1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4113 OF 2009 Kasif Ashafak Mukadam .. Applicant. Vs. State of Maharashtra .. Respondent. Mr.A.P.Mundargi, Senior Counsel with Mr.S.V.Marwadi i/b Shobha Salvi for the applicant. Mrs.Sangeeta Shinde A.P.P. for the State. CORAM : D.B. BHOSALE, J. DATED : 14TH DECEMBER, 2009 P.C. . Heard learned counsel for the applicant and learned A.P.P. for the State. 2. This is the second application for bail. Earlier application (criminal application No.2400 of 2009) was rejected prior to filing of the charge-sheet. The applicant has, therefore, filed the second application after the entire material relied upon by the prosecution is made available to him by way of charge-sheet. 3. The crime has been registered against the applicant and one another for having allegedly committed an offence punishable under sections 376, 384 r/w 34 of IPC. 4. Mr.Mundargi, learned senior counsel for the applicant at the outset invited my attention to the order dated 23rd June, 2009, by which earlier application was rejected and submitted 2 that it is not correct to state that the applicant had taken nude photographs of the prosecutrix and had kept her under constant threat that he would show those photographs to her family members. He then invited my attention to the letter dated 9.4.2009 of the prosecutrix addressed to the Senior Inspector of the concerned police station and submitted that in this letter she has not stated anything against the applicant. In other words he submitted that there is inconsistency in the case narrated by the prosecutrix in FIR and in her letter dated 9.4.2009. He then invited my attention to the FIR and submitted that in any case the applicant cannot be stated to have committed rape as alleged. 5. It is true that in the earlier order it was mentioned that nude photographs were taken by the applicant which is factually incorrect. The photographs, in fact, were allegedly taken by the co-accused and he kept the prosecutrix under constant threat. But this error, in my opinion, would not help the applicant, since it only explains the delay in lodging the FIR. Insofar as the applicant is concerned, the prosecutrix in the FIR has clearly stated that the applicant gave her cold-drink which had some stupefying substance and after drinking the said cold- drink the prosecutrix was stupefied. In her supplementary statement she identified the applicant as a person who gave her cold-drink. From her statement, it is clear that she did not loose 3 her consciousness totally and she could feel that rape was committed by the applicant and co-accused after taking her to some isolated place. The letter dated 9.4.2009 also would not help the applicant at this stage. The letter was given only for seeking police protection and, therefore, the prosecutrix was not expected to reproduce the prosecution case in detail. Merely because in the letter dated 9.4.2009 she did not state anything against the applicant, it cannot be stated, at this stage, that the prosecutrix implicated the applicant falsely. Hence the application is rejected. While passing this order I shall not be understood to have expressed any opinion on merits of the case and the trial Court shall deal with the case uninfluenced by the observations made in this order. Application is disposed of. (D. B. Bhosale, J.)