1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2171 OF 2010 Bharat Ghansham Bhosale and anr. ...Applicants VERSUS The State of Maharashtra ...Respondent ..... Smt. S.G.Chincholkar, advocate for applicant Shri S.D.Kaldate, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 28 th July, 2010 PER COURT : 1 Heard Smt. S.G.Chincholkar, advocate for applicant and Shri S.D.Kaldate, A.P.P. for respondent. 2 This is an application preferred by the learned counsel for applicant nos. 1 and 2 requesting to enlarge them on bail suspending the execution and operation of the judgment and order, rendered by learned Additional Sessions Judge, Majalgaon, in Sessions Case No. 2 1 of 1010 on 6.5.2010, pending hearing and final disposal of said Criminal Appeal No. 214 of 2010, since the applicants have questioned the legality and correctness of the conviction and sentence inflicted upon them therein. 3 Briefly stated, the prosecution case is that the prosecutrix Mahananda has lodged an oral report on 26.6.2006 at police station, Dindrud, contending that she was driven with the children by her husband out of the house, and accordingly, she was residing with her mother, namely Sitabai. It is the contention of the prosecutrix that on 25.6.2006, after taking the dinner, she had been out side of her house for passing urine. At this juncture, suddenly flash of battery came on her face and four persons came near her and gave her a blow of stick on her head and entered into her house, since she had rushed into her house. They assaulted her, as well as assaulted to her mother PW4 Sitabai. Thereafter they dragged her and took her to open place in the field and gave stick blow on her hand and back. Some persons out of the said assailants were armed with knives. They threatened her and asked her to keep quiet. She requested them to take her ornaments and leave her. However, they assaulted her and made her lie on the ground. Thereafter they removed her sari and out of the said assailants, two persons pressed her legs and twisted the legs and thereafter one by one three persons, out of 3 those four persons, committed rape on her. Thereafter she went towards Sawant Vasti and narrated the incident to Bappa and others. They gave sari and blouse to her. Thereafter police personnel came there and police patil informed the incident to police. PW4 Sitabai mother of victim also came there and the prosecutrix narrated afore said incident to them. 4 Learned counsel for the applicants canvassed that it is stated by the prosecutrix in the first information report that there was darkness, and therefore, in fact she was unable to identify the accused persons. It is also canvassed that although the alleged incident occurred on 25.6.2006, accused came to be arrested three days thereafter i.e. on 28.6.2006, and their test identification parade was conducted after three months i.e. on 27.9.2006, and hence, it is submitted that the said test identification parade comes under the cloud of suspicion. It is pointed out that mean while nine persons were arrested on 26.6.2006 and they were shown to the prosecutrix in the hospital prior to conducting test identification parade, which apparently vitiates the test identification parade. It is further canvassed that PW8 Ganpat, Tahsildar conducted the test identification parade, but he has not mentioned C.R. Number in the test identification parade immediately. Learned counsel for the applicants also submitted that there is reference of four 4 persons/culprits in the first information report; whereas PW4 Sitabai referred to three culprits in her deposition. Moreover, it is also submitted that PW5 and PW6 panch witnesses have turned hostile, and therefore, the said evidence is not of any aid and assistance to the prosecution. Accordingly, learned counsel for the applicants urged that there infirmities, deformities and anomalies in the prosecution case. Besides that, it is submitted by learned counsel for the applicants that the applicants were on bail during the pendency of trial, and therefore, urged that they be enlarged on bail during the pendency of appeal also. 4 Learned Additional Public Prosecutor Shri S.D.Kaldate opposed the present application vehemently and submitted that to support the charges levelled against the applicants, the prosecution has examined in as much as ten witnesses and after scrutinizing and appreciating the evidence on record, the learned trial Judge has rightly convicted and sentenced the applicants, and the reasoning adopted therefor cannot be faulted with, and therefore, the applicants are not entitled to be enlarged on bail during the pendency of appeal. Accordingly, learned Additional Public Prosecutor supported the judgment and order of conviction and sentence of the trial court. 5 Learned Additional Public Prosecutor also submitted that 5 the learned trial Judge has believed the discovery of Jodwe, one pair of Kudke from the heap of stones at the instance of applicant no.2, which was done under the panchanama under Section 27 of the Evidence Act. It is also canvassed by learned Additional Public Prosecutor that there was sufficient light at the time of occurrence of the incident and the learned trial Judge has held to that effect and made observations in that respect in para no.42 of the judgment, and therefore, there is no substance in the arguments canvassed by the learned counsel for the applicants that there was darkness and the prosecutrix could not identify the culprits. 6 It is further pointed out that the Chemical Analyser's report Exh.47 discloses that there were washed blood stains on the petticoat of the prosecutrix and the discharged card discloses that there was head injury and history of alleged rape. Accordingly, learned Additional Public Prosecutor submitted that there is cogent and incriminating evidence against the applicants, and therefore, urged that present application for bail be rejected. 7 I have perused the impugned judgment and order dated 6.5.2010 convicting and sentencing the applicants, as well as perused the record and proceedings with the assistance of the learned counsel for the applicants and the learned Additional Public 6 Prosecutor and heard the submissions advanced by the learned counsel for the applicants and the learned Additional Public Prosecutor anxiously and considering the ocular and medical evidence as well as the evidence of chemical analysis report on record, I am of the view that apparently there is prima facie case against the applicants and this is not a fit case to enlarge the applicants on bail during the pendency of the appeal. Moreover, there are two eye witnesses I.e. PW1 Mahananda complainant herself and PW2 Sitabai the mother of complainant to the occurrence of the incident, and their testimonies cannot be brushed aside lightly, which apparently connect the applicants with the alleged crime. 8 In the circumstances, the present application bears no substance and same is devoid of any merits, and therefore, same stands dismissed. R. and Ps. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap2171.10