ABHIJIT G. DEVROY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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 Feb., 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 Feb., 2016, 00.32 hours of 28th Feb., 2016, 00.43 hours of 28th Feb., 2016 and 1.42 hours of 28th Feb., 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 Feb., 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 Feb., 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. 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.