1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRMINAL APPLICATION (ABA) NO.329 OF 2011 (SANTOSH UPEN ROY //VS// STATE OF MAH. THR. PSO CHAMORSHI, DISTT. GADCHIROLI) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. R.M.Daga, Advocate for Applicant. Mr. M.J.Khan, A.P.P. for Respondent. CORAM : M.N.GILANI, J. DATE : NOVEMBER 16, 2011. The applicant is seeking bail in Crime No.53 of 2011 registered with Police Station, Chamorshi under Section 376(2)(g), 323, 506 read with 34 of the Indian Penal Code. Three accused persons viz. Pornima @ Punabai, Atul Mandal including present applicant, are involved in the said crime. The learned Additional Sessions Judge, Gadchiroli released Atul Mandal and Pornima @ Punabai, which is evident from order dated 6th September, 2011 passed by learned Additional Sessions Judge, Gadchiroli in Misc. Criminal Application No. 168 of 2011. There are broad circumstances which are relevant to decide the application : i) The date of incident is 13.06.2011 and 15.06.2011. ii) Husband of the prosecutrix was away till 17.06.2011. iii) The prosecutrix disclosed the incident to her husband on 17.06.2011 when he returned. iv) The prosecutrix is although dumb is aged about 34 years, having two children, eldest is 9 years old. She is an agricultural labour. v) First Information Report was lodged on 26.06.2011. 2 vi) The explanation appearing in the First Information Report is that the husband of the prosecutrix was apprehending that he would be defamed in the society. vii)On 29.06.2011 the prosecutrix was medically examined. viii)Injuries like abrasion on her person are stated to be caused by hard and blunt object. Injuries were 10 to 13 days old. ix) There are two eyewitnesses whose statements came to be recorded on 28.06.2011. On perusal of the entire material collected during the investigation, this Court is of the view that exercising power under Section 438 of the Code of Criminal Procedure cannot be denied to the applicant. On probability factor story of forcible sexual intercourse appears too weak. Moreover, two co-accused have also been released by the Additional Session Judge. In view of above, the application is allowed. In the event of arrest, the applicant is directed to be released on his executing P.R. Bond of Rs.Twenty Thousand with two solvent sureties in the like amount with a condition that the applicant shall attend Police Station, Chamorshi daily between 10.00 a.m. to 12.00 noon, till filing of the chargesheet. JUDGE RR..