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2009 Supreme(Bom) 1536
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE V.M. KANADE
Dev Cyrus Colabawala
Versus
The State of Maharashtra
Criminal Application No.4548 of 2009
Decided on: 18-11-2009
For the Applicant:I.M. Mirajkar with T.M. Gole and R.R. Kadam, Advocates.
For the Respondent: Y.M. Nakhwa, APP. For the Complainant:Ms. Manarukna Adenwala, Advocate.
Headnote:INDIAN PENAL CODE, 1860 - Section 376(2) r/w 34 - Proof of common intention of gang rape. - Common intention has to be gathered from circumstances which existed and which are brought on record and it is not necessary that common intention should exist from beginning and that it can develop at last minute before commission of offence.
INDIAN PENAL CODE, 1860 - Section 376(2)(g) - Gang rape - Accused with other raped complainant - Bail application rejected - He prayed bail on ground of parity - Submission that complainant not remember anything - Applicant accused not permanent resident of Mumbai - Prosecution feared his absconding if released on bail - Court not accepted submissions of applicant - Charges of grave nature - Accused made victim to drink some cold drink that was intoxicated - Record indicate common intention of accused persons - Application for bail rejected. - There is sufficient material on record to indicate that there existed common intention on the part of the applicant. The complainant was invited by her friend Annie Brown. She met some of the accused in February, 2009. Thereafter, she was taken to the hotel where she was forced to drink beer and, after drinking it, she started feeling giddy and lightheaded. Thereafter, though she insisted that she should be permitted to go to Club Bling in Hotel Leela at Andheri to meet her friend, an impression was given to her that she was being taken to the said Club Bling in rickshaw and, at the last minute, this plan was changed and though she insisted and told rickshaw driver that she should be taken to Club Bling, all the accused, without her consent, took her to the apartment. What happened thereafter also is relevant. Though, it is alleged that this applicant did not enter the bedroom, the fact that he continued to stay there till the next morning is borne out by the further statement of the complainant who has stated that all boys got up in the morning at about 10 a.m. and when she got up in the morning, she found that her underpants and pants were removed and brought to her ankles and that her bra was also unhooked. Therefore, taking into consideration these facts, it cannot be said, at this stage, that the applicant did not share the common intention of other accused, Even otherwise, mere presence of the applicant at the place is sufficient if there are circumstances which show that he had acted in unison in furtherance of their common intention. The said submission by the counsel for the applicant, therefore, also cannot be accepted. Applicant also is a permanent resident of Qatar and, if released on bail, may not be available for trial.
Taking into consideration the seriousness of the crime and the gravity of the offence, in Court’s view, this is not a fit case for grating bail. Application for bail is, therefore, rejected.
1. Heard the learned Counsel appearing on behalf of the applicant as also the learned Counsel appearing on behalf of the Complainant and the learned APP appearing on behalf of the State.
2. Applicant has been arrested in connection with the offence punishable under section 376(2)(g) read with section 34 of the Indian Penal Code which is registered by Trombay Police Station vide C.R. No.111/2009 dated 15/04/2009.
3. In the present case, charge-sheet has been filed and the matter is ready for framing of charge. However, since discharge applications have been filed by some other accused, charge has not been framed so far. The matter is already transferred to the Fast Track Court and I have given directions to the Sessions Court to dispose of the case as expeditiously as possible and in any event within a period of six months from today in Criminal Application No.4711 of 2009.
4. Brief facts are that the complainant who is a U.S. citizen had come to India for the purpose of studying in TISS. On 11/04/2009, at about 10.30 P.M., according to the complainant, she had gone to visit her friend viz. Annie Brown in her room in the hostel and she inquired with her about her studies. She was told by her that she was proceeding to Darjeeling early in the morning and that her friends wanted to give her farewell party at a Bar and Restaurant Cafe XO and she invited the complainant to join her. Thereafter, present applicant and other four co-accused met her and they went to the said Cafe. The original accused Nos. 1, 2 and 3 were introduced to her in February 2009. Applicant is accused No.5.
5. It is the case of complainant that she was forced to drink beer by one Hersh, though she had requested him not to force her and after she consumed the said drink, she felt giddy and lightheaded. According to the complainant, she wanted to meet her friend at Club Bling at Hotel Leela at Andheri and she was insisting that she should be allowed to go there. However, according to her, she was taken by the accused to the flat of accused No.6 and there accused No 1 – Vinamra, accused No.2 – Jaskaran & accused No. 3 – Hersh came to the bedroom where she was sitting on mattress and molested her and, therefore, she wanted to leave the place. However, when she tried to get up, she lost her consciousness and fell down. In the morning when she got up, she noticed that her pants and underpants were removed upto her ankles and she felt pain in her private parts. Thereafter, two accused took her in rickshaw and gave her contraceptive pills from Chemist Shop and dropped her near her hostel. She, thereafter, informed this incident to Shruti Chakrawarti. Thereafter, her statement was recorded by Police on 15/04/2009. The applicant and other accused were arrested. Application for bail filed by the applicant was rejected by the Sessions Court.
6. Counsel for the applicant invited my attention to the FIR, Medical Report and her statement which was given to Dr. Meenal Sarmalkar. He submitted that in the first statement which was made to the Doctor, she had stated that three persons were involved in the said incident. He then submitted that at no point of time the applicant had entered the bedroom where the accused Nos. 1 to 3 had molested her and where the said incident alleged to have taken place. He then submitted that, however, in the supplementary statement her version was changed and the complainant has mentioned six persons including the present applicant. He submitted that the accused No.6 Kundan was released on bail by this Court by order dated 18th September, 2009 in Criminal Application No.3584 of 2009. He invited my attention to the said order and submitted that the applicant was entitled to be released on bail on the ground of parity. Secondly, he submitted that the Medical Certificate clearly indicated that there were no injuries on the private parts of the complainant and that she did not remember anything. He has invited my attention to the colum
