2010 ALL MR (Cri) 54
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.M. KANADE, J.

Dev Cyrus Colabawala Vs. State Of Maharashtra

Criminal Application No.4548 of 2009

18th November, 2009

Petitioner Counsel: Mr. I. M. MIRAJKAR,Mr. T. M. GOLE , Mr. R. R. KADAM
Respondent Counsel: Mr. Y. M. NAKHWA
Other Counsel: Ms. MANARUKNA ADENWALA

Criminal P.C. (1973), S.436 - Penal Code (1860), S.376 - Bail - Application for - Applicant accused allegedly involved in gang rape - Grave offence - Discrepancies in evidence to be agitated at final hearing of case - Facts and circumstances brought an record sufficiently show that applicant had shared common intention with other accused - That apart, applicant not a permanent resident of place where trial was conducted - Likelihood of applicant absconding - Not a fit case for granting bail.

While considering the question of bail, the Court has to take into consideration gravity of offence, apart from other circumstances such as likelihood of accused absconding or feeling from justice as also allegations which are made against accused. The Court while considering the application for bail, is not supposed to weigh and sift the material which is on record or give findings an merits. However the Court can consider whether there is any prima facie evidence against the accused. [Para 11,13]

Cases Cited:
Vishwanath Vs. State, (2008)5 SCC 354 [Para 7]
Pramod Mahto Vs. State of Bihar, AIR 1989 SC 1475 [Para 7]
Quinn Vs. Leatham, [1900-3] ALL ER Rep. 1 [Para 8]


JUDGMENT

JUDGMENT:- Heard the learned Counsel appearing on behalf of the applicant as also the learned Counsel appearing on behalf of the Complainant and the learned APP appearing on behalf of the State.

2. Applicant has been arrested in connection with the offence punishable under section 376(2)(g) read with section 34 of the Indian Penal Code which is registered by Trombay Police Station vide C.R. No.111/2009 dated 15/04/2009.

3. In the present case, charge-sheet has been filed and the matter is ready for framing of charge. However, since discharge applications have been filed by some other accused, charge has not been framed so far. The matter is already transferred to the Fast Track Court and I have given directions to the Sessions Court to dispose of the case as expeditiously as possible and in any event within a period of six months from today in Criminal Application No.4711 of 2009.

4. Brief facts are that the complainant who is a U.S. citizen had come to India for the purpose of studying in TISS. On 11/04/2009, at about 10.30 P.M., according to the complainant, she had gone to visit her friend viz. Annie Brown in her room in the hostel and she inquired with her about her studies. She was told by her that she was proceeding to Darjeeling early in the morning and that her friends wanted to give her farewell party at a Bar and Restaurant Cafe XO and she invited the complainant to join her. Thereafter, present applicant and other four co-accused met her and they went to the said Cafe. The original accused Nos.1, 2 and 3 were introduced to her in February, 2009. Applicant is accused No.5.

5. It is the case of complainant that she was forced to drink beer by one Hersh, though she had requested him not to force her and after she consumed the said drink, she felt giddy and light-headed. According to the complainant, she wanted to meet her friend at Club Bling at Hotel Leela at Andheri and she was insisting that she should be allowed to go there. However, according to her, she was taken by the accused to the flat of accused No.6 and there accused No.1 - Vinamra, accused No.2 - Jaskaran & accused No. 3 - Hersh came to the bed-room where she was sitting on mattress and molested her and, therefore, she wanted to leave the place. However, when she tried to get up, she lost her consciousness and fell down. In the morning when she got up, she noticed that her pants and underpants were removed upto her ankles and she felt pain in her private parts. Thereafter, two accused took her in rickshaw and gave her contraceptive pills from Chemist Shop and dropped her near her hostel. She, thereafter, informed this incident to Shruti Chakrawarti. Thereafter, her statement was recorded by Police on 15/04/2009. The applicant and other accused were arrested. Application for bail filed by the applicant was rejected by the Sessions Court.

6. Counsel for the applicant invited my attention to the FIR, Medical Report and her statement which was given to Dr. Meenal Sarmalkar. He submitted that in the first statement which was made to the Doctor, she had stated that three persons were involved in the said incident. He then submitted that at no point of time the applicant had entered the bed-room where the accused Nos.1 to 3 had molested her and where the said incident alleged to have taken place. He then submitted that, however, in the supplementary statement her version was changed and the complainant has mentioned six persons including the present applicant. He submitted that the accused No.6 - Kundan was released on bail by this Court by order dated 18th September, 2009 in Criminal Application No.3584 of 2009. He invited my attention to the said order and submitted that the applicant was entitled to be released on bail on the ground of parity. Secondly, he submitted that the Medical Certificate clearly indicated that there were no injuries on the private parts of the complainant and that she did not remember anything. He has invited my attention to the column regarding details of penetration wherein the complainant had stated that she did not know most of the particulars which were mentioned in the said column. He submitted that even in the said certificate, number of assailants were mentioned as three. He then invited my attention to the examination reports of Chemical Analysis. He submitted that none of these reports indicated that the applicant was subjected to rape as alleged by her. He then invited my attention to the FIR and submitted that the complainant merely had suspicion that she might have been raped since she became unconscious and, thereafter, got up in the morning at 10 A.M. He submitted that in her initial statement which she had given to Dr. Meenal Sarmalkar, she did not complain of any pain in her private parts. However, when her FIR was recorded she had, for the first time, stated that she had pain in her private parts. He submitted that the rape alleged was merely on the basis of suspicion and there was no material on record to indicate that the said offence was committed by the accused. He then submitted that, in any event, the applicant had not entered the bed-room, since, in her entire statement, she had nowhere mentioned the present applicant entering the bed-room at any stage and, therefore, the applicant was entitled to be released on bail.

7. The learned Counsel appearing on behalf of the complainant, on the other hand, invited my attention to the provisions of section 376(2)(g) of the Indian Penal Code and the Explanation-1 to the said provision. She submitted that the said explanation clearly reveals that if an accused had acted in furtherance of the common intention of committing gang rape even if some of the accused did not commit the offence of rape, they would also still be liable for committing the said offence. She submitted that sentence for the said offence is 10 years which could extend upto life. She further submitted that the applicant herein was not the permanent resident of Mumbai and he is residing at Qatar and that he is likely to abscond, if released on bail. She invited my attention to the judgments of the Apex Court in Vishwanath & Others Vs. State reported in (2008)5 SCC 354 and in Pramod Mahto and Ors. Vs. State of Bihar reported in AIR 1989 SC 1475.

8. In rejoinder, the learned Counsel appearing on behalf of the applicant submitted that the ratio of the said judgment would not be applicable to the facts of the present case and submitted that in view of the law of precedents, judgment should be considered as precedent only if it is shown that the facts and circumstances of the case are similar. He submitted that this position was reiterated right from the judgment of the House of Lords in Quinn Vs. Leatham reported in [1900-3] ALL E.R. Rep. 1 upto the recent judgments of the Apex Court. He then submitted that so far as question of common intention is concerned, from the material which is on record, it could not be said that, even otherwise, applicant had acted in furtherance of common intention. He submitted that the applicant was not in the complainant's rickshaw and, therefore, it could not be said that he shared common intention with other three accused who were in the bed-room and against whom the allegations were made.

9. In my view, taking into consideration the facts and circumstances of the case, I am not inclined to accept the submissions made by the learned Counsel appearing on behalf of the applicant. Allegations which are made by the complainant are grave and serious. The circumstances clearly show that the allegations which are made by the complainant cannot be said to be totally unfounded at this stage. The complainant from her complaint had clearly expressed the intention that she wanted to go to Club Bling in Hotel Leela at Andheri to meet her friend. However, after she was compelled to drink beer by accused, she felt giddy and lightheaded and, thereafter, was practically at the mercy of the accused. Though, she had expressed her intention, the accused took her to Andheri, obviously against her wish and, thereafter, the said offence had taken place.

10. Provisions of section 376(2)(g) were amended as a result of increase in number of offences of gang rape and the Legislature in order to ensure that such type of offences do not go unpunished, inserted Explanation-1 to section 376(2)(g). The said Explanation-1reads as under:-

"Explanation-1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section."

Perusal of the said explanation clearly discloses the intention of the Legislature that apart from actual perpetrators in the crime even those persons who have assisted, aided and have shared common intention of other accused also are made liable. The sentencing policy of the State also is evident from the punishment which is prescribed for gang rape. The minimum sentence prescribed for gang rape is 10 years and maximum being life. Further, it is specifically provided that if the Court which is trying the accused in such case wants to award lesser sentence than the minimum sentence which has been prescribed by the Code, the Judge is supposed to give special reasons for that purpose. This explains the intention of the Legislature in treating such kind of offence as serious offence against the individual in particular and society in general.

11. While considering the question of bail, therefore, the Court has to take into consideration gravity of the offence, apart from other circumstances such as likelihood of accused absconding or fleeing away from justice as also allegations which are made against the accused. While considering the grant of bail parameters which are to be taken into consideration are quite well settled and it is not necessary for me to refer to various judgments of the Apex Court and this Court which have been rendered from time to time. The Court, while considering the application for bail, is not supposed to weigh and sift the material which is on record or give findings on merits. However, the Court can consider whether there is any prima facie evidence against the accused. Though much reliance has been placed on the statement of the complainant who was immediately examined and the FIR which was thereafter recorded and much emphasis has been laid on the so-called discrepancy between the two statements viz. naming of three persons in the first statement and thereafter naming of six persons in the subsequent statement, it has to be noted that when offences of this type take place it is reasonable to assume that the victim was not in a proper frame of mind and, in this case, when the allegations have been made of stupefying substance being administered to her which allegations appear to be not without substance, particularly in view of the C.A. Report which shows the presence of cannabis in urine sample of the complainant, it is not expected that the victim would be in a position to give details of the crime which was committed and, therefore, such a discrepancy, in my view, cannot form the basis for granting bail to the accused. Though it is strenuously urged that the Investigating Officer who had recorded the statement nowhere mentioned that the urine sample had been taken and, therefore, veracity of the said C.A. Report was doubtful, in my view, at this stage, it is not possible to consider these aspects and it would be open for the accused to agitate this issue at the final hearing of the case. Though much emphasis also has been laid on the question of common intention and in furtherance of common intention, in my view, this submission also cannot be accepted. It is a well settled position in law that common intention has to be gathered from the circumstances which existed and which are brought on record and it is not necessary that common intention should exist from the beginning and that it can develop at the last minute before commission of the offence.

12. In the present case, in my view, there is sufficient material on record to indicate that there existed common intention on the part of the applicant. The complainant was invited by her friend Annie Brown. She met some of the accused in February, 2009. Thereafter, she was taken to the hotel where she was forced to drink beer and, after drinking it, she started feeling giddy and lightheaded. Thereafter, though she insisted that she should be permitted to go to Club Bling in Hotel Leela at Andheri to meet her friend, an impression was given to her that she was being taken to the said Club Bling in rickshaw and, at the last minute, this plan was changed and though she insisted and told rickshaw driver that she should be taken to Club Bling, all the accused, without her consent, took her to the apartment. What happened thereafter also is relevant. Though, it is alleged that this applicant did not enter the bed-room, the fact that he continued to stay there till the next morning is borne out by the further statement of the complainant who has stated that all boys got up in the morning at about 10 A.M and when she got up in the morning, she found that her underpants and pants were removed and brought to her ankles and that her bra was also unhooked. Therefore, taking into consideration these facts, it cannot be said, at this stage, that the applicant did not share the common intention of other accused. Even otherwise, mere presence of the applicant at the place is sufficient if there are circumstances which show that he had acted in unison in furtherance of their common intention. The said submission made by the learned Counsel for the applicant, therefore, also cannot be accepted. Applicant also is a permanent resident of Qatar and, if released on bail, may not be available for trail.

13. Taking into consideration the seriousness of the crime and the gravity of the offence, in my view, this is not a fit case for grating bail. Application for bail is, therefore, rejected.

14. Trial Court shall not be influenced by any observations made by this court while rejecting this application for bail filed by the applicant since these observations are prima facie in nature and the Trial Court shall decide the criminal case on its own merits and in accordance with law.

15. I have already given directions to the Sessions Court in Criminal Application No.4711 of 2009 to hear and decide the case expeditiously and, therefore, no separate directions need be given in this application.

16. Application is accordingly disposed of.

Application dismissed.