1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3258 OF 2010 Pappu @ Anil s/o. Jalindar Bargaje, Age 21 yrs., Occu. Agril., R/o. Jogewadi, Tq. Pathardi, Dist. Ahmednagar. ....Applicant. Versus The State of Maharashtra, Through : Police Station, Pathardi, District Ahmednagar. ....Respondent. Mr. K.D. Bade-Patil, Advocate for applicant. Mrs. B.R. Khekale, A.P.P. for respondent. CORAM: V. R. KINGAONKAR, J. DATED: 26th August, 2010. PER COURT : 1. By this application, the applicant seeks bail under section 439 of the Cr.P.C. 2. The applicant is arrested and charge-sheeted for an offence of rape and criminal house trespass besides criminal intimidation. It is alleged that on 24th May 2010 he intruded in the house of the complainant wherein minor daughter of the complainant, aged about 15 2 years, was sleeping. Allegedly, the applicant ravished her. At the relevant time, one Ananda Bade was passing from nearby place and heard cries of the prosecutrix. So, said Ananda immediately chained the front door of the house in order to call other neighbourers. By that time, one Ashok Bade came there and pushed away him (Ananda Bade) and thereafter, opened the door after removing the chain. Applicant thereafter fled away from the place. 3. Having heard learned counsel for the applicant and learned A.P.P. and on going through the investigation papers, it prima facie appears that the prosecutrix used to remain alone at the residential house whereas her father used to go to the agricultural land and used to sleep in the cattle-shed. There is hardly any prima facie evidence to infer that the applicant committed house breaking in the relevant night prior to entering the house of prosecutrix. The medical evidence also shows that age of the prosecutrix was not determined by conducting Ossification Test. No injury was found on her person. She was referred to gynecologist, yet the report of the gynecologist is not found in the investigation papers. In other words, it may be gathered that the medical evidence on record does not prima facie corroborate the version of the prosecutrix. Her conduct also appears to be rather indicative of consent because had she immediately raised the cry, then perhaps the some of the neighbouring house owners might have rushed to the house. So also, had she resisted forceful sexual intercourse, some minor injuries may 3 have occurred on person of the applicant and she could have received some injuries. That is not borne out from the record. Under such circumstances, it will have to be said that the applicant may not be guilty of the offence punishable with death or imprisonment of life. 4. In the result, the application is allowed. The applicant is directed to be released on bail on furnishing bail bond in the sum of Rs. 25,000/- (Rupees twenty five thousand) with one solvent surety bond to the satisfaction of the Court of Sessions and on condition that he shall not enter village Jogewadi during the period of the trial and shall not contact any of the prosecution witnesses and shall make no attempt to tamer with the prosecution evidence. If such undertaking is given by him while furnishing the bail bond before the Court of Sessions, then only the release order may be issued. If he will commit the breach of the undertaking, then the Sessions Court may issue warrant of his arrest for failure to comply with the conditions. Application is disposed of. [ V. R. KINGAONKAR, J.] ssc/ca3258.10