1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1662/2011 IN CRIMINAL APPEAL NO.193/2011 Vilas s/o Sahebrao Gilbile. Applicant V E R S U S The State of Maharashtra Respondent Shri S.J.Salunke with S.A.Wakure Advocate/s for applicant. Shri B.V.Wagh, APP for the respondent – state. CORAM : SHRIHARI P. DAVARE, J. DATE : 8 th JUNE, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant/original accused, seeking bail pending hearing and final disposal of Criminal Appeal No.193/2011 suspending the substantive sentence inflicted upon him by learned Additional Sessions Judge, Osmanabad by judgment and order dated 30.03.2011 in S.C.No.47/2010, convicting him for the offence punishable under section 376 of Indian Penal 2 Code and sentencing him to suffer R.I. for seven years and to pay fine of Rs.7,000/- with default condition of non payment of fine to suffer further R.I. for one year and also convicting him for the offence punishable under section 323 of Indian Penal Code and sentencing him to pay fine of Rs.500/-, in default to suffer S.I. for one month. 3. The applicant has already questioned the aforesaid conviction and sentence by filing criminal appeal No.193/2011 and same has been admitted by me by passing order therein separately on 19.4.2011. 4. The allegations against the applicant are that on 10.2.2010 at about 5.30 p.m when prosecutrix namely Ujwala was watering the crops, the applicant who is her cousin father-in-law came near her and asked where ‘there was Gulbhendicha Hurda’ and thereupon she answered him to find it in the crop of jwar. Accordingly, applicant went to crop of Jawar to find out. However, in short time, he gave call to the victim saying that no Gulbhendicha Hurda was seen and asked her to show it by coming 3 there. Thereupon victim went to jawar crop for showing him Hurda and while she was finding it out, suddenly accused pulled veil of her sari, while she was attempting to release her veil, the accused gave her kick and fell her down in the crop of jwar. Prosecutrix Ujwala sensed ill-intention of the applicant and she warned him that she would inform about the said incident to his brother Balasaheb, who is Sarpanch. Thereupon, applicant pressed her mouth with his right hand and gave pressure of his wrist which was plastered on her chest. Then with his right hand, he moved her sari and petty coat upwards. By that time applicant also removed his white trouser and underwear and placed his private part on the private part of the complainant and started giving jerks and committed forcible intercourse for about 15-20 minutes. At the same moment, she gave kick on the hand of the accused which was plastered and went running towards another field. Thereupon she shut down the electric motor and under shock she went to Dr. Jamkavale at Bhoom and informed doctor that there was headache and pressure on her chest. Out of fear and shame, she did not narrate anything to him 4 and returned back to her house at Shekapur. Thereafter she narrated the incident to her father-in-law who took her to her mothers house at Mandegaon and thereafter was taken to Jagdale Mama Hospital at Barshi for medical treatment. 5. Thereafter offence was registered against the applicant under CR No.15/2010 at Paranda Police station. After investigation charge sheet came to be filed against the applicant and applicant faced trial for the offences punishable under section 376,323 of Indian Penal Code in SC 47/2010 and was convicted and sentenced as aforesaid. Being aggrieved and dissatisfied by the said judgment and order of conviction, applicant preferred criminal appeal NO. 193/2011 which has been admitted and same is pending. Accordingly the applicant has preferred present application for bail in the said appeal. 6. On the face of the aforesaid background learned counsel for the applicant submitted that the applicant was on bail during the pendency of trial and he did not misuse said liberty granted to him. Moreover, it is also canvassed by learned counsel 5 for applicant that, applicant has undergone in all nine months sentence, including pre-trial custody as well as custody after conviction. Learned counsel for applicant further canvassed that admittedly one hand i.e left hand of the applicant was plastered and therefore, it was not possible for the applicant to catch hold Prosecutrix Ujwala and to remove her clothes as well as remove own clothes and to commit act of rape upon the prosecutrix with the help of only other hand. According to learned counsel for applicant, it is curious to note that prosecutrix neither shouted nor raised any alarm for the help there for, although it was time of about 4.00 to 5.oo p.m of the day and although there were persons available in the adjacent fields. It is further submitted by learned counsel for applicant that case papers Exh.57 does not disclose any bodily injury sustained by the prosecutrix. In the said context, learned counsel for the applicant invited my attention to deposition of PW 8 Dr. Sanjay Deshmukh who stated that in the case there is rape by force, there is possibility of bodily injuries on the person of victim however, it is submitted that there were no bodily injuries on 6 the person of the prosecutrix and hence it is submitted that theory advanced by the prosecution in respect of alleged rape upon the prosecutrix appears to be improbable. 7. Learned counsel for the applicant further submitted that, seven years sentence has been inflicted upon the applicant for the offence punishable under section 376 of Indian Penal Code and said substantive sentence is short term sentence and placed reliance on the case of Kirankumar v/s State of M.P. reported at 2001 AIR SCW 5130. It is further submitted that there is no likelihood that appeal filed by the applicant challenging the conviction and sentence would be taken up for final hearing in near future. Hence, learned counsel for the applicant urged that applicant be released on bail pending hearing and final disposal of the said appeal suspending the substantive sentences inflicted upon him. 8. Learned APP countered the said arguments and opposed present application vehemently and submitted that applicant has committed heinous crime and learned trial court has scrutinized and assessed evidence in proper perspective and 7 convicted and sentenced the appellant rightly and the applicant is not entitled to be enlarged on bail during the pendency of the appeal filed by him. Learned APP submitted that prosecution has examined as many as 9 witnesses to substantiate the charges levelled against the applicant and evidence of PW 1 prosecutrix Ujwala Gilbile, PW 2 Haridas Gilbile father in law and evidence of PW 8 Dr. Sanjay Deshmukh as well as CA report Exh.48 and Exh.49 connect the applicant with the crime. It is also canvassed by learned APP that according to CA report Exh.49 the blood group of the applicant is ‘A’ and petty coat of the prosecutrix also bore semen stains of blood group ‘A’ which apparently connects the applicant with the crime. 9. Moreover, learned APP submitted that the prosecutrix and applicant reside in same village, and hence, apprehension is posed that if the applicant is enlarged on bail, there is every possibility that applicant would threaten and/or influence upon the prosecutrix, and hence, urged that the present application be rejected. 8 10. I have perused impugned judgment and order dated 30.3.2011 as well as perused record and proceedings with the assistance of learned counsel for the parties, and at the outset, it appears from the testimony of PW 1 prosecutrix Ujwala that she has narrated occurrence of incident vividly and PW 8 Dr. Deshmukh stated that when the prosecutrix came to hospital on 11.2.2010, she was under depression and rowdy condition. Moreover, CA report Exh.49 discloses that blood group of the applicant is ‘A’ as well as CA report Exh.48 reflects that, the petty coat of the prosecutrix which was seized at Exh.’A’ detected human semen of blood group ‘A’ and since blood group of the applicant is ‘A’, it apparently amounts to incriminating evidence against the applicant. 11. Moreover, apprehension posed by the learned APP that if the applicant is enlarged on bail, prosecutrix may be threatened, can not be ignored. 12. Hence, considering the occular evidence, documentary evidence and medical evidence and having comprehensive view of the matter I am of the opinion that 9 apparently there is primafacie case against the applicant and, therefore, this is not a fit case to enlarge the applicant on bail during the pendency of the appeal and, therefore, I am not inclined to allow present application and hence same deserves to be rejected. 13. In the result, present application stands dismissed. Record and proceeding be sent back to concerned court. ( SHRIHARI P. DAVARE ) JUDGE aaa/1662.11 ....