-rape. Still, however, if the veil is removed and the first impression is overlooked for a moment, there appears material on record to infer absence of prima facie material against the applicants to say that they are involved in the serious crime of gang-rape. 3. Having heard learned Advocate for the applicants and learned APP and on perusal of the investigation papers, it prima facie appears that the prosecutrix and her husband are facing criminal prosecution for offences under section 307, 366, 497, r/w. 109 of the Indian Penal Code as per the chargesheet filed against them in the Court of Mudhkehd. It appears that real brother of the applicant no.2, namely, Mohan Shankar Chavan is one of the witness named in the chargesheet filed against the prosecutrix and her husband. Applicant no.1 Rajesh is also one of the witness named in the (3) CRI.APP. 3410.2010 chargesheet. Thus, it is manifestly clear that the prosecutrix was knowing both of them well prior to the alleged incident and moreover she had reason to believe that they are the witnesses who would like to depose against herself and her husband in the said criminal case for offence under section 307 of the Indian Penal Code etc. The FIR itself shows that on 2.3.2010, the prosecutrix had gone to the Court of Judicial Magistrate at Loha for obtaining further date in the criminal case which has been instituted against her husband for offence of theft. There is prima facie material to infer that her husband and her family members were facing criminal prosecution and, therefore, could be the persons with criminal background and may be having criminal tendencies. It appears that she and her husband had left the native hamlet called Pagra Tanda and have shifted to Nizamabad for earning their livelihood. The prosecutrix is a married woman aged about 46-47 years. The FIR purports to show that she was returning to house of her daughter by name Sushila in the relevant noon. It is stated in the FIR that four (4) CRI.APP. 3410.2010 unknown persons boarded in the auto-rickshaw. When the auto-rickshaw vehicle reached near MGM college, which is situated in the outskirt of Nanded city she asked the auto-rickshaw driver to stop the vehicle however, those unknown persons directed the auto- rickshaw driver to drive the rickshaw upto Bhokar interjection. The auto-rickshaw was taken to the said interjection. It is alleged that the unknown persons took the prosecutrix to an agricultural land. They consumed liquor. They had also cooked mutton at the place and thereafter the alleged incident of gang-rape is said to have been committed by each of them. The incident is said to have taken place between 2nd and 3rd March, 2010 during the night time. 4. According to the prosecutrix, when husband of the prosecutrix learnt about the incident and came to Nanded, then the prosecutrix disclosed the incident to him. He dispelled the fear in her mind. It was thereafter that she mustered courage to spell out names of the culprits and thereafter on 5.3.2010 (5) CRI.APP. 3410.2010 the names of four persons who raped her were disclosed by her during her additional statement. In this background, it is important to notice that such explanation appears to be rather lame. Considering the fact that the prosecutrix as well as her husband are already facing some criminal cases, and moreover she alone had gone to Loha Court for obtaining further date in the criminal case against her husband it is prima facie unlikely that she would have been so much so scared that she did not disclose names of the accused persons under the spell of fear. As said above, the applicant no.1 Rajesh is witness in the criminal case pending against the prosecutrix and her husband. It also appears that son of the prosecutrix, her husband and herself had gone to agricultural land of one Sopaji Patil on 13.10.2009 and had assaulted the wife of their son. She was injured and therefore, the prosecution for offence under section 307 of the Indian Penal Code was instituted against the prosecutrix and her husband etc. The FIR clearly shows that on 3.3.2010, the prosecutrix stated before the Police that four (6) CRI.APP. 3410.2010 unknown persons had taken her to that agricultural land. They had consumed liquor while she was present in the land. They had also cooked mutton in her presence. Had she been subjected to forcible sexual intercourse, and was kidnapped from the place, in the auto-rickshaw, ordinarily she would have raised hue and cry on the way itself or atleast after reaching the agricultural land. The FIR further shows that she only described the persons as the young men in the age group of 25/30 years. The investigation papers purport to show that statement of her husband i.e. Gangaram Jadhav was recorded during the course of investigation. He narrated in his statement that when he took the prosecutrix to the Police Station at Ardhapur then the Police had shown her the applicants to whom she identified at the Police Station. This is strange way of identification parade. In fact, when the applicants were known to the prosecutrix, there was no question of their identification at the Police Station. It need not be reiterated that real brother of the applicant no.2 and the applicant no.1 are shown to be the witnesses in the counter criminal (7) CRI.APP. 3410.2010 case which is pending against the prosecutrix and her husband and son. 5. In this view of the matter, there appears prima facie material to infer that the prosecutrix either improvised the story after arrival of her husband or that there is possibility of the absence of proper identification of the culprits. The prosecutrix being a married woman of middle age group, it is not expected that there would be clear evidence about forcible sexual intercourse. The provisional medical certificate shows however that no injury was found on the genital area. There were few nail marks on the neck and abdomen. The Medical Officer opined that from clinical examination he was unable to conclude whether the prosecutrix was subjected to rape. In case of successive rape by four unknown persons, by using force against the prosecutrix, particularly in the area of the agricultural land, where the rough surface was the place of incident, it was more probable that the prosecutrix could be injured during the course of resistance and her clothes might have been tattered. (8) CRI.APP. 3410.2010 6. Having regard to the previous background of the prosecutrix and her family members and in view of the foregoing reasons, the applicants are entitled to seek liberty on certain terms. The following order would meet the ends of justice:- I. The applicants be released on bail on furnishing of bail bonds in sum of Rs.35,000/- (Rs. Thirty Five Thousand) each with one solvent surety each in the like amount, to the satisfaction of the Court of Sessions at Nanded and on condition that they shall not enter the limits of village Pagargaon Tanda during the pendency of Sessions Case and shall report their presence to the P.S.O. of concerned Police Station at Nanded daily between 7.00 pm. to 9.00 pm. till the pendency of the Sessions Case. II. They shall not contact any of the prosecution witness in any manner nor shall make any attempt to tamper with the prosecution evidence. (9) CRI.APP. 3410.2010 III. Any deviation and breach of the directions/conditions may entail cancellation of the bail. 7. Criminal Application is allowed in the above terms. Sd/- [V.R. KINGAONKAR, J.] arp