1 Cri.Appln.No.2726/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2726 OF 2011 IN CRIMINAL APPEAL NO. 325 OF 2011 Nivrutti s/o Tulshiram Rokde ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Mr. Satej S. Jadhav, Advocate holding for Mrs. Sadhana S. Jadhav, Advocate for appellant Shri T.S. Lodhe, A.P.P. for respondent No.1. ..... CORAM : U.D. SALVI, J. DATED : 24th August, 2011. PER COURT : 1. Heard. Perused the application and record. 2. The applicant is convicted by the District Judge-5 and Additional Sessions Judge, Ahmednagar, by order dated 24.6.2011 for the offences punishable under Sections 376, 506 of the Indian Penal Code, 1860 and sentenced to suffer R.I. for 7 years and S.I. for 1 year on the respective counts 2 Cri.Appln.No.2726/2011 and to pay fine of Rs.10,000/- and Rs.1000/- on respective counts. By this application, the applicant seeks his release on bail during the pendency of the appeal. 3. The applicant states that, he was on bail during the pendency of trial and had not committed breach of any of the conditions imposed on him; and, therefore, he deserves to be granted the same relief during the pendency of the appeal. The applicant further contends that, on account of an accident, he has suffered permanent privation of his left eye and suffered diffused cerebral oedema resulting into 44% permanent disability of memory. It is further contended that, the prosecution story is concocted inasmuch as the prosecutrix, a 40 year old woman, maintained silence for five long months despite being allegedly ravished by the accused. 4. Learned Advocate for the applicant/ accused pointed out from the evidence of the prosecutrix the fact of her silence and the flaws in her evidence. He submitted that, on this background, the applicant/ accused, who had enjoyed liberty during the trial without committing the breach of any of the conditions imposed therefor, ought to be released during 3 Cri.Appln.No.2726/2011 the pendency of this appeal wherein there are fair chances of success. 5. Learned A.P.P. for the State submitted that the case of rape is held to be proved in the trial and the silence maintained by the prosecutrix can be attributed to the influence the accused wielded as a man having divine powers. 6. The complaint lodged by the prosecutrix on 17.4.2007 with M.I.D.C. Police Station, Ahmednagar reveals the prosecution story. The prosecutrix and her husband were issueless and used to visit the accused for a period of one year with a belief that the accused had divine power. According to the complainant, on 9.11.2006, husband of the prosecutrix did not return from the work and, therefore, she made enquiries at the work place of the husband, where she was told that her husband had not reported to duty; and, therefore, she went to the accused and informed him of the said developments particularly for the reason that in the morning she and her husband had gone to him and the accused had given a sacred ash (Angara) to her husband. 4 Cri.Appln.No.2726/2011 According to the prosecutrix, she followed the advice of the accused for getting to know the whereabouts of her husband. It is in these circumstances, the prosecutrix alleged that the accused came to her residence on 14.11.2006 around 2.00 p.m. and asked her to keep physical relations with him, if she wished her husband to come back to home and the accused also threatened her that she would turn mad with chanting of Mantras by him and these threats compelled her to have sexual intercourse with the accused and, thereafter, the accused left the place leaving the impressions of his palm smeared with semen on the wall. These facts, the prosecutrix further alleged, were not disclosed to anybody out of fear, and as her husband did not return for five months, she again went to the accused on 29.3.2007 when she was again coerced by the accused to have sexual intercourse. Evidence of the prosecutrix is more or less the reiteration of the same story in the complaint, freely laced by improvements. There is hardly any independent evidence that the accused was practicing Godman, who could influence a weak mind. It, therefore, leaves a pertinent question as to why the prosecutrix remained silent for five months after the alleged rape without any cogent answer. 5 Cri.Appln.No.2726/2011 7. The applicant/ accused was on bail. There is no history of misuse of the liberty availed as a result of the bail. Considering these facts and circumstances, the applicant/ accused deserves bail in the present appeal. Hence the order : O R D E R 8. The application is allowed. The applicant/ accused shall be released on P.R. bond of Rs.20,000/- (Rupees twenty thousand) with one or more sureties in the like amount subject to the following conditions : (i) The applicant/ accused shall pay the fine amount. (ii) The applicant/ accused shall not leave District Ahmednagar without leave of this Court and shall keep the police informed of his whereabouts from time to time. ( U.D. SALVI, J. ) fmp/cri2726.11