1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.1254 OF 2010 Santosh s/o Nandu Khune ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Shri S.J. Salunke, Advocate holding for Shri S.K. Naikwade, Advocate for the applicant Mrs. Vaishali More, A.P.P. for the respondent ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 21st April, 2010 PER COURT: 1. Heard Mr. S.J. Salunke, learned counsel for the applicant as well as heard Mrs. Vaishali More, learned A.P.P. for the respondent. 2. This is an application preferred by the applicant, seeking bail in connection with C.R. No.5/2010, registered at Bhoom Police Station, District Osmanabad for the offences punishable under Sections 376 and 506 of the Indian Penal Code, since the applicant was arrested thereunder on 24.1.2010 and is in judicial custody presently. 2 3. It appears that, the offence has been registered on the complaint lodged by complainant victim namely Sindhu Navnath Gore on 22.1.2010 in respect of the occurrence of the alleged incident of rape upon her on the same day at about 17.15 Hrs. by the applicant herein. It is alleged by the complainant that she has been residing along with her husband, mother-in-law, brother-in-law and children in a rented house which is owned by the applicant herein and her husband carries on the business of sale of Pedha. The said complaint also recites that on 22.1.2010 her husband had gone to mess for job and children had gone to her mother-in-law after coming from the school and she also had returned from field after work and at about 5.00 p.m. she had gone to fill up the water from the public tap and had brought one container of water and was proceedings towards bringing another container of water and at that time at about 17.15 Hrs. the applicant herein arrived near the room of animals at Vasant Mala and stated the complainant that he has got some work with her and called her and further caught-hold of her right hand and threatened her not to shout and dragged her towards a tin room at Vasant Mala, and although there was resistance, the applicant herein made the complainant lie on the flooring and pressed her breast and committed rape upon her and further threatened her not to shout, otherwise he would kill her husband. It is alleged that, at this juncture the complainant’s husband arrived there on the said spot and thereupon the applicant herein fled away. 3 4. On the aforesaid background, the learned counsel for the applicant submitted that, although allegedly there was resistance on the part of the complainant at the time of commission of the aforesaid act of rape, the medical certificate discloses that there are no signs of struggle and, therefore, it is submitted that suspicion is created in respect of the charges levelled against the applicant herein. It is also urged by the learned counsel for the applicant that although the complainant is illiterate lady, it is curious to note that she has filed a written complaint bearing her thumb impression thereon and, therefore, it is submitted that, possibility of writing the said complaint by somebody else for the complainant herein cannot be ruled out. It is also urged by the learned counsel for the applicant that the applicant is in custody since last more than three months and investigation has been completed and charge sheet has been filed and, therefore, there is no propriety in keeping the applicant in custody further more. It is further submitted by learned counsel for the applicant that, to meet the alleged apprehension of influencing upon the complainant, the applicant shall stay away from the village/ Taluka where the complainant resides, if released on bail. 5. The learned A.P.P. countered the aforesaid arguments and opposed the present application vehemently and submitted 4 that the offence allegedly committed by the applicant herein is serious and anti-social offence. It is further submitted by learned A.P.P. that there is every apprehension that if the applicant is enlarged on bail, he may influence upon the witnesses, more particularly the complainant herein and would tamper with the evidence and, therefore, submitted that, present application deserves to be rejected. Learned A.P.P. also pointed out that the vaginal swab of the complainant has been taken and it is sent to the Chemical Analyser and report thereof is still awaited. Accordingly, the learned A.P.P. submitted that present application bears no substance and same be rejected. 6. On perusal of the investigation papers and after considering the rival submissions advanced by both the learned respective counsel for the parties, at the outset, there cannot be any dispute that the alleged offence is serious and anti-social. Moreover, the medical certificate dated 22.1.2010 in respect of examination of the victim Sindhu Gore discloses that stains were present on her undergarments and vaginal swab of the said victim was taken and same has been sent to the Chemical Anslyser for analysis purpose, but the same report of the C.A. is still awaited. 7. As regards the arguments advanced by learned counsel for the applicant that although there was struggle between the 5 applicant and victim, the medical certificate discloses that there are no signs of struggle, the contents of complaint discloses that there was resistance on the part of the complainant (Zombazombi) which cannot be construed as struggle apparently and, therefore, although the medical certificate discloses that there are no signs of struggle, the said aspect would not go in favour of the applicant herein. 8. In the circumstances, apparently, it appears that, there is prima facie case against the applicant herein and applicant has failed to make out a case for grant of bail and, therefore, present application deserves to be rejected. 9. In the result, present application being sans merits, stands dismissed. Liberty granted to the applicant to prefer application for bail after receipt of aforesaid C.R. report, if any. 10. Needless to say that the above observations are prima facie in nature and shall not come in way of any Court while deciding the matter on merits. (SHRIHARI P. DAVARE) JUDGE fmp/cri1254.10