1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2430/2010 IN CRIMINAL APPEAL NO.229/2010 Arvind s/o Bhagwan Datal, age 21 yrs, Occ. Business, R/o Bokangaon, Tq. & Dist. Latur. Applicant/accused V E R S U S 1. The State of Maharashtra through S.H.O Police Station, Latur (Rural), Latur. 2. Mohini d/o Hanumant Datal, age 14 yrs, r/o Bokangaon, Tq. & District. Latur. (Prosecutrix) R-2 DELETED AS PER ORDER DT.30.6.2010. Respondent. ***** Shri A.B. Kadethankar, Advocate for the applicant/appellant. Mrs. B.R. Khekale, learned APP for the respondent. ***** CORAM : SHRIHARI P. DAVARE, J. DATE : 10TH AUGUST, 2010. PER COURT : 1. Heard learned respective counsel for the parties. 2 2. I have already admitted criminal appeal No.229/2010 by passing separate order therein on 9.8.2010, which has been filed by the applicant/appellant, challenging the conviction and sentence inflicted upon him by way of judgment and order dated 11.6.2010, rendered by Additional Sessions Judge, Latur in Sessions Case No.74/2009, convicting the appellant for the offence punishable under section 376 of Indian Penal Code and sentencing him to suffer R.I. For seven years and to pay fine of Rs.20,000/-, in default to suffer R.I. For one year and also convicting him under section 342 of Indian Penal Code and directing him to suffer R.I. For one year and to pay fine of Rs.500/- , in default to suffer R.I for 15 days and both the said substantive sentences were to run concurrently. 3. This is an application preferred by the applicant/appellant, seeking his enlargement on bail, pending the hearing and final disposal of criminal appeal No.229/2010, suspending the substantive sentences till then. 4. Learned counsel Mr. Kadethankar for the applicant/appellant submitted that applicant herein faced trial in Sessions Case No.74/2009 for the offences punishable under section 376 and 342 of Indian Penal Code. In short, it is alleged by complainant 3 Ranjana that on 3.1.2009, upon her return from field work, her neighbourer Damayanti Shinde informed her that, Damayanti was told by one pushpa i.e. another daughter of the complainant that the prosecutrix namely ‘Mohini’ was ravished by the appellant. It is also alleged that Damayanti asked victim Mohini what had happened, thereupon she allegedly told her that while she (Mohini) had been to purchase eatables at the applicant’s shop at about 5.00 p.m., applicant pulled her inside the shop, closed the shop, laid her down, pressed her mouth and removed her clothes and committed rape upon her. 5. On the aforesaid background, learned counsel for the applicant canvassed that although alleged incident occurred on 3.1.2009, at about 5.00 p.m. First Information Report came to be lodged on the next day i.e. on 4.1.2009 at about 01.15 p.m and prosecution has not given any plausible explanation for the said delay and said delay in lodging First Information Report hampers the case of the prosecution and creates suspicion in respect of the contents thereof. Moreover, it is also canvassed that, although prosecutrix Mohini narrated the alleged incident for first time to her sister Pushpa, said Pushpa has not been examined by the prosecution and no explanation has been given by 4 the prosecution for the said inaction on the part of the prosecution. Learned counsel for applicant also submitted that medical evidence of PW 3 Dr. Aruna Mhaske does not corroborate the version of prosecutrix Mohini and said testimony of Dr. Aruna categorically discloses that there is no evidence of external injury over the body and hymen of the victim was not ruptured as well as no seminal or blood stains were over the genitals. She further stated that bleeding could be due to menstruation. Accordingly, learned counsel for the applicant submitted that said medical evidence, in fact, hampers the case of the prosecution. Learned counsel for the applicant relied upon observations made in the case of Suresh Govinda Nagdeve and another vs. State of Maharashtra reported at 2008 (1) Bom.C.R. (Cri) 847 wherein it is observed that :- “If it was first rape by three persons, injuries had to be there and there could be fresh tear of hymen. accused were also medically examined and there were no corresponding injuries on their private parts. It is correct that FIR was lodged immediately and medical examination taken but in absence of sufficient corroboration by medical evidence and forensic results, it could be highly dangerous to base conviction on evidence of prosecutrix. Case against appellant is not established. Suspicion however strong cannot take plea of proof. There has to be a legal proof, supported 5 by unimpeachable and legally admissible evidence.” 6. Learned counsel for the applicant further invited my attention to the aspect that, alleged incident occurred at about 5.00 p.m. on 3.1.2009, that too in a shop on the road, more particularly in the square but it is curious to note that prosecutrix Mohini did not raise any alarm and although it was a crowded place, nobody came to rescue her and therefore, it is submitted that case of the prosecution in respect of the occurrence of alleged incident is not digestible. 7. According to learned counsel for the applicant, applicant was on bail during the pendency of the trial and he was directed to reside out of the District Latur and he has not misused said liberty. Learned counsel also submitted that, applicant has deposited fine amount in this court. He further submitted that applicant has been awarded short term sentence and appeal has been admitted and it is not likely that it be taken up for hearing in near future and therefore, applicant is entitled for bail during the pendency of appeal. 8. Mrs. Khekale learned APP opposed present application vehemently and submitted that evidence of prosecutrix Mohini -PW 5 is cogent and specific and same has not been impeached in the cross 6 examination. It is submitted by learned APP that victim Mohini categorically involves the applicant in the crime and there is no necessity of any corroboration to the said testimony, since the said testimony stood to the cross examination which also inspires confidence. 9. To substantiate the said proposition, learned APP Mrs Khekale relied upon the observations made in the case of Bharwada Bhoginbhai Hirjibhai v/s State of Gujarat reported at AIR 1983 SUPREME COURT 753 wherein it is observed that :- “Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society.” 10. According to learned APP PW 6 Pradip Patil is independent witness to whom victim Mohini narrated incident immediately after the occurrence thereof and testimony of said witness also involves the applicant categorically in the alleged crime and therefore it is submitted that applicant is not entitled to be enlarged on bail. 7 11. As regards, medical evidence, learned APP submitted that victim Mohini was examined by PW 3 Dr. Aruna Mhaske-Patil at about 04.30 a.m. on 4.1.2010 i.e after lapse of eleven and half hours from the occurrence of the incident and said Doctor stated in her deposition that if there is any injury, it does not last for 10 to 12 hours and therefore, it is submitted that no external injury could be seen by PW 3 Dr. Aruna over the body of the victim and hence it is submitted that there is no substance in the argument canvassed by learned counsel for the applicant, in that respect. 12. Learned APP further pointed out that applicant was directed to reside out of Latur District while granting bail to him during the pendency of trial, which itself indicates that there was possibility of tampering / influencing upon the witnesses and therefore, such condition was imposed upon the applicant/appellant. Accordingly, learned APP supported the impugned judgment and order dated 11.6.2010, convicting the appellant herein and submitted that reasoning adopted by learned judge while convicting the appellant cannot be faulted with. Hence, it is urged that applicant is not entitled to be released on bail, during the pendency of the appeal. 13. I have perused the impugned judgment and order dated 8 11.6.2010 as well as record and proceedings with the assistance of both learned respective counsel for the parties. 14. At the outset, to substantiate the charges levelled against the applicant/appellant, prosecution has examined in as much as eight witnesses i.e. PW 1 Ranjanabai Datal – complainant, PW 2 Prabhakar Datal panch to spot panchnama, PW 3 Dr. Aruna Mhaske Medical Officer who examined the prosecutrix, PW 4 Narsing Datal another panch to spot panchnama, PW 5 Mohini prosecutrix, PW 6 Pradip Patil witness to whom prosecutrix first disclosed the incident, PW 7 Damayanti Shinde and PW 8 Ashok Patil Police Inspector, investigating officer. 15. Considering the testimony of prosecutrix Mohini and deposition of PW 3 Dr. Aruna Mhaske as well as the testimony of independent witness Pradip Patil PW 6, apparently I am of the view that, there is primafacie case against the applicant. In fact, PW 6 Pradip Patil is the first witness, to whom victim Mohini allegedly narrated the incident, for the first time, after its occurrence and said witness is the independent witness, who apparently involves the applicant in the alleged crime. 16. Having comprehensive view of the matter, it appears that, this is not a fit case to enlarge the applicant/appellant on bail during 9 the pendency of the appeal and therefore, present application deserves to be rejected. 17. In the result, present application being sans merit, stands dismissed. However, in the facts and circumstances, hearing of the appeal be expedited and applicant/appellant is permitted to file private paper book. 18. Stand over for four weeks. ( SHRIHARI P. DAVARE ) JUDGE. ..... aaa/2430.10