- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1391 OF 2008 APPLICATION NO.1391 OF 2008 APPLICATION NO.1391 OF 2008 IN IN IN CRIMINAL CRIMINAL CRIMINAL APPEAL APPEAL APPEAL NO.1284 OF 2008 NO.1284 OF 2008 NO.1284 OF 2008 Sham Vitthal Nimbale ...Applicant vs. The State of Maharashtra and Anr. ...Respondents Mr.DebaJyoti Talekar for the applicant Mr.J.P.Yagnik A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 6,2009 : MARCH 6,2009 : MARCH 6,2009 P.C.: P.C.: P.C.: 1. Heard Advocate for the applicant. The applicant is the 3rd accused who has been convicted for offence under section 376 (2) (g) of the Indian Penal Code. He has been sentenced to suffer R.I. for 10 years and to pay fine of Rs.3,000/-. He has also been convicted for offence under section 506 r/w section 34 of the Indian Penal Code. He has been sentenced to suffer R.I. for 2 years. The applicant is in custody from 25th November 2005. 2. The submission of the Advocate for the applicant is that even going by the version of the prosecution witnesses, there is no material to convict the applicant. He has invited my attention to the cross examination of the prosecutrix made by the Advocate for the applicant. He submitted that apart from the fact that the evidence of the prosecutrix regarding involvement of the applicant is very vague, in response to the - 2 - question recorded in paragraph 43, the answer given by the prosecutrix gives a fatal blow to the prosecution case about involvement of the applicant. He also invited my attention to the evidence of the Resident Nayab Tahsildar who conducted identification parade and in particular what is stated by him in paragraph 8 of his evidence. 3. I have perused the impugned Judgment and notes of evidence. The applicant is not specifically named by the prosecutrix in her evidence. Paragraph 43 of her cross examination made by the Advocate for the applicant reads thus : "43. I had stated to police in my complaint that in all five persons had raped me. I cannot say why it is not specifically mentioned in my complaint. I had stated while giving history to the doctor that I was raped by five persons. Q. Whether accused no.3 Sham Vithal Nimbale present before Court was the person who was brought by Kisan at Doordarshan Kendra. (The ld.advocate for the accused made the accused no.3 to stand and pointed towards him and asked the question) - 3 - Ans: He was not the said person." 4. It is stated that the prosecutrix identified the applicant in test identification parade. P.W.3 Resident Nayab Tahsildar stated in the examination in chief that the prosecutrix identified the applicant by stating that he was sitting on the motor cycle before the second incident of rape. The first incident of rape according to the prosecutirx was near Doordarshan Kendra and the offenders were Sunil and Kisan. According to her the said two accused brought one more friend and all four of them proceeded on a motor cycle towards Tapi Sahakari Patpedhi. In the said premises, the second incident of rape allegedly took place. 5. Considering the aforesaid peculiar nature of evidence adduced as against the applicant and considering the fact that the age of the applicant is 20 years, the case made out by the applicant for grant of bail will have to be considered. 6. Considering the peculiar facts of the case, the applicant deserves to be enlarged on bail subject to stringent conditions : 7. Hence, I pass the following order : i) The applicant shall be enlarged on bail in the sum of - 4 - Rs.15,000/- with one or two local sureties in the like amount. ii) The applicant shall be enlarged on bail subject to condition that he will report to Kothrud Police Station, Pune on every 1st and 3rd Saturday of every calendar month till the disposal of Appeal. JUDGE JUDGE JUDGE