IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 349 OF 2009 IN CRIMINAL APPEAL NO. 368 OF 2009 Satish Vithalrao Shende. ..Applicant. Vs. The State of Maharashtra .. Respondent. Mr Rajendra Panchal Advocate for the Applicant. Mr D.P. Adsule, A.P.P. for the State. CORAM : A.R. JOSHI,J. CORAM : A.R. JOSHI,J. CORAM : A.R. JOSHI,J. DATED : 28th April,2009. DATED : 28th April,2009. DATED : 28th April,2009. P.C.:- P.C.:- P.C.:- 1. Heard rival submissions for some time. 2. The applicant-accused is convicted on 28th November, 2008 by the learned Additional Sessions Judge, Pune for the offence punishable under Section 376 (2)(f) of the Indian Penal Code and sentenced to suffer R.I.for ten years and fine of Rs.1,000/-, in default R.I.for three months. Reportedly, in the late afternoon on 4th May, 2006 when a small girl, aged about 4 and half years playing in the vicinity was taken away by the applicant accused and he committed forcible sexual intercourse. After some time, the said girl came crying and narrated incident to her mother, taking the name of the accused as Satish Kaka. The mother of the prosecutrix, having no residential phone, some how contacted her relative, a Homoeopathic doctor, prosecution witness. He arrived at the house of the prosecutrix on that night and after examining the private parts of the girl suspected that it was a case of rape and thereafter matter was reported to the police. The said complaint was lodged by the mother of the prosecutrix. 3. During the arguments, it is submitted on behalf of the applicant-accused that medical evidence is negative so far as penetration in the private parts of the prosecutrix. As against this, there is substantive evidence of P.W.s 1 and 2 i.e. the mother of the prosecutrix showing that accused had committed forcible sexual intercourse. Whether or not there was a penetration and whether it is case of attempt to commit rape, would be the aspect to be decided at the time of hearing of the appeal. Though since the date of his arrest i.e. 5.5.2006, the applicant-accused is in jail, in the opinion of this Court, at least, at this stage, it is not the case in which the applicant can be released on bail considering material against him. 4. In the result, present application is rejected and accordingly, disposed of. (A.R.JOSHI,J.) (A.R.JOSHI,J.) (A.R.JOSHI,J.)