13. cr appa 974-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 974 OF 2010 IN CRIMINAL APEAL NO. 565 OF 2010 Gulabchand Lalman Yadav .. Applicant Vs The State of Maharashtra .. Respondent Ms. Anjali Patil for the Applicant Mrs. M.M. Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 26th AUGUST, 2010. P.C.: 1. Heard learned counsel for the applicant and learned APP for the State. 2. The applicant original accused has been convicted under Section 376(2)(f) of IPC and sentenced to suffer RI for 5 years and to pay fine of Rs. 3000/- in default to suffer SI for one month. The appeal is pending before the Court for hearing. The applicant is seeking bail through this application. 3. Learned advocate for the applicant submitted that no case is made out under Section 376(2)(f) of IPC. She 1 13. cr appa 974-10.doc submitted that the evidence does not show that rape was committed by the applicant on the prosecutrix. In order to support her contention, she has drawn my attention to the evidence of the prosecutrix. On going through the evidence of the prosecutrix, it does appear that the offence of rape cannot be made out. Learned APP on the other hand, has drawn my attention to the evidence of PW 4 Dr. Shaikh. In his evidence, Dr. Shaikh has stated that the injuries noted by her are possible by pressing of the penis at the place of injury. 4. I have perused the evidence of PW 4 Dr. Shaikh. The evidence of doctor shows that history given to her was that the accused pressed his genital on the prosecutrix. Thus, considering the evidence of the doctor and the prosecutrix together, prima facie it appears that there was no penetration and hence, offence of rape is not made out but. At the most, it can be said that it was an offence of attempting to commit rape. 5. It is an admitted fact that the applicant has been in a custody for about 20 months. In view of the above facts, I am inclined to grant bail. Hence, the following order : O R D E R 1. The Applicant Gulabchand Lalman Yadav be released on bail in the sum of Rs. 25,000/- [Rs. Twenty Five Thousand Only] 2 13. cr appa 974-10.doc with one or two sureties to make up the said amount. The Applicant shall report to concerned Police Station once in a week till disposal of the appeal. 2. Application is disposed of. [SMT. V.K. TAHILRAMANI, J.] 3