1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1672 OF 2010 Charanjit Ramdular Yadav @ Karan. ..Applicant. Vs. The State of Maharashtra. ..Respondent. Mr.S.R.Chitnis, Sr.Advocate i/by S.V.Kotwal for the Applicant. Smt.V.R.Bhosale, APP. For the State. CORAM : R.S. MOHITE, J. DATE : 21st April, 2010 PC : 1 This is an application for grant of bail. The applicant is shown as an accused in C.R.No.I-24/2009 registered by Panvel Railway Police Station under Section 376, 342, 506 read with 34 of the Indian Penal Code. 2 The complaint has been registered on an FIR given by the prosecutrix-Pooja Kamble who is girl aged 17-years. In her FIR, she stated that she is is residing in Sanpada area situated at New Bombay. 2 She stated that her date of birth is 22.6.1992. She stated that about six months earlier, the co accused who is a person by name Mohammed Arshad Khan @ Rahul Patel became acquainted with her and started coming to her house. That, on 7.11.2009 she and her mother invited the co accused Mohammed Arshad Khan @ Rahul Patel to their house and told him that they were in need of Rs.10,000/- for paying rent and asked him to give the money to them on the promise that it will be repaid when some money due to her mother in the next month, was received, Mohammed Arshad Khan agreed to give money if the prosecutrix was married to him. Since this was not agreeable to the prosecutrix and her mother, he left the place saying that he will find out some acquaintance who was willing to give them money. It is her case that on 8.11.2009 the present applicant rang up from his mobile bearing No. 9967142409 and asked the prosecutrix as to whether she was in need of money. The prosecutrix asked him as to who had given her number and the 3 applicant replied that number was given by the co accused Mohammed Ashraf Khan. The prosecutrix told him that she will call him back. In the evening she informed this fact to her mother and later rang the applicant on 9.11.2009 and asked him to pay her Rs. 10,000/-. The applicant promised to give that money in the evening but did not turn up. It is the case of the prosecutrix that on 11.11.2009 at about 10.45a.m. she again rang up the applicant on his mobile phone and requested him to pay money. The applicant informed her to come at Panvel Railway Station at about 1.00p.m. The prosecutrix started from Sanpada Station and reached to Panvel station. After reaching there she called up the applicant on mobile phone and requested to come on the railway station. After some time the applicant came there and when the prosecutrix asked him for money she was told that his friend was going to get money in a hotel and they should to go to the said hotel. The prosecutrix states in her complaint that since she was in need of money she kept mum. 4 The applicant and the prosecutrix reached the hotel at about 1.45p.m. and the hotel register indicates that the applicant gave his own name as well as the real name of the prosecutrix which was entered into the register and proceeded to a room. The applicant called for a cold drink which was provided by the waiter, whose statement has been recorded. It is further the case of the prosecutrix that there after she was raped by the applicant Karan against her wishes once and after the said rape co accused Mohammed Ashraf Khan came there. He helped Karan to rape her a second time and thereafter he also raped her. In short, it is her story that she was raped thrice by the two accused persons. It is her story that at about 4.00 p.m. the three of them left the hotel. The applicant told her that he had taken her photographs and she should not disclose to anybody and threatened her if she did so then he would show the photographs to everybody. They thereafter left her at Khandeshwar Railway Station. 5 3 The investigation papers revealed that at about 4.30p.m. one lady Home Guard found her. On questioning, she narrated her story to the said lady Home Guard, whose statement has been recorded. At about 4.30p.m., in the presence of the lady home guard prosecutrix called her mother who worked as a nurse in Wadia Hospital at Parel. The statement of the mother has been recorded. She starts that on receiving the phone calls from the prosecutrix she tried to leave the hospital early but her officers did not allow her and thereafter, after completing her duty hours she reached Khandeshwar Railway Station where she found her daughter sitting. On questioning, her daughter narrated her story. Then her mother contacted the police at the Railway Station who then referred her to Panvel Railway Police Station. She states that Panvel Railway Police took them to the hotel and after making some enquiry later sent her for medical examination to the hospital. The 6 investigation papers indicate that the prosecutrix was examined in the hospital on 12/11/2009 in the morning at about 9.a.m. 4 During her examination a swab was taken and along with the clothes of the prosecutrix and the same were sent to C.A. The Medical Certificate does not indicate any injury though the story of the prosecutrix is of rape by two men against her consent, three times. The medical certificate does not indicate any injury on her person including her private part. On a specific questionanare given by the Investigating Officer Dr. opined that the factum of intercourse was not evident from the medical examination. It must be remembered that the girl was sent for medical examination and the swab was taken before she had taken a bath or changed her clothes. The C.A. Report indicates that no semen were detected either on the vaginal swab or pubic hair of the prosecutrix . No matting was found. No blood was detected on her nails. Out of 7 the four pieces of clothing taken from the prosecutrix semen of a group which is inconclusive is found on her nicker. Semen is of an indeterminate group is detected from the bed sheets and pillow taken from the hotel. 5 The police have also found out about the calls which are made on the mobile telephone between the prosecutrix and the two accused. What emerges from the analysis of the telephone calls is that from 6.37 p.m. On 11.11.2009 till 8.59p.m. on the same day, i.e. after the period the prosecutrix was allegedly dropped at the railway station, 4- calls are found to have been made by the prosecutrix to the present applicant. Similarly, between 6.24 p.m. and 9.12.p.m. on the same day 12 calls are made by the prosecutrix to the co accused Rahul. 6 Making of such calls from 6.00p.m. till 9 p.m. to the various accused was sought to be 8 explained by the learned prosecutor by stating that these calls were made at the behest of the Panvel Police in order to trace out the accused persons. The FIR which has been lodged however shows that information was given to the police was at about 11.45p.m. The prosecutrix herself does not talk about making of any telephone calls at the behest of the police. Her mother who picked up her daughter at the railway station also does not talk about the police asking them to make phone calls. I find from the statement of the mother that she started from Parel after her duty hours. She stated that she started by railway train. I find it difficult to believe that she could have reach Khandeshwar Railway Station before an hour after her duty was over. She categorically stated that her daughter was sitting at the railway station. She did not disclose about the phone calls made to the accused from the the police station. The learned APP states that there is no entry made in the case diary regarding any such calls. 9 7 Viewed in the aforesaid factual background without expressing any opinion on merits, I find that there are several features particularly relating to the medical and scientific evidence which do not fit into the prosecution story. In the circumstances, It may be possible that prosecution may fill these gaps at the stage of leading of the evidence. In the aforesaid circumstances, I am inclined to grant bail to the applicant who has been in custody since 2.12.2009 subject to certain stringent conditions. It is therefore, directed pending his trial in pursuance of C.R.No.I-24/2009 registerd by Panvel Railway Police Station, the applicant will be released on bail in the sum of Rs.25,000/- with one surety in the like amount subject to the condition that he will stay outside the Thane District and before his release he will inform the I.O. the address where he intends to stay and will not change that address without informing the I.O. in writing. He will be allowed 10 to enter the Thane District only on the dates for attending his trial and he will leave the Thane District immediately after the trial is over on the same day. Bail is granted on further condition that he will attend all the dates of the trial unless exempted and will not make any attempt to contact the prosecutrix or any of the witnesses. Application is disposed off in the aforesaid terms. Parties to act on a copy of this order duly authenticated by the registry of this court. ( R.S. MOHITE, J.)