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Allahabad High Court · body

2007 DIGILAW 947 (ALL)

LAXMAN ALIAS TUNTUN YADAV v. STATE OF U P

2007-04-11

SHIV SHANKER

body2007
SHIV SHANKER, J. This is a bail application moved in case crime No. 30 of 2006 under Section 376 of Indian Penal Code, police station Dokati District Ballia. 2. Heard the arguments advanced by the learned Counsel for the applicant as well as learned AGA and perused the record. 3. Learned Counsel for the applicant has contended that Investigating Officer has recorded the statement of victim Tara Devi under Section 161 Cr. P. C. what happened with her by password or sign. She was also produced before the Magistrate concerned for recording her statement under Section 164 of Cr. P. C. expert of deaf mute was also summoned and her statement was started before the Magistrate. But after the best efforts, the teacher of deaf mute school could not understand the expression/language of the victim. Neither victim has given any password against the accused applicant for committing offence of rape with her. Therefore, how, the Investigating Officer has recorded her statement under Section 161 Cr. P. C. It is further submitted that she was medically examined by the woman doctor who has found that no mark of injury was seen on the private part of the victim. No bleeding discharged from the vagina. She was referred by the doctor to radiologist for ascertaining the age as well as sign of rape. Thereafter, radiologist examined the pathologist report and radiologist report of the victim, wherein she was found aged about of 16 years and in regard to rape, he submitted that no definite opinion about the rape can be given. Therefore, according to the medical report as well as statement of victim under Section 164 of Cr. P. C. no offence is made out against the applicant for committing offence of rape upon the victim. It is further contended by the learned Counsel for the applicant that the victim could not state anything before the Magistrate at the time of recording her statement under Section 161 of Cr. P. C. due to her deafness. How the First Information Report was lodged by the first informant against the applicant for committing offence of rape with her daughter and how he has given statement under Section 164 of Cr. P. C. in support of version of First Information Report. P. C. due to her deafness. How the First Information Report was lodged by the first informant against the applicant for committing offence of rape with her daughter and how he has given statement under Section 164 of Cr. P. C. in support of version of First Information Report. It is further contended that it was mentioned in the First Information Report that blood are coming till date on the date of lodging the FIR from the private part of his daughter but medical report has declined from the version of the prosecution. Therefore, whole prosecution story set up by the first informant is created suspicious. It is further contended that First Information Report has been lodged with delay of 3 days but no sufficient reason regarding the delay has been given in First Information Report. It creates suspicion regarding the truthfulness of it and same was lodged after consulting and thought by legal mind against the applicant only in lieu of village partibandi. It is contended that he has surrendered in the Court in this case. Therefore, no identification parade was made by the prosecution. In this circumstances, victim could not identify the applicant. Therefore, identification parade was not held. It is further contended that this occurrence has allegedly happens in open place while more so the public as well as other persons of locality can look the incident but there is no eye witness of the incident. No person of the locality has supported the version of the prosecution. In such circumstances, the bail application of the present applicant is liable to be allowed. 4. On the other hand, learned AGA has submitted that it is a case of rape with a deaf-mute girl supported by the medical evidence. 5. This incident had allegedly taken place on 8-10-2006 at 3. 00 p. m. while, the First Information Report was lodged by one Radhey Shyam Bind, the father of the victim on 11-10-2006 at 3. 15 p. m. Therefore, it has been lodged with a delay of 3 days. This delay has been explained by the first informant in his statement recorded under Section 161 Cr. P. C. that he was doing some job for the livelihood at Varanasi. His wife, Sheela Devi, victim Tara Devi and younger children were living at his house. 15 p. m. Therefore, it has been lodged with a delay of 3 days. This delay has been explained by the first informant in his statement recorded under Section 161 Cr. P. C. that he was doing some job for the livelihood at Varanasi. His wife, Sheela Devi, victim Tara Devi and younger children were living at his house. The information regarding the alleged occurrence was given by his wife to the first informant at Varanasi and he had returned to his house from Varanasi. Thereafter, lodged First Information Report. Therefore, sufficient reasons have been given in lodging First Information Report regarding such delay. However, it is worthwhile to mention here that in rape cases a person thinks many times whether First Information Report should be lodged or not, because it downs the prestige of victim and her family members in the eye of the society. Tensions gripped in the minds of family members. They lost their wits, because they are afraid of stigma. The First Information Report is lodged only against the person who is the real culprit of the offence committing a rape. In such circumstances delay in lodging the FIR in rape cases has no importance. According to the First Information Report and statement of victim recorded under Section 161 Cr. P. C. it has been specifically stated that victim Tara Devi had gone to the field to attend the call of nature. Therefore, the applicant reached there and caught hold the victim and she was fallen down by him and he committed rape with her forcibly without her consent. Thereafter, the victim returned her home and told all things to her mother regarding the alleged offence of rape happened to her. Thereafter, mother of victim stated to her husband after calling him from Varanasi regarding such offence who lodged the First Information Report against the applicant. 6. It is important to note here that the victim Tara Devi was living with her mother at her house and she stated about the offence of rape done by the applicant to her mother. Therefore, she could easily disclose all things by password or sign done by the applicant and as such activities could not be shown by the victim before any Magistrate in the Court. Therefore, she could easily disclose all things by password or sign done by the applicant and as such activities could not be shown by the victim before any Magistrate in the Court. Meaning thereby, she could not say before the Magistrate how the rape was committed by the applicant because she was unable to speak and such type of shameless act could not be told by her in the Court. The mother is the best person to whom the story of rape could easily be told by the victim by sign or password by showing her activities. There will be no effect in not giving statement before the Magistrate under Section 164 Cr. P. C. It is also worthwhile to mention here that the victim is an illiterate lady, therefore, it has not come anywhere that she was studying in any deaf mate school. Therefore, she could not tell something to the deaf mute teacher. In such circumstances, it is not believable that she did not tell whole incident to her mother by her activities sign or password etc. Therefore, the First Information Report was lodged on the information of the mother of the victim and similarly the statement of the first informant was recorded by the Investigating Officer as well as the statement of victim. 7. The applicant is the resident of the same village is not disputed. In rape cases no body can be implicated falsely after exonerating the main culprit. It is also worthwhile to mention here that no person can be implicated falsely due to partibandi of the village regarding the offence of rape of unmarried minor even a deaf girl. As the prestige of a girl and her parents downs in the society and that cannot be recovered in future. False case regarding theft, marpit, robbery can be made for implicating the person due to partibandi of the village but not in the case of a rape. This contention has no force that he has been implicated falsely in this case. It is also important to note here that the applicant is resident of same village of the first informant and she was known also prior to the alleged occurrence. And, he has been named in the FIR as well as the statement of the prosecution witnesses. In the circumstances, there was no need to hold test identification regarding the applicant. It is also important to note here that the applicant is resident of same village of the first informant and she was known also prior to the alleged occurrence. And, he has been named in the FIR as well as the statement of the prosecution witnesses. In the circumstances, there was no need to hold test identification regarding the applicant. The First Information Report was lodged after 3 days of the alleged occurrence. In the meantime the bleeding from the private part of the victim may be stopped. Blood stained Kachchi and Salwar were taken to the police station for lodging the First Information Report as stated by the first informant and the victim. Therefore, this contention has no force that no blood has come out from the private part of the victim. It is also worthwhile to mention here that it depends upon the experience of the doctor. An inexperienced doctor usually does not mention the full characteristics of injuries in the medical report. When blood was not coming from her private part, in circumstances, the blood stained kachchi and salawar of victim could not be given in custody of the police. Therefore, this shows that she was not the consenting party and she is a deaf lady and any other person has not seen offence of rape. Consent is immaterial when the offence of rape is committed with a girl under the age of 16 years. In the present case, the circumstances shows that she did not give her consent for sexual intercourse. It is also worthwhile to mention here that victim is a deaf and mute girl. Her life may be spoiled in future having stigma of rape. She could not raise alarm at the time of committing rape because she was a deaf girl. Statement of the prosecutrix victim supported the medical report. There will be no effect in the case of rape in absence of any independent witness. Such type of offences are not committed in the presence of persons, therefore, there can be no eye witness regarding the offence of rape with a deaf girl in a jungle. This is a case of rape with a deaf girl aged about 16 years who is illiterate, untrained lady by the present applicant. 8. Such type of offences are not committed in the presence of persons, therefore, there can be no eye witness regarding the offence of rape with a deaf girl in a jungle. This is a case of rape with a deaf girl aged about 16 years who is illiterate, untrained lady by the present applicant. 8. Considering the facts and circumstances of the case, I do not find any force in the arguments advanced by the learned Counsel for the applicant and his bail application is not liable to be allowed. Consequently, bail application of the present applicant is hereby rejected. The trial Court is directed to decide the case expeditiously preferably within a period of three months from the date of production of certified copy of this order before him invoking the powers under Section 309 of Crl. P. C. Bail rejected. .