1 Cri. Appln.No.3603/2011 fmp IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3603 OF 2011 IN CRIMINAL APPEAL NO.368 OF 2011 Sampat s/o Vithal Yenare ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Shri R.P. Mote, Advocate for the applicant Shri B.J. Sonawane, A.P.P. for the respondent ..... CORAM : U.D. SALVI, J. DATED : 13th October, 2011. PER COURT : 1. Heard. Perused application and the record. 2. The applicant/ accused has preferred an appeal against the judgment and order passed by the learned Additional Sessions Judge-6, Ahmednagar in Sessions Case No.221/2010, convicting him of the offences punishable under Sections 376, 354, 506 of the Indian Penal Code and consequently sentencing him to suffer R.I. for seven years and to pay fine of Rs.10,000/-, in default 2 Cri. Appln.No.3603/2011 fmp of payment of fine, to suffer R.I. for one more year; and now he is seeking bail in the present appeal. 3. The prosecutrix is daughter-in-law of the appellant/ accused. She was married to Anil, son of the appellant/ accused on 15.5.2010 and after marriage, she started cohabiting at village Astagaon, Taluka Parner, District Ahmednagar. Now it is submitted that, the prosecutrix is staying with her parents at village Wagunde, Taluka Supe, District Ahmednagar, and has obtained permanent alimony in settlement arrived between her husband and herself in Criminal Application No.70/2011 before Judicial Magistrate, First Class, Parner and is awaiting dissolution of the matrimonial bond by mutual consent. 4. According to the prosecutrix, on 3.8.2010, while she was returning home between 2.00 and 3.00 p.m. on a motorcycle with the accused from the hospital of Dr. Pathare, situate at Supa after surgical dressing of her post operative wound, she was raped by the appellant/ accused in a forest along the road and threatened with death by the appellant/ accused if she raised shouts. She further grieved that he kept bundle of Rs.15,000/- notes on her chest while she was being raped and asked her to keep mum. She further complained that as a result of the rape she developed pain 3 Cri. Appln.No.3603/2011 fmp in her abdomen and the appellant/ accused asked her not to worry about it as such things happen, and as a result of the fear of the appellant/ accused, her father-in-law, she did not disclose this fact to her mother-in-law and husband that day. However, she added that she informed her parents about the pain she was getting in the abdomen and her parents thereupon took her to Dr. Pathare and after the medical examination and treatment, she went to stay with her parents at Wagunde. According to the prosecution, she did disclose the fact of rape to her parents, but she was told to keep quiet for the fear of dishonour; and she returned to her matrimonial home on 15.8.2010 in response to the call to come back received by her on 14.8.2010. The prosecution added that, she was left at the matrimonial home along with her grandmother by her father. Around 10.00 p.m., the prosecutrix grieved, that the appellant/ accused approached her while she was sleeping alone and asked her to prepare a sago meal and when she was in a kitchen making preparations therefor, the appellant/ accused outraged her modesty by catching hold of her from behind, whereupon she added, she telephoned her parents on 16.8.2010 and disclosed the incident and returned back to her parents on 16.8.2010 and, thereafter, lodged the complaint around 18.30 Hrs. against the appellant/ accused on 16.8.2010 with Supa Police Station. 4 Cri. Appln.No.3603/2011 fmp 5. The record reveals that, the crime at C.R. No.I-39/2010 under Sections 376, 354, 506 of the Indian Penal Code was registered at Supa Police Station against the appellant/ accused. The prosecutrix showed the place of offence and produced her blouse with broken hooks and her petticoat. According to the prosecution, broken pieces of bangles were recovered from the place of offence shown by the prosecutrix and the prosecutrix was medically examined. Forensic investigation revealed human blood and semen on knicker of the prosecutrix recovered from matrimonial home, washed stains of human blood were also detected in the forensic investigation on the petticoat of the prosecutrix. 6. Learned Advocate for the applicant/ accused submits that, the present case hinges on the sole testimony of the prosecutrix which remains uncorroborated with medical evidence inasmuch as there has been no marks of violence on the person of the prosecutrix. Delay in lodging the complaint, he argued, has further compounded the mystery of rape and it was not unlikely for the prosecutrix to have falsely implicated the applicant/ accused for coercing the appellant/ accused in order to seek his submission to her desire to live separately with her husband following the partition of the ancestral properties held by the appellant/ accused. To 5 Cri. Appln.No.3603/2011 fmp highlight his submission, he pointed out to the written statement (Exhibit 66) tendered by the accused in response to his examination under Section 313 of the Criminal Procedure Code and to the notice dated 7.10.2010 (Exhibit 15), addressed by the husband of the prosecutrix to the appellant/ accused for partition. He further submitted that, considering the facts and circumstances in the present case, there are fair chances of acquittal in the present case and, therefore, the appellant/ accused deserves to be released on bail. 7. Learned A.P.P. submitted that, even a lone testimony of the prosecutrix is sufficient to book the accused in the crime punishable under Section 376 of the Indian Penal Code and there could not have been any reason for the prosecutrix to have deposed against her father-in-law at the risk of her matrimonial relations and personal honour. He, therefore, urged for rejection of the bail application. 8. To substantiate the allegations made against the appellant/ accused, the prosecution examined the prosecutrix, her father Pundlik, Dr. Nita Pathare, panch as to the spot panchanama and seizure panchanama along with the investigating officer in the present case. 6 Cri. Appln.No.3603/2011 fmp 9. The principal witnesses whose testimonies revealed the crux of the matter are the prosecutrix and P.W.5 Dr. Nita Pathare. In her testimony, P.W.2 the prosecutrix deposed that the incident had occurred on 27.7.2010 when she was returning on the motorcycle with the appellant/ accused after dressing at Dr. Pathare’s Hospital at Supa. She deposed that she was taken under the neighbouring tree along the road passing through a dense forest and the appellant/ accused had pulled up her sari and removed knicker and had committed sexual intercourse twice. She deposed about the threats given by him and the cash placed upon her chest by the appellant/ accused for maintaining silence. Pertinently, she deposed that as a result of forceful sexual intercourse, blood started oozing from the surgical wound and there was excessive vaginal discharge coupled with pain in her abdomen. She added in her testimony that, around 6.00 p.m. that day, after she had returned to the matrimonial home, her parents responded to her call and took her to the Dr. Pathare’s hospital at Supe, where she was medically treated and, thereafter, she went to her parent’s home and narrated the events to her mother. According to her version in evidence, her mother had advised her to keep mum for the fear of being defamed in the society. She further deposed that, on 14.8.2010, her husband contacted her on 7 Cri. Appln.No.3603/2011 fmp phone and insisted that she should come back to the matrimonial home at Astagaon, and thereupon her father took her along with her maternal grandmother to matrimonial home and left them there. She further averred that, the appellant/ accused in the night of 15.8.2010, had outraged her modesty in the kitchen by hugging her from back side and pressing her breast in the kitchen when she was preparing a sago meal for him, and again she kept mum due to threats and also did not disclose the facts to her husband as her husband was under the influence of the accused. She further deposed that, she had called her parents around 12.00 noon on 15.8.2010 and narrated the facts to them, whereupon her father and maternal uncle picked her up from the matrimonial home and took her to Supa Police Station where she had lodged complaint (Exhibit 30) against the appellant/ accused. 10. In the examination-in-chief, she pertinently identified blouse (Article 9) as the blouse which was on her person at the time of rape. However, she did not identify the pieces of bangles collected from the spot of the incident. 11. In the cross-examination, the prosecutrix revealed that there had been half dozen bangles in each of her hand and 2-3 bangles therefrom were broken at the time of the incident. She 8 Cri. Appln.No.3603/2011 fmp further deposed that there was injury to her hand when the bangles were broken and she kept on moving her waist to resist the accused while she was being raped. Medical evidence, however, points out that there were no injuries found on the person of the prosecutrix. It is also revealed in her cross-examination that the police had not seized the bangles which were on her person and at the time when she had shown the spot of the incident from which the broken pieces of bangles were seized. She maintained in her cross-examination that, on 27.7.2010 the appellant/ accused had come with her for post surgery dressing to the hospital of Dr. Pathare. According to her version, the catching of the body at the time of the incident had strained post operative injury on her abdomen and loosened bandage thereon. She further deposed that, this injury with bleeding was shown on the very day of the incident to Dr. Pathare and the said injury was again dressed by the doctor. 12. Her cross-examination further reveals that, she had talk during the period between 27.7.2010 and 14.8.2010 with her husband and her husband used to make her phone calls whenever he felt like and there was no fear when she was at her matrimonial home at Wagunde. In these circumstances, it is really surprising as to how she did not disclose the alleged incident to her husband 9 Cri. Appln.No.3603/2011 fmp and consult him about the future course as the act of her father-in- law put at stake her matrimonial happiness. Evidence of P.W.5 Dr. Pathare fails to reveal that on 3.8.2010 the prosecutrix was accompanied by anyone when she had visited her hospital for dressing some time between 10.00 and 11.00 a.m. However, it reveals that, on the same day, the prosecutrix again paid visit to the hospital in the evening along with her mother with a complaint of white discharge and she had prescribed medicines for controlling the discharge of white fluid. In her cross-examination, P.W.5 Dr. Pathare revealed that she had noticed that post operative injury was healed to nearabout 90% and no abrasions were noticed by her on the persons of the prosecutrix. She opined that if a woman lying in supine position and was raped despite resistance put up by her, the probability of the existence of abrasions on the buttock, thigh or ankle of legs remained. She also opined that discharge of white fluid from vagina was not only due to sexual intercourse but could be caused by variety of reasons and some times without any reason by natural occurrence. She added that, she had noticed dry vagina at the time of the medical check up of the prosecutrix. If her testimony is juxta-posed with her evidence, one can reasonably conclude that there are fair chances of the appellant succeeding in the present appeal particularly in view of the fact that there was delay in lodging the complaint and the facts were not disclosed by 10 Cri. Appln.No.3603/2011 fmp the prosecutrix to her husband with whom she was expected to confide in the interest of her matrimonial happiness. However, it is necessary to put the applicant/ accused to certain terms for granting of bail in the present appeal. Hence the order : 13. The applicant/ accused shall be released on P.R. bond of Rs.20,000/- (Rupees twenty thousand) with one or two sureties in the like amount, subject to the following conditions : (i) That he shall keep the police informed about his whereabouts from time to time. (ii) That he shall keep the duly instructed Advocate present before this Court for conducting the appeal. (iii) Fine amount shall be paid and deposited in the trial Court. Criminal Application stands disposed off accordingly. ( U.D. SALVI, J. ) fmp/cri3603.11