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Allahabad High Court · body

2005 DIGILAW 1625 (ALL)

Surendra Singh, Saudan Singh v. State of U. P.

2005-08-31

RAVINDRA SINGH

body2005
RAVINDRA SINGH, J. ( 1 ) HEARD Sri V. K. Tripathi, learned counsel for the applicant, Sri Rajiv Kumar Srivastava, learned counsel for the complainant and the learned A. G. A. ( 2 ) THE applicant has applied for bail in Case Crime No. 333 of 2004 under Sections 376 and 506 i. P. C. P. S. Baldeo District Mathura. ( 3 ) FROM the perusal of the record, it appears that in the present case, the F. I. R. was lodged by rajvir Singh at P. S. Baldeo on 3. 12. 2004 at 6. 20 P. M. in respect of the incident which had occurred on 3. 12. 2004 at about 3. 00 P. M. The distance of the police station was about 10 Kms. from the alleged place t)f occurrence. The applicant is named in the F. I. R. ( 4 ) ACCORDING to the prosecution version, the prosecturix Km. Luxmi, sister of the first informant was at her agricultural field. On 3. 12. 2004 at about 3. 00 P. M. , the applicant also reached there. The prosecutrix was alone at that time so she was dragged by the applicant in a field of mustered crops and at the pistol point he committed the rape with her. But thereafter a few time, the brother of the first informant reached at his filed and heard the sound weeping of the prosecutrix. He rushed towards there and saw that the applicant was committing the rape with the prosecutrix. The applicant successfully ran away from the place of occurrence. ( 5 ) THE prosecutrix was medically examined on 3. 12. 2004 at 11. 30 P. M. No mark of injury was seen on her person. Hymen was torn at 4 or 5 places. It was old healed. The report of the pathologist shows that no dead or alive spermatozoa was found in the vaginal smear. ( 6 ) IT is contended by the learned counsel for the applicant that according to the prosecution version, the applicant was committing rape with the prosecutrix in a muster crop after draging from her field and the applicant has not committed the muster rape at the place where the prosecutrix was originally sitting and according to the prosecution version itself, the prosecutrix was alone at that time. If the proseuctrix was not the consenting party, the rape would have been done at the place where the prosecutrix originally sitting and there was no need of taking her in a muster crop. It is further contended that the prosecutrix was a well developed girl according to the medical examination report also, her breast was developed and pubic heirs were present. Hymen was tourned and old healed. She was habitual of sexual intercourse and no definite opinion about rape could be given and no injury was seen on her person. It shows that she had not made any resistance. It is contended that she was a consenting party but the applicant and prosecutrix was seen in a compromising position by the brother of the prosecutrix. Thereafter, a coloured version has been given to show the innocence of the prosecutrix by alleging that the applicant has committed rape at a pistol point without the consent of the prosecutrix. ( 7 ) IT is opposed by the learned A. G. A. and by the learned counsel for the complainant by submitting that according to the X-ray report, the prosecutrix was found aged about 14-15 years and the rape was committed with her by the applicant at the pistol point. The statement of the prosecturx was recorded under Section 161 Cr. P. C. and 164 Cr. P. C. in which she clearly stated that the rape was committed by the applicant at the pistol point. The under garments of the prosecutrix were having the stain of blood and semen. So the applicant is not entitled for bail. ( 8 ) AFTER considering the facts and circumstances of this case and the submissions made by the counsel for the applicant, learned A. G. A. and the learned counsel for the complainant, it appears that the age of the prosecturix was below 16 years and according to the prosecution version, the rape was committed with her at the pistol point and in such circumstance, generally the prosecutrix does not make a physical protest, so the injuries are not found on the external part of her body and in rare case , the protest is made at the cost of her life. If the prosecutrix is under 16 years of age and the sexual intercourse is done with that girl, with her free will and consent, it will come within the purview of the definition of rape. In the present case also, it is said that the rape has been committed with a girl under the 16 years of age. ( 9 ) IN view of the facts and circumstances of the case, the submissions made by the counsel for the applicant , learned counsel for the complainant and the learned A. G. A. , the applicant is not entitled to be released on bail. ( 10 ) ACCORDINGLY this bail application is rejected at this stage. . .