1 4.apln3083-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3083 OF 2010 Rafique-Ul-Islam Haldar @ Bunty. ..Applicant. Vs. The State of Maharashtra. ..Respondent. .... Mr.H.E. Mooman, Advocate for the applicant. Mr.K.V. Saste, A.P.P. for the State. .... CORAM : A.R.JOSHI, J. DATED : 28TH JULY, 2010 P.C. 1. Heard rival submissions for sometime on this application for regular bail preferred by the applicant for his release on bail during the pendency of the trial in the matter of offence punishable under Sections 376, 506 of Indian Penal Code. 2. Allegations against the applicant are that on 16.1.2010 when the prosecutrix, a girl aged about 14-15 years, went to the house of the applicant/accused asking for the help as her mother was sick. The prosecutrix enquired with the applicant as to whereabouts of his wife to which he 2 4.apln3083-10 informed that his wife had been to Delhi. Thereafter, the prosecutrix enquired for his daughter and on this the applicant told her that she is in the adjoining room. When the prosecutrix was returning back, the applicant stopped her, latched the door from inside and had forcible sexual intercourse. He has also gave her threats of dire consequences if she discloses the incident to anybody. Initially the prosecutrix tried to resist the applicant however he overpowered and committed sexual intercourse. According to the prosecutrix there was bleeding due to such incident. After coming out she narrated the event to her mother and thereafter she was taken for immediate medical help to a nearby dispensary and thereafter she alongwith her parents attended the police station and lodged the complaint, which is C.R. No.16 of 2010 registered with Versova police station, Mumbai. 3. During the arguments, learned Advocate Mr.Mooman for the applicant brought to the notice of the Court, the medical examination report of the prosecutrix and submitted 3 4.apln3083-10 that in the said report there is specific mention as to hymen tear is old one and healed. By pointing out this, it is tried to argue that it was not the first encounter of the prosecutrix for the sexual intercourse or otherwise there would not have been a healed hymen tear. At this juncture for deciding the application for bail it would not be in the fitness of the situation to consider whether or not the said prosecutrix had this first encounter of sexual assault or whether it was also earlier experienced by her. What is material is whether prima facie there is anything to link the present applicant with the offence. Admittedly in the First Information Report, the name of the present applicant is taken. The age of the prosecutrix is also about 14-15 years. On this count also, there is submission on behalf of the applicant that probably said girl is nearing 16 years of age. By this argument, it appears that the learned Advocate for the applicant wants to suggest that probably it might be a case of consent, but, due to some rivalry between the parties, present case was lodged. 4. Considering the submissions and considering the 4 4.apln3083-10 material available, it would not be in the fitness of the situation to release the present application on bail during pendency of the trial. Learned A.P.P. for the State submitted that in near proximity the present matter is fixed before the Additional Sessions Judge, Greater Bombay for framing of the charge. In the result present application is disposed of with following order :- :: O R D E R :: [i] Criminal Application No.3083 of 2010 for bail stands rejected. (A.R.JOSHI,J.) PPD