Research › Search › Judgment

Bombay High Court · body

2016 DIGILAW 1249 (BOM)

ABHIJIT G. DEVROY v. STATE OF MAHARASHTRA

2016-07-19

A.M.BADAR

body2016
JUDGMENT : A.M. Badar, J. The applicant/accused in Crime No.35/2016 for offences punishable under sections 366, 376(D), 342, 328 and 114 of the Indian Penal Code registered with Mundhwa Police Station, Pune by this application is seeking his release on bail. 2. Heard the learned counsel for the applicant/accused. He argued that the version of prosecutrix reflected from her F.I.R. lodged on 28th February, 2016 to the effect that she regained consciousness at 2.00 a.m. on 28th February, 2016 is per se incorrect. The learned counsel relied on the Call Detail Records of cell number filed with the charge-sheet and submitted that the cell number of the prosecutrix is 893390725. The learned counsel argued that there were calls from this number and some incoming calls on this numbers at 9.39 p.m. of 27th February, 2016, 00.32 hours of 28th February, 2016, 00.43 hours of 28th February, 2016 and 1.42 hours of 28th February, 2016. This according to the learned counsel prima facie shows that the informant/prosecutrix is making incorrect averment that she was unconscious upto 2.00 a.m. of 28th February, 2015. It is further argued that the only evidence against the present applicant Abhijeet is to the effect that co-accused Abhinay Sahi uttered in response to the queries of the informant/prosecutrix that 'he alone had not done the act and ask others'. 3. I also heard the learned APP. The learned APP argued that the applicant came to be identified by the informant/prosecutrix on 2nd April, 2016. Spot panchanama shows that bed sheets on beds of two bedrooms were having stains and ladies purse was also found at the spot which is the flat in possession of co-accused Devrath. According to the learned APP, personal search of the applicant resulted in seizure of the present packet of condom. At the time of his arrested, half T-shirt of the applicant was found torned. The learned APP further argued that staff of the hotel stated that the informant/prosecutrix was in drunken state. Statement of witness Pawankumar shows that young boys used to make noise in the flat in question and particularly on 28th February, 2014, he heard sounds from the said flat at about 2.00 a.m. The learned APP argued that the statement of Pritesh Gupta shows that the applicant and co-accused were visitors to the flat in question. My attention is drawn to statements of Sunni Thadani and Sou. My attention is drawn to statements of Sunni Thadani and Sou. Sonam Thadani to submit that it was preplanned act of accused persons and, therefore, Florentina was set up for making phone calls to father of the victim. The condition in which the informant/prosecutrix returned to her house is also pointed out. 4. I have carefully perused charge-sheet. It is seen from the F.I.R. that the informant/prosecutrix and co-accused Abhinay Sahi were working at Mahindra Tech Company. There was gathering at the said Company on 27th February, 2015. The informant/prosecutrix and co-accused Abhinay Sahi decided to go for a programme of get together. The informant/prosecutrix picked up co-accused Abhinay Sahi and after 4.30 p.m. they went to Hotel Irish (Chilly). Co-accused Abhinay and the informant/prosecutrix had planned to go together as seen from the exchange of text messages between them filed with the charge-sheet. It is seen from the text messages that co-accused Abhinay had proposed to her to have alcoholic drink but the informant/prosecutrix had not accepted the proposal by stating that it is not proper to have such drinks as they are required to attend official party. The informant/prosecutrix conveyed to the co-accused that she does not want to drink and drive. 5. Charge-sheet further shows that the couple was at Hotel Irish (Chilly) upto about 10.00 p.m. of 27th February, 2015. Statement of staff of Hotel Irish (Chilly) shows that the informant/prosecutrix had four drinks of iceland ice T which is cocktail containing Vodka, Gin, Rum, Takila and other liquids. Statement of employees of Hotel Irish (Chilly) shows that the informant/prosecutrix was not in a position to walk. At this stage, it is apposite to note that co-accused Abhinay vide text messages had proposed for a booze session. The reply of the informant/prosecutrix prima facie do not show that the informant/prosecutrix is a teetotaler. On this backdrop, it is seen that she has consumed four drinks each containing 75 ml. of alcohol in that night. In this context, her averment in the F.I.R. that she drank iceland ice T and when she had been to the washroom, co-accused Abhinay might have spiked her drink, needs to be considered. 6. As seen from the F.I.R. that the informant/prosecutrix averred that she regained consciousness at 2.00 a.m. of 28th February, 2015. She further avers that she was found not wearing nicker and her kurta was in torn condition. 6. As seen from the F.I.R. that the informant/prosecutrix averred that she regained consciousness at 2.00 a.m. of 28th February, 2015. She further avers that she was found not wearing nicker and her kurta was in torn condition. She further reported that at that time, she was having pain in her private parts and she came to know that she was subjected to forcible sexual intercourse. The report of the medical examination of the informant/prosecutrix corroborates her version regarding forcible sexual intercourse on her. 7. Averments in the F.I.R. shows that the informant/prosecutrix found one girl and 4/5 boys in that flat apart from co-accused Abhinay Sahi. The informant then questioned Abhinay Sahi and in reply, as averred by the informant/prosecutrix, Abhinay Sahi stated that he alone had not done the act and the informant/prosecutrix should ask the same to others also. 8. As seen from the F.I.R., the informant/prosecutrix then accompanied accused Abhinay Sahi and then by her car she followed the motor cycle of Abhinay Sahi. They then took tea at Tea Stall at 2.00 a.m. of 28th February, 2016. At that time, the informant/prosecutrix made a call to co-worker Florentina. This, according to the informant/prosecutrix happened at the instance of the applicant Abhinay Sahi. 9. Statement of father of the informant/prosecutrix shows that the prosecutrix returned at about 2.00 a.m. to 2.30 a.m. wearing torn kurta and then disclosed the incident to her family members. 10. From the medical evidence collected by the prosecution, it is obvious that the informant/prosecutrix was subjected to rape after she left hotel Irish (Chilly) in company of co-accused Abhinay Sahi. As per the version of the prosecutrix she was taken to a flat by accused Abhinay Sahi. It is seen from the charge-sheet that the said flat was taken on leave and licence basis by co-accused Devrath and witness Pritesh Gupta. Charge-sheet shows that remaining accused persons were frequent visitors to the flat in possession of accused No.3 Devrath. According to the prosecution case, when the informant/prosecutrix regained consciousness, the present applicant/accused was there along with accused No.6 Tanushree. 11. Offence alleged against the present applicant and co-accused is punishable under section 376(D) of the Indian Penal Code. According to the prosecution, the informant/prosecutrix was subjected to rape by gang of accused persons. According to the prosecution case, when the informant/prosecutrix regained consciousness, the present applicant/accused was there along with accused No.6 Tanushree. 11. Offence alleged against the present applicant and co-accused is punishable under section 376(D) of the Indian Penal Code. According to the prosecution, the informant/prosecutrix was subjected to rape by gang of accused persons. Section 376D requires rape of a woman by one or more persons constituting a group or acting in furtherance of a common intention. In the case in hand, as seen from the statement of staff members of the hotel Irish (Chilly), accused Abhinay Sahi had taken the informant/prosecutrix to a flat and presence of present applicant and co-accused was seen when the informant regained consciousness The informant/prosecutrix had heard utterances of accused Abhinay Sahi that she should ask other persons and he had not done the act alone. The question will be whether with this evidence, one can jump to a conclusion that the informant/prosecutrix was subjected to rape by one or more persons constituting a group of gang in further of common intention. It is seen from statement of witnesses particularly Pritesh Gupta that there used to be cocktail party in the flat used to be attended by young boys as well as girls. Finding of a packet of condom in the packet of young boys cannot be given over bearing importance more particularly when evidence against the present applicant is only utterances of main accused Abhinay Sahi. A statement so found in the F.I.R. cannot be susceptible to the only one meaning that everybody present in the flat had sexual intercourse or that they all were acting in furtherance of common intention constituting a group. My attention is drawn to the statement of the informant/prosecutrix recorded on 24th May, 2016 i.e. after more than two and half months wherein the informant/prosecutrix had modulated her version by stating that co-accused Abhinay Sahi disclosed that his four friends present on the spot have also committed rape on her. Evidential value of this belated version needs to be adjudicated during the course of the trial. 12. My attention is also brought to the Call Detail Records which shows that phone calls were exchanged and there were telephonic conversations with cell phone of the informant/prosecutrix at 9.39 p.m. of 27th February, 2015, 00.32 a.m., 00.43 a.m. and 1.42 a.m. of 28th February, 2016. 13. 12. My attention is also brought to the Call Detail Records which shows that phone calls were exchanged and there were telephonic conversations with cell phone of the informant/prosecutrix at 9.39 p.m. of 27th February, 2015, 00.32 a.m., 00.43 a.m. and 1.42 a.m. of 28th February, 2016. 13. Considering this nature of evidence against the present applicant, though the offence alleged is grave with severe punishment, his pre-trial detention is not warranted. No criminal antecedents of the applicant is shown. It is not alleged that the applicant will not be available for trial. Hence the order :- (i) The application is allowed; (ii) The applicant/accused in Crime No.35/2016 for offences punishable under sections 366, 376(D), 342, 328 and 114 of the Indian Penal Code registered with Mundhwa Police Station, Pune be released on bail on his executing P.R. bond in the sum of Rs. 50,000/- with one or more solvent surety in the like amount; (iii) The applicant/accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of accusation against him so as to dissuade him/her from disclosing such facts either to the Court or to any police officer and that he shall not tamper with the evidence; (iv) The applicant/accused shall inform his latest place of residence and cell number after his release and continue to inform the change in residence or cell number, if any, from time to time to the Investigating Officer of the concerned police station and on filing the charge-sheet to the concerned Court; (v) The applicant/accused shall co-operate for expeditious disposal of the trial; (vi) The applicant/accused shall not commit an offence similar to the offence of which he is accused or suspected of commission; (vii) The applicant/accused shall not leave India without the prior permission of the concerned Court; (viii) The application is disposed of accordingly.