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2020 DIGILAW 1043 (ALL)

Ram Ladaite @ Shaukeen v. State of U. P.

2020-07-29

SAMIT GOPAL

body2020
JUDGMENT : 1. Heard Sri R.P.S. Chauhan, learned counsel for the applicant and Sri Manu Raj Singh, learned A.G.A. for the State. 2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant, Ram Ladaite @ Shaukeen, seeking enlargement on bail in S.S.T. No. 1765 of 2019, arising out of Complaint Case No. 102 of 2019, under Section 376-D Indian Penal Code, 1860, Section 6 of The Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station Ujhani, District Budaun. 3. Notice was issued to the opposite party no. 2 vide order dated 12.06.2020. As per office report dated 15.07.2020 placing reliance on the report of the Chief Judicial Magistrate, Budaun, dated 06.07.2020 notice has been served on the opposite party no. 2. No one appears on behalf of the opposite party no. 2 even in the revised list. 4. The present case arises out of an application dated 07.05.2019 which was filed by the opposite party no. 2 under Section 156 (3) Cr.P.C. before the Additional District Judge-VIII, Budaun titled (Maina Devi vs. Shaukeen and Another), P.S. Ujhani, District Budaun for offences under Section 452, 376-D Indian Penal Code, 1860 & 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and The Protection of Children from Sexual Offences Act, 2012 which was directed to be treated as a complaint by the concerned Court. Subsequently, the statement under Section 200 Cr.P.C. of the complainant, Smt. Maina Devi, under Section 202 Cr.P.C. of the victim/prosecutrix, Brijpal the husband of the complainant and father of the victim was recorded under Section 202 Cr.P.C. Vide order dated 02.09.2019, a copy of which is annexed as Annexure-3 to the affidavit, the applicant and co-accused Ranjeet were summoned under Section 376-D I.P.C., Section 6 of The Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to face trial. 5. Learned counsel for the applicant argued that the occurrence in the present matter is alleged to have taken place on 22.04.2019 for which the application under Section 156 (3) Cr.P.C. which was treated as a complaint was filed on 07.05.2019 after a delay of 15 days of the said incident. 5. Learned counsel for the applicant argued that the occurrence in the present matter is alleged to have taken place on 22.04.2019 for which the application under Section 156 (3) Cr.P.C. which was treated as a complaint was filed on 07.05.2019 after a delay of 15 days of the said incident. It is argued that the delay is fatal to the prosecution and is unexplained. The moving of the application under Section 156 (3) Cr.P.C. is an afterthought. It is further argued that no medical examination of the prosecutrix has been conducted which would corroborate the prosecution version. He further argued that the valuable right of the applicant/accused under Section 53-A Cr.P.C. has been violated as he has not been subjected to any medical examination. It is further argued that the prosecution has withheld relevant and important piece of evidence i.e. the public witnesses and as such the accused is entitled to get the benefit of Section 114(g) of Indian Evidence Act. 6. Arguing on merits of the matter, learned counsel for the applicant has argued that in the complaint it is mentioned that the said incident had taken place at around 4.00 a.m. which has been later on shifted to 10.00 a.m. by the complainant in her statement recorded under Section 200 Cr.P.C. It is further argued that the victim/prosecutrix has not given the exact time when the said incident has occurred. It is then argued that the husband of the complainant and father of the victim who was also examined under Section 202 Cr.P.C. has given the time of occurrence as that at about 9.00 a.m. and it is thus argued that the prosecution has failed to give the correct time of occurrence in the present matter. It is further argued that there are various and substantial contradictions in the prosecution version particularly relating to the location of the house of the accused for which it is argued that the victim has in her statement stated that the house of the accused is situated at some distance from her house whereas the husband of the complainant has stated that the house of the accused is opposite to his house. It is thus argued that the prosecution gets suspicious even on the count of the fact that the exact location of the house of the accused where the incident is alleged to have taken place is not fixed in the said statements. For supporting the arguments, learned counsel has drawn the attention of the Court to paragraph nos. 9, 16, 19, 20, 26 and 27 of the affidavit in support of the bail application. It is further argued that the entire prosecution case is a lie and has been initiated just in order to falsely implicate the applicant without any reliable and cogent evidence. 7. Per contra, learned A.G.A vehemently opposed the prayer for bail and argued that the prosecutrix as per the complaint is aged about 15 years. In the complaint, it has been specifically mentioned that after the said incident the complainant along with her daughter went to the police station and gave an application for lodging of the FIR but neither the police registered the FIR nor took the daughter of the complainant for her medical examination. There was a delay-dally from the side of the police in getting the medical examination done. Then the complainant approached the Senior Superintendent of Police, Badaun on 24.04.2019 who in turn advised her to approach the concerned police station on which she again went to the police station where the police personnels started creating pressure on her to settle the matter but they did not register the case. Then subsequently, on 25.04.2019 and 27.04.2019 she again went to the S.S.P., Badaun and gave her applications on which the Circle Officer, P.S. Ujhani took the statement of the girl, got a video clip recorded and sent her to the police station for getting the case registered but due to some political interference her FIR could not be registered. It is further stated in the complaint that later on, on 29.04.2019 application through e-mail was sent by the complainant to the I.G., Bareilly, D.G.P., Lucknow, Chief Minister, Uttar Pradesh and the National President SC/ST Commission, New Delhi from where no response was received and then she sent an application on 30.04.2019 by registered post to the S.S.P., Badaun for which there was again no action and in the last the present application under Section 156 (3) Cr.P.C. dated 07.05.2019 has been moved. It is thus argued that the delay in moving of the application under Section 156 (3) Cr.P.C. is well explained and the complainant resorted to the remedy available to her as per law. He further argued that the applicant is named in the complaint. There is specific allegation of committing rape against him in the complaint and the statements recorded under Section 200, 202 Cr.P.C. 8. Section 53-A Cr.P.C. is reproduced herein below:- “(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. (2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely; (i) the name and address of the accused and of the person by whom he was brought, (ii) the age of the accused, (iii) marks of injury, if any, on the person of the accused, (iv) the description of material taken from the person of the accused for DNA profiling, and (v) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The exact time of commencement and completion of the examination shall also be noted in the report. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section." 9. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section." 9. The question of examination of an accused of rape by a medical practitioner as per the said Section is necessary only if there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence. 10. In the present case the occurrence is dated 22.04.2019. The application under Section 156 (3) Cr.P.C. is dated 07.05.2019. 11. The immediate corroboration of the offence through medical evidence that too by examination of the accused is only of any worth if the same is done immediately after the accused is apprehended and subjected to medical examination for corroborating the same. By passage of time the evidence for corroborating and linking him with an offence of rape looses its efficacy. The prosecution case right from the very inception has been that the victim was taken away by the accused persons at about 4.00 a.m. on 22.04.2019 and was locked up in the house for about 5 hours. The complainant has in her statement mentioned that she had gone to the field for harvesting wheat and when she returned at about 10.00 a.m. she did not find her daughter. The victim has in her statement mentioned that on 22.04.2019 at about 4.00 a.m. her parents had gone to harvest the crop of wheat after which she went to attend the call of nature and while coming back she was taken away by the applicant and co-accused, Ranjeet to the house of the co-accused, Ranjeet. She stated that the applicant and Ranjeet live in the same house. The husband of the complainant and the father of the victim has in his statement stated that he had gone to harvest the crop of wheat on 22.04.2019 at about 4.00 a.m. and was returning at about 9.00 a.m. In so far as, time of the present incident is concerned, the same finds its consistency throughout the complaint and in the statements of the complainant, the victim and Brijpal. The victim was also assaulted by the accused persons and had received injuries on her head and leg which was bleeding, the same is mentioned in the complaint. The victim was given medical treatment for her injuries. She has specifically stated that she was subjected to rape by the applicant and co-accused, Ranjeet. The prosecution in the present case has been consistent so far as the allegation of rape is concerned. There is no suppression of any material fact which would go to the extent of extending any benefit to the accused at this stage as argued to be extended under Section 114(g) of the Indian Evidence Act. The offence is serious in nature of committing rape of a minor girl aged about 15 years as stated in the complaint and the statements of the prosecutrix recorded under Section 202 Cr.P.C. 12. Looking to the facts and circumstances of the case, nature of evidence and gravity of offence, I do not find it a fit case bail, hence, the bail application is rejected. 13. It is clarified that any observation as made in this order is only for the purpose of deciding this bail application and shall have no effect in the proceeding of trial. 14. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 15. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 16. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.