1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3764 OF 2010 Avinash s/o Mahadu Bansode ...Applicant VERSUS The State of Maharashtra and another ...Respondents ..... Shri V.D.Salunke, advocate for the applicant Shri D.V.Tele, A.P.P. for respondents ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 12 th October, 2010 PER COURT :- 1 Heard Shri V.D.Salunke, advocate for the applicant and Shri D.V.Tele, A.P.P. for respondents. 2 This is an application preferred by the applicant seeking anticipatory bail in connection with C.R. No. 31 of 2010, registered at Majalgaon police station, District Beed, for the offences punishable under Sections 376, 420 and 506 of the Indian Penal Code. 2 3 It appears that complaint has been registered on the basis of the first information report lodged by the complainant namely Mira Potbhare on 10.3.2010 alleging that the applicant herein committed rape repeatedly upon the said complainant on the false assurance of marriage with her. It also reveals that about two years back on one day the applicant, namely Avinash Bansode entered into the house of the complainant when she was alone in the house and committed rape upon her under threat of committing her murder. The first information report also recites that while leaving the house of the complainant, the applicant gave threats to the complainant that she should not disclose the act of rape upon her to anybody, otherwise he would kill her. The month and year of the said act was March, 2008. 4 The said first information report further reveals that after lapse of four days, again when the complainant was alone in the house, the applicant came to her house and assured her that he would marry with her and thereafter he committed rape upon her on the false assurance of marriage with her, which continued for about two years repeatedly. The said complaint also reflects that in addition to the said false promise of marriage, the applicant assured the complainant to construct house for her, and therefore, the complainant did not disclose the said fact to anybody else for long 3 period. The said complaint further reveals that ultimately prior to day of lodging the complaint, the applicant refused to marry with the complainant and threatened her that if she filed any complaint, he would eliminate her. Hence, the complainant lodged the complaint on 10.3.2010 against the applicant and offence came to be registered against him under C.R. No. 31 of 2010 at police Station Majalgaon, District Beed. 5 Learned counsel Shri V.D.Salunke appearing for the applicant canvassed that the complainant was apparently major at the time of commission of the alleged act of rape and there is substantial delay of more than two years in lodging the first information report. It is also contended by the learned counsel for the applicant that the applicant has cooperated in the investigation so far and his medical examination also has been conducted, as well as his finger prints also have been taken during the course of the investigation, since he was granted interim relief in the earlier proceedings. Learned counsel for the applicant further submitted that the applicant is ready and willing to cooperate in further investigation and there is no necessity of any custodial interrogation of the applicant, more particularly considering the efflux of time of about more than two years. 4 6 Learned counsel for the applicant also relied upon the judicial pronouncements of this court in the case of Anil @ Bowa Aashanna Nannewar vs State of Maharashtra, reported at 2009 (1) Bom.C.R. (Cri.) 5 (Nagpur Bench); in the case of Anwar Khan Iqbal Khan vs State of Maharashtra, reported at 2010 ALL MR (Cri) 2124 (Nagpur Bench); and in the case of Sandeep s/o Kaniram Rathod vs State of Maharashtra, reported at 2010 ALL MR (Cri) 2673 (Nagpur Bench), and submitted that the conviction against the applicant cannot be sustained for the offence punishable under Section 376 of the Indian Penal Code on the false promise of marriage, and consequently, submitted that present applicant deserves to be enlarged on anticipatory bail in the event of his arrest in the afore said C.R. No. 31 of 2000. 7 Learned A.P.P. opposed the present application vehemently and submitted that the contents of the first information report reveal that when the rape was committed upon the complainant for the first time, there was no alleged promise of marriage by the applicant to the complainant, but the said rape was committed upon the complainant under threat to commit her murder. Therefore, it is submitted that the afore said Rulings will not be applicable in the instant case. Learned A.P.P. also canvassed that the statements of labourers were recorded during the course of 5 investigation, which support the prosecution case. Moreover, learned A.P.P. also pointed out that the supplementary statement of the complainant was recorded on 17.3.2010, which discloses that her pregnancy was terminated without her consent by the applicant herein in the hospital of Dr. Sandip Shinde. Accordingly, learned A.P.P. urged that there is no false implication of the applicant in the afore said offence and custodial interrogation of the applicant is necessary for further investigation, and therefore, submitted that the present application deserves to be rejected. 8 After considering the rival submissions advanced by the learned counsel for the parties, at the out set, on perusal of the contents of the first information report, apparently it reveals that when the first act of alleged rape was committed by the applicant upon the complainant, there was no assurance/promise of marriage by the applicant to the complainant, but apparently the said act of rape was committed upon the complainant under the threat of committing her murder. Moreover, it also reveals from the first information report that mother of the applicant was elected as Member of Municipal Council, Majalgaon during the relevant period; whereas mother of complainant herein was serving as Sweeper at Municipal Council, Majalgaon, and therefore, apparently it is not digestible that the complainant was consenting party and was under 6 assurance of marriage when the applicant committed alleged rape upon the complainant for the first time. Moreover, it also can be gathered from the contents of the first information report that the alleged false assurance of marriage and also the alleged false assurance of construction of house for the complainant was, apparently the reason for delay in lodging the first information report. 9 Moreover, learned counsel for the applicant also canvassed that even after the first act of alleged rape by the applicant upon the complainant, she did not lodge any complaint and the said conduct of the complainant speaks for itself. It is also submitted that in the natural course of events, had the applicant committed rape upon the complainant, as alleged, the complainant would have immediately lodged the complaint or raised voice against the applicant, but so did not happen, and the conduct of the complainant itself is self-explicit. However, in the said context, the learned A.P.P. pointed out that the contents of the first information report itself disclose that after the first act of alleged rape by the applicant upon the complainant, and while leaving the house of the complainant, the applicant gave threat to the complainant that he would kill her if she disclosed the said act of rape to anybody else, and thereafter he left her house. Hence, when the such threat was given to the complainant by the applicant, as disclosed in the first 7 information report, it cannot be expected from the complainant that she would lodge the complaint against the applicant immediately or raise voice against the applicant after the first act of alleged rape upon her, and accordingly, there is no substance in the argument canvassed by the learned counsel for the applicant in that respect. 10 As regards the judicial pronouncements cited by the learned counsel for the applicant, after careful consideration, it is apparent that the said judgments have been delivered in the appeals, which were before the respective learned Judges, but in the instant case, the investigation is still in progress. Moreover, considering the very fact, in the instant case, as revealed in the first information report, that the first act of committing alleged rape upon the complainant by the applicant was under the threat to commit her murder, and there was no promise of marriage by the applicant to the complainant at that juncture, and therefore, apparently the facts and circumstances in the present case and the facts and circumstances in the cases cited by the learned counsel for the applicant differ from each other. 11 Besides that, the supplementary statement of the complainant recorded on 17.3.2010 during the course of investigation, wherein she stated that her pregnancy was terminated 8 by the applicant in the hospital of Dr. Sandip Shinde without her consent, cannot be ignored. 12 Having comprehensive view of the matter, it appears that there is no possibility of false implication of the applicant in the alleged crime and also considering the nature, gravity and seriousness of the offence, it appears that the custodial interrogation of the applicant is necessary for further progress in the investigation in proper perspective. Hence, present application bears no substance and same is devoid of any merits, and therefore, same deserves to be dismissed. 13 In the result, Criminal Application No. 3764 of 2010, which is sans merits, stands dismissed. 14 However, it is made clear that the observations made in this order are prima facie observations and those shall not be used in any other case while deciding the same on merits. (SHRIHARI P. DAVARE, J.) dbm/crap3764.10 9