(1) CRI.APP. 3684.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3684 OF 2010 Uddhav Vasant Bhabad, Age : 23 years, Occu.: Agri., R/o : Agaskhand, Tq. : Pathardi, District : Ahmednagar .. Applicant VERSUS The State of Maharashtra (Copy served on the Public Prosecutor, High Court Bench at Aurangabad) .. Respondent ... Mr. Joydeep Chatterji, Advocate for the Applicant Mrs. B.R. Khekale, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 4TH OCTOBER, 2010 ORAL ORDER:- 1. This is an Application for bail. 2. The applicant is arrested in connection with crime no. I-276 of 2010 registered at Pathardi Police Station for offences punishable under section 376, 323, r/w. section 109 or 34 of the Indian Penal Code. 3. The prosecutrix is unmarried young girl aged about 18 years. The FIR purports to show that on (2) CRI.APP. 3684.2010 16.7.2010 she had gone to a public well for washing of clothes around 10.00 am. She completed the washing of clothes and was returning home by about 11.00 am. when she was called by co-accused Shobha Jaybhaye. At her call, the prosecutrix went near her house. It is alleged that said Shobha Jaybhaye immediately caught hands of the prosecutrix and pushed her inside her house. Thereafter, Shobha Jaybhaye latched the outer door of the house and sat outside. The applicant was concealing himself inside the house. He pulled her hands and when she tried to raise cry, assaulted her. Thereafter, he made her to fall down on the ground after hugging her. Thereafter she was ravished. It is alleged that the applicant told Shobha Jaybhaye to open the door, saying that his work was done. No sooner she opened the door of the house, he fled away. The prosecutrix returned to her house and narrated the incident to her mother. Subsequently, the FIR was lodged at the Police Station. 4. The learned Advocate for the applicant would submit that the prosecution story is distorted (3) CRI.APP. 3684.2010 version about the incident. He would submit that place of public well is crowded one and ordinarily it was not possible that the prosecutrix would alone go to the house of Shobha Jaybhaye only because she was called. He would further submit that the delay caused in filing of the FIR would speak volumes for itself. According to the learned Advocate for the applicant, the delay occurred due to improvisations made after deliberations with the parents and other relatives of the prosecutrix. He contended that there may be intimacy between the applicant and the prosecutrix but subsequently due to someone's noting the incident of her entering the house of Shobha Jaybhaye in order to get rid of any stigma, false FIR might have been lodged. 5. Perusal of the investigation papers prima facie indicates that the informant (prosecutrix) and her mother were the only persons in the house, whereas, her brother and father had gone to village Yeli in order to meet her sister. The FIR itself shows this fact. The FIR purports to show that after returning of the father and brother, the prosecutrix (4) CRI.APP. 3684.2010 narrated the incident to them and on the same day they went to the Police station at Pathardi for the purpose of lodging the FIR. In other words, between 16th and 19th July, 2010 father and brother of the prosecutrix were out of the village and after their return, the prosecutrix and her relatives decided to lodge the FIR. This conduct of the prosecutrix cannot be prima facie regarded as an act of purposeful fabrication and concoction of the FIR. It is true that the house of Shobha Jaybhaye is nearby the public well. The FIR does not however show that anybody else was present near the public well when the prosecutrix was called by Shobha Jaybhaye near her house. The medical certificates prima facie shows that the prosecutrix had received contiguous injuries which corresponds to her allegation that she was made to fall on the ground. It also appears that the hymen was not intact and there was abrasion injury found on the private part on post forchette. The medical examination also show that the vagina admitted only one finger with difficulty. In other words, there is prima facie evidence to show that the (5) CRI.APP. 3684.2010 prosecutrix was virgin prior to the date of incident and she was forcibly subjected to sexual intercourse as alleged. 6. Needless to say, therefore, when there is a prima facie connecting evidence to show that the applicant with active assistance of said Smt. Shobha Jaybhaye committed the alleged rape and, he is, therefore, is prima facie guilty of serious offence. Hence, the applicant has forfeited his right to remain free. The Application is dismissed. Sd/- [V.R. KINGAONKAR, J.] arp