SHINE SURAJ AHUJA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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.

(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 sexuah 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.