..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1655 OF 2008 Chandrakant Nilkanth Dandekar and Anr. ..Applicants. Versus Versus Versus The State of Maharashtra ...Respondent. .... Mr.Shirish Gupte, Sr.Counsel a/w. Mr.Sayaji D. Nangre & Ranjit Pawar, Advs. for Applicants. Mr.Sadanand R. Mane, Adv. for orig.complainant. Ms.P.P.Shinde, APP, for State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 7th July, 2008. DATED : 7th July, 2008. DATED : 7th July, 2008. P.C.: 1. Heard the learned Counsel for the applicants-orig.accused Nos.1 & 2 and the learned APP for the State. 2. The applicants are seeking anticipatory bail in C.R.No.I-64 of 2008 of Palghar Police Station. The said case is mainly under Section 376 of IPC. 3. The case of the prosecutrix is that due to poor financial condition, she was residing with ..(2).. her aunt i.e. applicant No.2 for education purposes at Palghar. The native place of the prosecutrix is Solapur. Applicant No.1 used to come to the house of applicant no.2 and they were closely acquainted with one another. Prior to 4.11.2007 the applicant no.1 had started making sexual advances to the prosecutrix and also kept obscene books under her pillow. The prosecutrix complained about this to applicant no.2 who was her aunt. However, applicant no.2 ignored the said facts and in turn she told the prosecutrix to act as per the wishes of applicant no.1 as he is a affluent person. On 4.11.2007 applicant no.1 committed rape on the prosecutrix. Thereafter, applicant no.2 used to restrain prosecutrix from making phones to her mother. Infact the prosecutrix was not even allowed to go out of the house. On 19.3.2008 the mother of the prosecutrix came to Palghar for the first time, at that time the prosecutrix informed the said incident to her mother. The prosecutrix and her mother left Palghar on 20.4.2008 in order to go to Solapur. While they were proceeding by ST bus to Solapur, applicant no.2 got into the bus at Manor and forcibly made them to get down from the said ST ..(3).. bus. Thereafter she called applicant no.1 and both of them threatened the prosecutrix that if she leaves for Solapur she will have to face dire consequences. On the prosecutrix reaching Solapur, she lodged a complaint which was registered as C.R. No.00 of 2008 at Solapur police station. Thereafter the said complaint was transferred to Palghar police station. 4. The learned Counsel for the applicants has submitted that the incident has taken place on 4.11.2007, however, the complaint came to be filed only on 6.5.2008. He submitted that this inordinate delay in lodging the FIR, shows that the prosecutrix has falsely implicated the applicants. 5. As far as the delay is concerned, it is seen that in cases of rape invariably there is delay. In the present case, it is seen that applicant no.2 who is the aunt of the prosecutrix, did not allow the prosecutrix to speak to her mother and she was insisting that the prosecutrix does what applicant no.1 says. The parents of the prosecutrix were residing at Solapur and the ..(4).. prosecutrix was at Palghar. As soon as the prosecutrix met her mother for the first time after the incident, she disclosed to her mother whereupon both of them left Palghar and they were proceeding to Solapur. While they were proceeding to Solapur by ST bus, applicant no.2 forcibly made them get-down from the ST bus. Thereafter both the applicants threatened the prosecutrix and her mother of dire consequences if they went to Solapur or lodged a complaint. It is on account of these facts that there is delay in lodging the FIR. Prima facie, the delay has been satisfactorily explained. 6. Thereafter the learned Counsel for the applicants submitted that the elder sister of the prosecutrix as well as the grandmother of the prosecutrix have filed affidavits stating that applicant no.1 has an exemplary character and he could not have committed rape on the prosecutrix. These affidavits are dated 9th May, 2008. It is pertinent to note that the prosecution agency is unable to trace the sister of the prosecutrix. It may be stated that these affidavits are filed on 9.5.2008, after the complaint came to be lodged. ..(5).. In my view, these affidavits prima facie show that the applicants are trying to tamper with the prosecution witnesses. 7. The prosecutrix has stated that when she and her mother were proceeding by ST bus to Solapur at that time applicant no.2 got into the bus and forced them to got down from the bus. The statements of the ST bus conductor and driver of the said ST bus have been recorded. They have stated that one lady and one young girl were travelling in their bus at that time one other lady got into the bus and entered into lengthy arguments with the young girl and the other lady. On account of this the young girl and the lady got down from the bus. The investigating agency wants the custody of the applicants in order to conduct TIP and in order to conduct medical examination of the applicant. The learned Counsel for the applicants stated that the custody of the applicants would not be necessary in order to conduct TIP and medical examination. However in my view, the material collected by the prosecution is such as to point out an accusing finger towards both the applicants. ..(6).. 8. The Apex Court has observed in the decision of Directorate of Enforcement Vs. P.V.Prabhakar Directorate of Enforcement Vs. P.V.Prabhakar Directorate of Enforcement Vs. P.V.Prabhakar Rao, Rao, Rao, reported in 1997 SCC (Cri.) 978 1997 SCC (Cri.) 978 1997 SCC (Cri.) 978 that when the material gathered by the prosecution is such as to point out an accusing finger towards the accused, it is not a fit case to grant anticipatory bail. 9. Moreover at this stage, I may also refer to the conduct of the applicants. The applicants had earlier preferred an application for anticipatory bail before the Sessions Court at Palghar. On 9.5.2008 the learned Judge was pleased to grant interim protection to the applicants and directed them to remain present on 12.5.2008. However, on the said date, the applicants did not remain present before the Court. 10. The offence is serious in nature. The prosecutrix is a young girl of about seventeen years. She hails from a poor financial background. On the other hand the applicant No.1 is an influential person. 11. Looking to all the above facts, application ..(7).. for anticipatory bail is rejected. 12. The lower Court shall not be influenced by any of the observations made in this order while deciding the application for regular bail or while deciding the trial. 13. On request of learned Counsel for the applicants, the applicants are granted one weeks time to surrender. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)