ANAND P. CHANAR Vs. THE STATE OF MAHARASTRA

JUDGEMENT

(1.) These Applications are filed for bail under section 439 of Cr. P.C., as the applicants/accused are arrested for the offences punishable under section 366, 342, 376D and 114 of Indian Penal Code in C.R. No. 35 of 2016 registered with Mundhawa Police Station, Pune. The FIR was registered at the instance of prosecutrix aged 24 years old on 28th Feb., 2016.

(2.) It is the case of the prosecution that prosecutrix, who was 24 years old, was working as Technic Support Associate in one Company at Hinjewadi, Pune. The applicant Abhinaya Sahi, who is original accused no.1, was working with her in the company and they were friendly. On 27th Feb., 2016 the company had organized Annual Gathering for the employees of Hinjewadi between 2 p.m. to 9 p.m. The prosecutrix picked up applicant Abhinaya Saha in her car from Yerwada. They decided to have refreshment before going for gathering. So, they went to Hotel Irish (chilly) at around 4.45 p.m. The applicant Abhinaya asked her whether she would like to drink alcohol, for which she refused. Then he ordered for himself a tuborg beer and dry chicken and for complainant paneer and icetea. The complainant went to wash her hands and came back to the table. Thereafter she had two glasses of ice-tea, however, she started feeling dizzy. Before feeling unconsciousness, the complainant noticed that applicant Abhinaya was laughing at her. The complainant didn't remember what happened to her thereafter. She regained her consciousness at about 2 a.m. on 28th Feb., 2016 and found herself to be in a flat. The complainant saw applicant Abhinaya accompanied by his 4 to 5 friends and one girl. The complainant found that her leggings were not worn inside out. Her nicker and slip were lying somewhere else. Her orange colour kurta was torn on one side. She had severe pain in abdomen, lumber portion and in private part. She realized the she has been sexually assaulted, so she questioned accused no. 1 regarding her condition and as to why he had sexually assaulted her. In reply, accused no. 1 told her why only he but ask others also, what they had done to her. After hearing this, the complainant was shocked. Accused no. 1 told her that her father is continuously calling her and she should go home. He assisted complainant to the ground floor and asked her to follow his bike. At Alandi road, accused no. 1 gave the complainant her a cup of tea and told her to convince her office colleague Florentina to complainant's father that she was with Florentina. Thereafter accused no. 1 told complainant to go home. The complainant reached home at around 30 a.m. and informed about this incident to her parents and brother. The complainant's father and brother went to inspect the Hotel Irish(chilly) and came back. Then they took the complainant to Mundhawa police station and gave information about the offence committed by the accused persons and the pain suffered by her due to same. The police officer sent the complainant for medical treatment and registered the complaint.

(3.) The learned counsel for the applicants/accused has submitted that all the applicants/accused are falsely implicated in this case. He submitted that there is no case against accused nos. 2 and 3, i.e,. Anand Chanar and Devrath Dubey. He prays parity, as learned Judge of this Court by order dated 19th July, 2016 in Criminal Bail Application No. 1361 of 2016 has granted bail to co-accused Abhijit Devroy. He relied on the observations made in the said Bail Application by the Single Judge of this Court. He submitted that a packet of condom was found with co-accused Abhijit Devroy when he was arrested but the Judge has taken a view that finding of a packet of condom in the packet of young boys cannot be given over bearing importance. The learned counsel further submitted that the statement of prosecutrix is full of variance and contradictions. In fact there is falsity in her statement if it is compared with the statements of other witnesses, i.e., the waiter of Irish (chilly) Cafe and the statement of Florentina, colleague of the prosecutrix. The learned counsel relied on the whatsapp messages exchanges between the complainant and accused No. 1 Abhinaya. He submitted that from the whatsapp messages it is clear that the girl was not averse to drinks and therefore, they both planned to go to Irish cafe and then to go for the function at their company. He further submitted that from the statement of the waiter, it is found that the girl did not take simple ice tea but four long cocktail iceland ice tea. As she consumed alcohol, she walked down from the first floor of the hotel and walked up to the flat of accused No. 2 where he was staying as a licencee. He further submitted that during 9.30 p.m. to 2 a.m. 6 to 7 outgoing calls on the cell phone of prosecutrix were seen. At around 1.50 a.m. a call was made to Florentina by the prosecutrix requesting her to inform her father that prosecutrix was with her. The learned counsel further argued that the complainant travelled with accused No. 1 who acted as an escort on bike and they both stopped at Alandi road and had tea in the early morning. No woman if gang raped would go with one of the rapists and would not have taken tea along with him after rape. The statement of tea vendor indicates that the prosecutrix was neither fighting nor quarelling with accused no.1. The learned counsel further relied on the medical report of the girl where vaginal swab was taken, no sperm or semen weer found in vaginal swab. He further submitted that in the medical report of the victim, no alcohol was found in the blood. It shows that medical report does not indicate any stupefying substance in the blood of the victim. Therefore, the story of the complainant that she was raped by applicants/accused Nos. 1, 2 and 3 is false. The learned counsel further submitted that young people who are financially independent, they often have free interaction. They drink together and sometimes also take sexual liberty and intercourse is consensual. He submitted that the victim must have lied out of fear of her father and made a cooked up story of gang rape and because of which the three innocent boys are languishing in the prison since last one year. They are young boys with no criminal record. However, because of this one incident, their life is ruined. Therefore, they are to be granted bail.