1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3344 OF 2010 Deshmukh Bandu Pawar ..APPLICANT -VERSUS- The State of Maharashtra ..RESPONDENT ......... Mrs. S.S. Jadhav, Advocate for applicant. Mr. N.H. Borade, A.P.P. for respondent. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 7th October, 2010. PER COURT : 1. This is an application for bail. The applicant is arrested in connection with Crime No. 52/2010 registered at Raver Police Station for the offence punishable under Sections 376 and 506 of the Indian Penal Code. 2. Briefly stated, the F.I.R. purports to show that the prosecutrix is a daughter of informant and used to reside together with the family members including her parents, grand-father etc. She was taking education in Ashram School at village Pal. She 2 was in 5th standard. She is stammer and is mentally retarded to some extent. Her mother noticed on 31st March, 2010 that belly of the prosecutrix was bulging and as such due to suspicion she was taken to medical practitioner at village Savada. The medical practitioner informed the mother that the prosecutrix was carrying pregnancy of 5th month. The mother, therefore, took the prosecutrix in confidence and made due enquiry. The prosecutrix narrated to her mother that somewhere in October, 2009 at about 2 p.m. she had gone to toilet where the applicant, who was working in the Ashram School as a cook, steadily come from her behind and pressed her mouth. He thereafter committed forcible sexual intercourse with her. He threatened that if she will tell anybody, she would be done to death by him. She further narrated to the mother that thereafter from time to time he used to go behind her in the toilet meant for girls and used to commit the sexual intercourse with her. The mother of the prosecutrix and her husband got aborted the child in womb with fear that they would be defamed due to the incident. 3. The learned Advocate for the applicant would submit that the story narrated by the mother of the prosecutrix is after thought. It is contended that due to delay of more than five-six months, the allegation of the forcible ravishment of the prosecutrix 3 are rendered in realm of doubt. It is argued that the name of the prosecutrix was deleted from the muster roll of the school from the month of August, 2009, and therefore, the averments that for the first time she was ravished in the month of October, 2009 is rather sophisticated allegations. The learned Advocate would further submit that since the prosecutrix has been subjected to abortion, it is probable that the parents of the prosecutrix intentionally caused disappearance of material evidence. Consequently, the learned Advocate urged to grant bail to the applicant. The learned A.P.P. opposes the bail application. 4. The recitals of the F.I.R. prima facie show that the prosecutrix was studying in 5th standard notwithstanding the fact that she was aged about 17 years at the relevant time. It appears, therefore, that her IQ ( Intelligent Quotient) was below average. In other word, she is girl of less understanding, could be probably exploited due to such deficiency. The medical certificate also shows that the Medical Officer noticed the fact that the prosecutrix is mentally retarded. It is found that her IQ is in the range of 50-69. Thus, it has come on record that the prosecutrix was a gullible young girl, who could be easily made prey for the sexual assault because of lack of her understanding and below average level of Intelligence. The applicant is cook attached to the Ashram School. 4 It is of common knowledge that in Ashram School, particularly in the rural area, there are less number of staff members. The cook has every opportunity to come in close contact with the students, including the girl students of the Ashram School because he is supposed to cook food for them and serve them. It is probable, therefore, that the applicant was knowing the mental deficiency of the prosecutrix. It is difficult to say that the prosecutrix herself understood the act of sexual intercourse and could have consented to such act of the applicant. 5. The very fact that she was ravished in a toilet meant for girls is indicative of intention of the applicant. It is more probable that he desired to prevail on the prosecutrix as such a secluded place and obtained sexual pleasures by obtaining undue advantage of her precarious condition. The medical report shows that the hymen was absent when the prosecutrix was clinically examined. It was found that she had undergone abortion though the date of such abortion was not known. The F.I.R. itself shows that she was got aborted in the hospital of Dr. Warke at Savada. In fact, the Investigating Officer is under obligation to make enquiry with the Medical Practitioner (i.e. Dr. Warke) regarding legal abortion or if anything illegal is noticed then to take appropriate action against such medical practitioner. For, the F.I.R. itself shows 5 that the pregnancy was of five months. So, prima facie, it appears that the pregnancy was illegally terminated with the active assistance of medical practitioner, namely, Dr. Warke. 6. There is no tangible reason as to whey the applicant should have been named by the mentally retarded girl as rapist. The act may fall within the ambit of Section 376(2)(c) of the Indian Penal Code. Section 376(2)(c) of the Indian Penal Code reads as follows : "Section 376(2)(c):being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution;" 7. It appears from the plain reading of section (c) of sub- section (2) of Section 376 of the Indian Penal Code, it covers the staff members of the women's or children's institution and if such staff members take advantage of his official position and commits rape on any inmate of place or institution then the provision may be attracted. Needless to say the gravity of offence is enhanced in view of the alleged exploitation of the prosecutrix. Under these circumstances, the application deserves to be dismissed and is 6 accordingly dismissed. The Investigating Officer be informed by the learned A.P.P. to record the statement of Dr. Warke and obtain the necessary action regarding the illegal abortion. (V.R.KINGAONKAR) JUDGE gas/cri3344.10