Criminal Application No.4170 of 2009

1st October, 2009

Petitioner Counsel: Mr. SHIRISH GUPTE,Mr. M. S. MOHITE , Mr. SHRIKANT SHIVADE , Mrs. NEHA BHIDE
Respondent Counsel: Ms. S. D. SHINDE

JUDGMENT

A. P. DESHPANDE, J.:- This is an application moved for grant of bail under Section 439 of the Code of Criminal Procedure by the Applicant who is a film actor, against whom crime has been registered bearing Crime No.188/2009 for commission of the offences under Sections 376, 342 and 506(2) of the Indian Penal Code on lodging of an FIR by one Madhuri Joshi with the Oshiwara Police Station on 14.06.2009. The Applicant came to be arrested on the same day and is in custody since then till date.

2. It is the case of the prosecution that the prosecutrix Madhuri Joshi who is aged about 20 years was working as maid servant at the residential premises of the Applicant since 07.05.2009 and her working hours were from 9:00 am to 6:00 pm. Besides the prosecutrix, two other employees were also working at the residence of the Applicant. One of them was Sangita who was a fulltime servant and used to reside in the same flat of the Applicant whereas other was a cook who used to visit twice a day for preparing the food. One of the witnesses by name Smt. Rekha Mane is acquaintance of the prosecutrix and as the prosecutrix was unemployed at the relevant point of time, Rekha Mane intimated that there is vacancy at the residential premises of the Applicant and hence, the prosecutrix could seek the appointment as a maidservant. The Applicant's family comprises of self, wife and a girl child aged about 1 and 1/2 year. About 8 days prior to the occurrence of incident, wife and daughter of the Applicant had gone to Delhi and were not in the flat on the date when the incident took place. According to the First Information Report, a day prior to the incident i.e. on 13.06.2009 the Applicant was in the flat. The cook after preparing the food had left. By about 12 O'clock Sangita had gone to see her sister and thus, the Applicant and the prosecutrix alone were in the flat. By about 3:30 pm the Applicant had asked the prosecutrix to switch on the cork of the water tab which was located on the loft. Usually this work was being performed by Sangita but as she was not at home, the prosecutrix was asked by the Applicant to do the same. Hence, the prosecutrix climbed up for reaching the loft taking support of the basin and wooden-rest with a view to switch on the tab at which point of time the present Applicant had held the legs of prosecutrix near the ankle. The prosecutrix told the Applicant not to touch her and she came down of her own. It is also stated that the prosecutrix informed the Applicant that she does not like being touched. The Applicant told her that "I am holding you so that you should not fall". But as the prosecutrix protested, the Applicant had left her. After the duty hours were over on that day the prosecutrix left the place along with Rekha Mane as usual.

On the next day i.e. on 14.06.2009 the prosecutrix had reached the residence of Applicant in the company of Rekha Mane. The Applicant was at the residence on that day. At about 3:00 p.m. Sangita, the other servant, after seeking permission from the Applicant had gone to Church and the prosecutrix was washing the utensils in kitchen. At that time, the Applicant was rearranging the cassettes and CDs in his bedroom. The Applicant called the prosecutrix, hence, the prosecutrix washed her hands and went to the bed room. After she entered the bedroom the Applicant locked the door. It is stated in the First Information Report that the sliding windows of the bedroom were already locked. The prosecutrix asked the Applicant as to why is he closing the door and in response to the same, the Applicant asked the prosecutrix to sit on the bed. The Applicant held her hand and made her sit on the bed. The Applicant made the prosecutrix lay on the bed and he mounted on her. The prosecutrix raised an alarm and shouted, at that time, the Applicant had held both the hands of prosecutrix above her head and pressed her legs by his legs. The prosecutrix claims to have continued shouting and hence, the Applicant picked up a pillow from the bed and gagged her mouth. The prosecutrix continued her efforts to raise alarm even in that situation, hence, the Applicant allegedly threaten the prosecutrix with death and removed the pillow from her mouth. The Applicant then removed his cloths and the cloths from the person of prosecutrix and forcibly committed sexual intercourse. After the Applicant committed rape, the prosecutrix put on the cloths. The Applicant confined the prosecutrix in the bedroom upto 5:00 pm by administering the threats. Thereafter, the prosecutrix went to the kitchen and was seated there for sometime as she was stunned. While the prosecutrix was sitting in the kitchen, the door bell rang and the prosecutrix opened the door. Rekha Mane was there in the lobby and according to the First Information Report, the prosecutrix narrated the incident to the said witness Rekha Mane. Rekha Mane tried to console the prosecutrix and took the prosecutrix to the residence of one Adarsha Gupta and his wife. The prosecutrix narrated the incident in brief to them. Along with Mr. & Mrs. Gupta, the prosecutrix in the company of Rekha Mane reached the Police Station and lodged the First Information Report.

3. In the backdrop of the facts and circumstances narrated in the First Information Report, the learned senior counsel Shri. Gupte appearing for the Applicant has submitted that in the first place, sexual intercourse itself is not established. To bring home the point, my attention is invited to the statement of prosecutrix recorded under Section 164 of the Code of Criminal Procedure. In the said statement according to the learned counsel for the Applicant, there is no mention of any sexual intercourse or rape and what is mentioned in the said statement is that the Applicant has committed "Atyachar" on the prosecutrix. In the submission of the learned counsel for the Applicant, the word "Atyachar" would mean atrocity and not rape or intercourse. Barring use of the said word "Atyachar" the alleged act of rape or forcible sexual intercourse has not been stated. It is then submitted that the medical examination of the prosecutrix would reveal that there were no injuries found on the person or private parts of the prosecutrix. However, on local examination of the private parts, hymen was found torn at 3 positions i.e. 3 O'clock, 6 O'clock and 9 O'clock. The tears at 3 O'clock and 9 O'clock positions were healed and this suggests that the prosecutrix was used to sexual intercourse.

4. My attention is also invited to the chemical analyzer's report received from the Forensic Science Laboratory, Mumbai. The said report dated 26.06.2009 deals with 13 articles submitted to the laboratory. Articles at Items Nos.1 to 6 are the cloths worn by the prosecutrix at the time of alleged commission of the crime whereas articles at Items Nos.7 and 8 were seized from the bedroom viz. the place of crime being the bed-sheet and pillow-cover whereas the articles at Items Nos.9 to 11 are the cloths worn by the Applicant at the time of incident and Articles Nos.12 and 13 are the quilt (Rajai) and curtain. No semen or blood was detected either on the cloths of the prosecutrix or the Applicant. The old blood stains were found at Exhibits-2 and 4 which appeared to be washed.

5. Heavily relying on the said chemical analyzer's report, the learned counsel for the Applicant has contended that in absence of detection of the blood or semen on the cloths of the Applicant or the prosecutrix, so also on the bed-sheet it is difficult to believe that any sexual intercourse was committed. No semen or blood stains are found on the person or private parts of the prosecutrix. The learned counsel for the Applicant has also taken an objection to the manner in which the investigation is conducted. It is submitted that there are four flats on each floor of the building. The prosecutrix claims to have shouted when the Applicant tried to commit rape and thus, it was obligatory on the part of the Investigating Officer to record the statements of the occupants of the adjoining flats. It is not in dispute that part of wall of the bedroom of the Applicant is common wall for two flats, one of the Applicant and other of his neighbour. It is then submitted that had the Investigating Officer recorded the statements of the neighbourers the case of prosecutrix that she shouted and raised an alarm would have been falsified. The submission is that the investigation is far from just and fair.

6. Relying on the circumstances referred to herein above, the learned counsel for the Applicant has submitted that in the first place no case of sexual intercourse was made out. Alternatively, it is submitted that the consent cannot be ruled out. It is then emphatically submitted that the investigation is over and the charge-sheet has been filed. The continued detention of the Applicant in custody is not required. In his submission, if the Applicant is not released on bail his further detention in custody would partake the nature of punishment before conviction. It is then stated that the Applicant is ready and willing to abide by whatever conditions are imposed. It is pointed out that the Sessions Judge has already recorded the finding in favour of the Applicant that there are no chances of the Applicant fleeing from justice, however, the bail was refused to the Applicant by the Sessions Judge as he found the apprehension of the prosecution about possibility of tampering of evidence to be well founded. In that context, it is submitted that the Applicant is ready and willing to reside at Delhi where his parents reside and thus, the possibility of tampering with the evidence can be taken care of.

7. Per contra, the learned APP has pointed out that the version of prosecutrix stands corroborated by the evidence of Rekha Mane to whom the prosecutrix had made immediate disclosure of the incident. It is also pointed out that vaginal smear on slides wrapped in paper was sent to the Forensic Science Laboratory and the report of the chemical analyzer clearly shows that the DNA extracted from (1) vaginal smear slides of victim Madhuri and (2) control blood sample of the Applicant was successfully typed at 16 male specific YSTR loci using PCR amplification technique. In the DNA typing, all 16 genetic systems analyzed with the PCR using male specific YSTR system the male haplotypes obtained in vaginal smear slides of victim Madhuri exactly matched with male haplotypes in control blood sample of the Applicant. Taking the support of the said DNA report, it is contended that the sexual intercourse is established and this piece of evidence strongly corroborates the version of the prosecutrix. It is also pointed out that in the medical examination of the Applicant, 03 abrasions were noticed, one on the left wrist, second at the base of right little finger and third at the base of right ring finger. The said injuries/abrasions are stated to be within 24 hours. It is submitted that the injuries would go to support the prosecution case of resistance by the prosecutrix which rules out consent.

8. According to the learned counsel for the Applicant, the said injuries/abrasions could be caused while undertaking the day to day work.

9. While considering the bail application, the Court is not supposed to deal with the submissions in minute details and pronounce of the correctness or otherwise of the same, however, the Court is expected to broadly consider the evidence, material and circumstances on record and then form an opinion as to whether the Applicant is entitled to be released on bail or otherwise. In the facts of the present case the well recognized two guiding factors assume greater significance and the same are (1) possibility of the Applicant fleeing from justice in the event he is enlarged on bail and (2) possibility of the Applicant tampering with the evidence.

10. Having regard to the family background of the Applicant coupled with the fact that the Applicant is permanent resident of Mumbai engaged in acting in the films and being possessed of immovable property at Mumbai, it can be safely assumed that the possibility of Applicant fleeing from justice does not exist. It is also so found by the Sessions Judge.

11. So far as the possibility of tampering of evidence is concerned, the same cannot be ruled out for the reason that the Applicant is more resourceful and better placed as compared to the prosecutrix who is a maid servant. Hence, appropriate conditions will have to be imposed so that the apprehension of the prosecution is properly addressed.

12. With the risk of repetition it has to be stated that the investigation is over and the charge-sheet has been filed and the Applicant is in custody since last 03 and 1/2 months. There is no need for any custodial interrogation at this stage. On prima facie consideration of the evidence and material on record, I am of the view that the Applicant has made out a case for grant of bail and hence, is entitled to be released on bail. I hasten to add that this observation is made only for the purpose of decision of the bail application. The concern of the prosecution about possibility of tampering of the evidence can be taken care of by putting the Applicant to terms.

13. Hence, I pass the following order:

(a) The Applicant shall be released on bail on executing a personal bond in a sum of Rs.50,000/- with one or two sureties in the like amount, subject to the condition that the Applicant shall not stay in Mumbai and shall stay at Delhi till conclusion of the trial. The Applicant shall inform and intimate his residential address of Delhi to the Superintendent of Jail so also to the Investigating Officer before his release from jail.

(b) The Applicant shall not leave India without prior permission of the Court. If the Applicant is possessing a passport, he shall deposit the same with the Investigating Officer immediately on his release from jail.

(c) The Applicant shall attend the nearest Police Station at Delhi once a week till conclusion of the trial with intimation to the Investigating Officer.

(d) The Applicant is permitted to enter city of Mumbai for attending the dates before the Sessions Court in the present case.

(e) The Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case and shall not tamper with the evidence.

(f) Liberty is granted to the Applicant to apply for modification of terms after expiry of a period of six months.

(g) The Application is allowed and disposed of accordingly.At this stage learned counsel for the applicant seeks permission to deposit bail amount in cash for a period of three weeks during which period the applicant would in a position to furnish surety. Permission prayed for is granted. Applicant is allowed to deposit bail amount in cash for a period of three weeks.

Application allowed.