MOHAMMED RAFIQUE SHAIKH AHMEDQ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS application is filed for bail by the petitioner who is accused of an offence under the provisions of Sections 376(2) (g), 366, 323 and 506 of IPC. In other words the petitioner is accused of having committed gang rape on the prosecutrix who has filed complaint to the Police on 10th March 1996 in respect of the rape which was committed on her on the night of 8th March 1996. She had gone out of her house in the evening for the repair of her sewing machine and on seeing that the shop was closed she wanted to come back when she was taken into an autorickshaw in which one of the accused was known to her and was friendly with her. This accused was named in the FIR itself and the complainant had stated that he also had forcible intercourse with her. The prosecutrix was taken to a lonely place where five persons had committed rape on her and ultimately she was brought back and left near a school from where she came home. Naturally after what had happened to her on that night she cannot be expected to rush to the Police Station immediately. Unlike many other cases of this nature the complaint was not filed too late as the complaint came to be filed after a gap of only one day.

(2.) THE Advocate for the accused argues that Prosecutrix had not cried or shouted when she was being carried in the auto-rickshaw and, therefore, it must not be a case of forcible sexual intercourse. According to him the circumstances show that it must have been voluntary because she did not raise shouts and thereafter again after the incident she was brought back in the auto-rickshaw and left near the school. It is not possible to accept this argument because when a girl of 19 years is taken in the night at a lonely place in that event her shouting or raising cries would not have been of any help. She had stated that she was threatened by the accused persons. The medical report shows that she had been subjected to sexual intercourse so also the medical report of this accused who came to be arrested on 11th March 1996 i.e. after two days gap also shows that he had recent sexual intercourse. The prosecutrix had not only identified the accused but he was named in the complaint itself and, therefore, argument of Advocate for the petitioner that the identification parade was held very late i.e in the month of June 1996 has no significance.