HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/judgments/BA4582011.odt 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. CRIMINAL APPLICATION (BA) NO. 458 OF 2011 Dayanand Mallikarjun Khandare R/o Shengaon, Tah. Jioti, Distt. Chandrapur :: APPLICANT -: Versus :- State of Maharashtra, through P.S.O. P.S. Tekamandwa, Distt. Chandrapur :: RESPONDENT ............................................................................................................ Mr R. M. Daga, Advocate for the Applicant Shri. S. S. Doifode, A.P.P. for the State ............................................................................................................ CORAM: U. V. BAKRE, J. DATE OF RESERVING ORDER : 12th SEPTEMBER, 2011 DATE OF PROUNCING ORDER : 14th SEPTEMBER, 2011 O R D E R : 1. The applicant, who has been arrested by Tekamandwa Police in it’s Crime No. 07/2011 registered for offence punishable under Sections 363, 366, 376 of the Indian Penal Code (I.P.C.) read with Sections 3(1)(xii) and 3(2)(v) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (S.C. & S.T. Act), has filed this application for bail. 2. Charge-sheet has been filed in Rajura Court. Case of the prosecution, in short, is that on 22/10/2010 at about 21.30 hrs., to 23.30 hrs., the applicant kidnapped the victim who belongs to the Scheduled Caste and raped her by the side of the road under a tree at Mouza Shengaon. HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/judgments/BA4582011.odt 2/5 3. The applicant has alleged that though the incident is said to have taken place on 22/10/2010, however, F.I.R. was lodged on 27/10/2010 and surprisingly the applicant has been shown to be arrested on 26/10/2010 and this shows malafide in the prosecution case. The applicant has further stated that the F.I.R. reveals that the prosecutrix disclosed to her mother the incident of rape having taken place in an Auto Rickshaw but the statement of the prosecutrix shows that the incident had taken place beneath a tree at Mouza Shengaon. This inconsistency, according to the applicant, makes prosecution case doubtful. It is further alleged that the eye- witness Krishna comes out with a new theory that he and applicant were traveling in Tata Sumo vehicle. It is also alleged that the medical evidence and version of prosecutrix are contrary to each other. It is also stated that the investigation is already completed and the charge-sheet is filed and, therefore, presence of the applicant is not necessary in custody. 4. By way of reply, the respondent has resisted the application on the ground that there is prima facie evidence against the applicant and that the applicant has committed heinous offence and he does not deserve to be released on bail. 5. Heard arguments. Mr. R. M. Daga, learned Advocate argued on behalf of the applicant whereas Mr. S. S. Doifode, learned A.P.P. argued on behalf of the respondent. HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/judgments/BA4582011.odt 3/5 6. I have gone through the final report form and the case papers made available to me by the learned A.P.P. 7. The statement of Krishna Pandhari Jayebhaye, recorded on 28/10/2010, in clear terms reveals that on 22/10/2010, at night time, the applicant took the victim in Tata Sumo vehicle at Shengaon, in which vehicle he was also sitting and then the applicant took the victim by the side of the road under a tree and committed rape on her. 8. It is true that the complaint lodged by the mother of the victim on 27/10/2010 is against unknown person and there is inconsistency about the vehicle which was driven by the culprit. The vehicle is stated to be an Auto. Further there is no mention about the presence of the third person namely Krishna. The complaint of the mother of the victim is based on the statement made to her by her daughter, the victim. In her statement dated 28/10/2010, the victim has stated the same facts as mentioned in the complaint by mother of the victim. However, in her supplementary statement dated 18/11/2010, the victim has clarified that the vehicle was not an Auto but a white coloured Tata Sumo, wherein there was one more person by name Krishna Pandhari Jayebhaye. 9. The applicant has been identified by the victim as rapist in an identification parade held by Tahsildar on 18/12/2010. HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/judgments/BA4582011.odt 4/5 10. The medical evidence in respect of the applicant reveals that he is capable of performing sexual intercourse. The medical evidence in respect of the victim reveals that hymen is ruptured and intercourse has occurred more than 24 hours back. The victim was examined on 18/11/2010. 11. There is delay about 6/7 days in lodging the complaint. However, the same has been explained in the complaint. There is a mistake in the final report form about the date of arrest of the applicant as 26/10/2010. However, the arrest form correctly shows the date of arrest as 28/10/2010. There are some inconsistencies as pointed out above about the vehicle and about presence of the Krishna. Learned Advocate Mr. R. M. Daga, has highlighted all the said points in his arguments. The records reveal that the victim is mentally affected and gets fits. 12. It was also contended by learned Advocate Mr. Daga that the investigation, as far as offence under the S.C. & S.T. (Prevention of Atrocities) Act, is illegal since not conducted by Deputy Superintendent of Police (Dy.S.P.) as required by rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995. The investigation in respect of the offence of kidnapping for forcible illicit intercourse and rape, cannot be illegal. Hence, the above objection in respect of offence under S.C. & S.T. Act need not be dealt with, at this stage. HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/judgments/BA4582011.odt 5/5 13. The offence under Sections 363, 366 and 376 of the IPC is a serious offence. Rape is not only a crime against the victim (woman) but is a crime against the entire society. Psychology of a woman is destroyed as a result of such crime committed against her. Prima facie case has been made out against the applicant for such heinous crime. The aspects of delay, inconsistencies etc., are defences which will be considered on merits. 14. In my view, the applicant is not entitled for bail at this stage since though the charge-sheet has been filed, trial has not begun and the victim as well as eye-witness is yet to be examined. The likelihood of applicant tampering with witnesses cannot be ruled out. 16. In the result, the application is rejected. JUDGE Punde.