1 CriApln4560/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4560 OF 2011 Dattatraya s/o Dhondiram Pomnar Applicant V E R S U S The State of Maharashtra Respondent Shri R.S. Deshmukh, Advocate for the applicant Shri D.R. Korde, APP for the respondent / State CORAM : R.Y. GANOO, J. DATED : 8th November, 2011 PER COURT : 1. The applicant is arrested in connection with Crime No. I – 129 of 2011, under Sections 376, 363 of the Indian Penal Code. According to the prosecution, the applicant is alleged to have raped a minor girl by name Jyoti on or about 26th June, 2011. If one considers the prosecution story, it is seen that one person by name Prem Giri Maharaj in the company of Mr. Bharat were proceeding on motorcycle nearabout the Ashram at Kolhewadi and they found the applicant and said Jyoti in a compromising situation and that both of them were found in necked. The applicant was taken to the concerned police station and FIR came to be lodged. Said Jyoti was examined by the concerned Medical Officer on 27th June, 2011 and the said medical officer gave a report which is at page Nos. 50 and 51 of the compilation. Same is the case with the medical examination of the applicant, which is at page Nos. 54 and 55. The investigating agency 2 CriApln4560/11 recorded the statements of various other persons, such as Latabai etc, however, they cannot be termed as eye witnesses. The only two persons whose statements would be relevant they are Prem Giri Maharaj and Bharat. 2. It was sought to be argued on behalf the applicant that perusal of the medical examination reports submitted in respect of said Jyoti as well as the applicant clearly suggest that the stand of the prosecution that the applicant has raped said Jyoti cannot be sustained. According to him, as now the investigation is over, the applicant can be released on bail on putting terms. It is also sought to be suggested that he has been falsely implicated in the present case as the place of occurrence is in village Saikhidi, Taluka Sangamner, District Ahmednagar, whereas the applicant hails from a small village Hiwargaon, Taluka Sinner, District Nashik, which is a miles away from Saikhidi. According to the learned counsel for the applicant, all these facts, therefore, go to show that the commission of offence is improbable and the applicant is required to be released on bail. 3. Having gone through the record, one thing is abundently clear that Prem Giri Maharaj and Bharat have directly seen the incident and their statements would show that Jyoti and the applicant were found in necked condition. The statement of Jyoti is also recorded. Jyoti is said to be a person with less intelligent quotient and her statement was recorded in a question and answer format. If one reads the said statement, it would go to show that she supports the case of the prosecution that she was taken away from her normal place of residence namely Kolhewadi to the scene of offence, which is definitely away and that she was subjected to intercourse against her wishes. The stand of the present applicant that the medical 3 CriApln4560/11 evidence if perused, would show that the medical evidence has nullified the oral statement of the witnesses, cannot be accepted. 4. In my view, the Court will give the proper weightage to the oral testimony of witnesses i.e. Prem Giri Maharaj, Bharat and said Jyoti. It is to be noted that the present applicant hails from a place in district Nasik and in the normal course he has no reason to go in the small village situated in Ahmednagar district. No explanation is given as to why the applicant came at that place. The statement of Prem Giri Maharaj and Bharat do support that the applicant was found in a necked condition along with Jyoti. All these things clearly go to show that the prosecution has been able to make out a prima facie case as regards the allegations set out in the charge-sheet. In my view, looking to the evidence which has come on record, it would not be proper to release the applicant on bail. It is likely that Jyoti who is witness of tender age may be tampered by the present applicant particularly when she does not have adequate intelligent quotient. 5. For the reasons aforementioned, the application is rejected. It is clarified that the learned trial Judge shall not read this order while deciding the matter on merit. The applicant is free to make an application to the learned Sessions Judge of the trial Court for early hearing. If such an application is filed, it would be decided on merit. ( R.Y. GANOO, J. ) SRM/criapln/4560/11/8/11/11