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2013 DIGILAW 16 (MAN)

MD. Thoi @ Thoiba v. State of Manipur and Anr.

2013-11-25

N.KOTISWAR SINGH

body2013
JUDGMENT N. Kotiswar Singh, J. – Heard Mr. Th. Ibohal Singh, learned counsel appearing for the petitioner and Mr. R.S.Reisang, learned P.P. appearing for the State. 2. The present application has been filed u/s 439 Cr.P.C. praying for releasing the petitioner/accused on bail who has been in custody in connection with FIR case No. 1l2(11)12 MRG P.S. u/s 376/447/323/406/417/34 read with Section 200 Cr.P.C. The petitioner was arrested in connection with FIR case and his bail application was rejected by the Court of CJM, Bishnupur on 17.9.2013 and thereafter, the petitioner again moved the Court of Sessions Judge, Bishnupur which also rejected his application on 17.10.2013. Being aggrieved, the petitioner has now approached this Court under section 439 CrP.C. for enlargement on bail. 3. The case against the petitioner arose out of the complaint filed by one Hamida Begum, the proforma respondent before the Court of Judicial Magistrate, Bishnupur alleging that on 13.11.2013 at about 7.30 pm, while the complainant was cooking alone at her residence, the petitioner-accused entered the room where the complainant was cooking and after locking the door came near to the complainant and forcibly touched the body of the complainant. The complainant also shouted for help but the petitioner-accused had forcible sexual intercourse with her. In the meantime, other members of the family and other neighbours who were returning after participating in a Nikah ceremony, rushed inside the house of the complainant and rescued the complainant and apprehended the petitioner/accused. The said complaint was converted to an FIR case on the direction of the learned CJM, Bishnupur. The petitioner obtained anticipatory bail from the Court of Addl. Sessions Judge, Fast Track Court, Manipur West on 31.01.2013, which, however was subsequently set aside by this Court and the application for anticipatory bail was directed to be considered afresh on 24.7.2013. The learned Addl. Sessions Judge, Fast Track Court, after perusing the records rejected the said anticipatory bail application moved by the petitioner-accused. Accordingly, the petitioner surrendered before the I.O. of the case on 3.8.2013 but his bail applications were subsequently rejected by the Courts below as mentioned above. 4. The learned Addl. Sessions Judge, Fast Track Court, after perusing the records rejected the said anticipatory bail application moved by the petitioner-accused. Accordingly, the petitioner surrendered before the I.O. of the case on 3.8.2013 but his bail applications were subsequently rejected by the Courts below as mentioned above. 4. Learned counsel for the petitioner by referring to the bail objection filed before the Court has contended that in course of the investigation, the complainant was examined medically at the Department of Forensic Medicine, RIMS, and the examining doctor had given the opinion that her Labia Majora, Labia Minora, Vulva and anus were all intact and it was not consistent with recent sexual intercourse, though it was also mentioned that there was an old tear in her hymen at 4-7 degree clock position. Further, learned counsel for the petitioner draw attention of this Court to the said bail objection report in which it is mentioned that the petitioner was also examined medically on 3.8.2013 by the Department of Forensic Medicine, RMS and the Doctor gave the opinion that no definite opinion can be given as to whether the petitioner had performed recent sexual intercourse in the ordinary way and there is nothing to suspect about his potency. Learned counsel for the petitioner, accordingly, has strongly contended that as the medical report does not indicate any injury on the private parts of the complainant and the medical report also does not show that there was sexual intercourse recently, it shows that he has been falsely implicated on the charge of rape. Learned counsel for the petitioner on the basis of the aforesaid medical opinion has contended that since the medical report does not support sexual intercourse, the question of rape does not arise, as such the petitioner is entitled to be released on bail as the complaint was filed by the complainant falsely and under duress. 5. The learned P.P. has produced the case diary and on the basis of the said case diary has submitted that there are sufficient evidences implicating the petitioner in the rape charge and as such the application is liable to be rejected. 5. The learned P.P. has produced the case diary and on the basis of the said case diary has submitted that there are sufficient evidences implicating the petitioner in the rape charge and as such the application is liable to be rejected. A perusal of the case diary shows that even though on medical examination of the complainant on 19.11.2012, the doctor had given the opinion that the clinical findings are not consistent with recent sexual intercourse, yet the complainant had categorically stated that she was sexually assaulted by the petitioner. One Mina Bibi, who was an aunt of the complainant who reached the place of occurrence at the relevant time found the petitioner-accused inside the room trying to put on his dress/trouser and nabbed him inside. By that time, other local persons also had arrived at the place of occurrence on hearing the commotion who had apprehended the petitioner from the said place. Therefore, there is clear evidence that the petitioner was at the place of occurrence at the relevant time. The petitioner was also seen by the aunt of the complainant in a situation where he was trying to put on his trouseRs. The complainant herself has categorically stated that she had been violated. Though the medical report as mentioned in the case diary may be helpful to the petitioner at the time of trial, there is no categorical finding that no rape could have been committed. The medical report also mentions about an old hymen tear at 4-7 degree clock position. It may be also mentioned that the Hon’ble Supreme Court in Wahid Khan vs. State of M.R, (2010) 2 SCC 9 has held that full penetration on the female organ is not sine qua non for proving rape and even slightest penetration is sufficient to make the offence of rape and depth of penetration is immaterial. Therefore, all these aspects and contentions raised by the petitioner can be duly looked into at the time of consideration of framing charges or at the trial. It has been stated by the learned P.P. that certain seized items, i.e. one phanek, vaginal swab, urethral swab, etc. have been sent to the Forensic Laboratory at Pangei for expert opinion and the result is awaited and the charge sheet is going to be filed soon. It has been stated by the learned P.P. that certain seized items, i.e. one phanek, vaginal swab, urethral swab, etc. have been sent to the Forensic Laboratory at Pangei for expert opinion and the result is awaited and the charge sheet is going to be filed soon. Accordingly, considering the materials on records and also the seriousness of the charge against the petitioner, this Court is also of the view that no case has been made out at this stage for having any different view from the one taken by the learned Sessions Judge, Bishnupur and accordingly, this application stands dismissed. ____________