17crn5437-09 1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5437 OF 2009 1. Mr.Tosages @ Dagabaz Sarkar Rajput Pawar, 2. Mr.Mandil Sarkar Rajput Pawar, & 3. Mr.Rubitlal Dubraj Rajput. ..Applicants. Vs. The State of Maharashtra ..Respondent. .... Mr.S.R. Chavanke, Advocate i/b. Bhise & Asso. for the applicants. Mr.K.V. Saste, A.P.P. for the State. .... CORAM : A.R.JOSHI, J. DATED : 2ND JULY, 2010 P.C. 1. Heard rival submissions for sometime on this application for regular bail preferred by three applicants for 17crn5437-09 2 their release on bail during pendency of the trial for the offences punishable under Sections 396, 376(2)(g), 326, 449 and 380 of Indian Penal Code. 2. Allegedly on the fateful night of 15th December, 2008, when the complainant was present at the house of his mother­in­law and they were chitchatting, 5­6 unknown persons entered their courtyard, house and assaulted the complainant and his mother­in­law with wooden logs causing severe bleeding injuries to both. Due to the injuries sustained by the mother­in­law of the complainant, she was taken to hospital. However, she succumbed to the injuries. In the postmortem report and also in the medical certificate produced by the Doctor there appears to be injuries and abrasions on the private parts of the said woman thus indicating to her molestation and possible sexual exploitation by the assailants as it is the case of the complainant that after such initial assault on him and his mother­in­law, he felt unconscious and subsequently knew regarding injuries to his 17crn5437-09 3 mother­in­law. During panchnama blood was found in the varanda of the house. Various samples were collected. Reportedly immediately on the next day the applicants were arrested while wondering in the same village in suspicious manner. They were interrogated. They were put to identification and were identified by the complainant. 3. During the arguments, learned Advocate Mr.Chavanke for the applicants strongly submitted that in the FIR there is no mention as to how he could notice the said assailants so as to identify them after about a week when there is no specific mention in the FIR as to what was the source of light. It is further submitted that in the supplementary statement, he has indicated that there was some kerosene lamp burning in the varanda. According to the applicants, it is a concocted story against them and they have been falsely implicated. 4. As against above, there is also the prima facie material by way of statements of witnesses that immediately after the said incident of assault and dacoity at the house as 17crn5437-09 4 mentioned by the complainant, there was similar such incident at a distance of about 4 Kms from the place and at about 8:00 p.m. to 8:30 p.m. in the same night at that place also a another woman was assaulted and one tape­recorder and one Nokia mobile handset was taken out from that house. Apparently, it was the job of some gang looting and robbing persons in a series of offences, one after the another. 5. What is of much importance in the present matter is the arrest of the applicants on the very next day on suspicion and finding of blood stained clothes from their person and moreover their identification at the test identification parade within a week's time. 6. During the arguments, it is argued on behalf of the applicants that there is no cognate material that any of the applicants had committed the sexual offence with respect to the deceased woman. On this aspect whether or not there was any sexual offence, is not material so far as deciding of the present application for bail. The factual position still 17crn5437-09 5 remains, as fortified by the contents of the postmortem report, that there was a fracture of the frontal skull bone of the deceased woman and there were injury marks and abrasions on her private parts and also on her mammary glands/chest. It is for the appreciation of the evidence as to whether there was any sexual offence committed by the applicants or not but the fact remains that the applicants are facing the charges for dacoity with murder and infact certain recoveries are forthcoming from the said applicants. 7. As the chargesheet is already filed and in immediate proximity the charges can be framed and mater can be put to trial, it would not be in the fitness of the situation to release the present applicants on bail more so when allegedly similar such offences punishable under Section 395 have been reportedly lodged against the present applicants by the Koyana nagar police station and reportedly the addresses given by the applicants as to of Madhya Pradesh State have been found to be fictitious. All the same, there is nothing to 17crn5437-09 6 entertain the present application. Hence order :­ :: O R D E R :: [i] Criminal Application No.5437 of 2009 for regular bail stands rejected. (A.R.JOSHI,J.)