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2021 DIGILAW 398 (PAT)

Komal Arya @ Kamal Kishori v. State of Bihar

2021-05-27

AHSANUDDIN AMANULLAH

body2021
JUDGMENT : The matter has been heard via video conferencing. 2. The matter has been heard out of turn on the basis of motion slip being filed by learned counsel for the petitioners yesterday, which was allowed. 3. Heard Mr. Udbhav, learned counsel for the petitioners and Mr. Kumar Ranjit Ranjan, learned Additional Public Prosecutor (hereinafter referred to as the ‘APP’) for the State. 4. Learned counsel for the petitioners submitted that he would be complying with all stamp report defects as soon as the same is permitted to be done once the normal functioning of the Court resumes. 5. The petitioners apprehend arrest in connection with Balia PS Case No. 219 of 2019 dated 15.06.2019, instituted under Sections 376/328/363/34 of the Indian Penal Code and 4 of the Protection of Children from Sexual Offences Act, 2012. 6. The allegation against the petitioners is that their father had raped the informant in their house and when she raised cry they had come along with their mother and another person and had threatened the informant and after a few days they had again called the informant to the house where she was raped and even video was shown to her and she was assaulted and threatened. Thereafter it is alleged that 0n 06.06.2019 she was forcibly put on a Scorpio and was made to inhale some chemical due to which she became unconscious and she was left on the platform at Begusarai Railway Station and some persons had taken her to the GRP which sent her to Town Thana from where she was sent to Alpawas Grih and from there she was taken home by her relatives on 07.06.2019. 7. Learned counsel for the petitioners submitted that the allegation is absolutely false and fabricated. It was submitted that first of all the age of the informant has been assessed by the Medical Board to be between 17-19 years, which clearly indicates that she was a major. Further, it was submitted that the very plain reading of the FIR would indicate that such incident is absolutely impractical and improbable and cannot be believed to have occurred. Further, it was submitted that the very plain reading of the FIR would indicate that such incident is absolutely impractical and improbable and cannot be believed to have occurred. It was submitted that the petitioners who are daughters of the person who is said to have committed rape would come and support the culprit and call the victim again and she would come without any demur to be subjected once again to rape and then there would be videography done and there would be blackmailing to make it viral, is totally a figment of imagination and is absolutely improbable. Learned counsel submitted that the allegation that the informant became familiar with the family as she was student of matriculation with the petitioner no. 2 in the year 2016, is also falsified as the petitioner no. 2 was a student of Central Board of Secondary Education, Delhi (CBSE) in the year 2019 and further, since CBSE is not the curriculum in Government School, it is clear that they never studied in any school together. Learned counsel submitted that even the allegation that she was found on the platform by the GRP who had handed her over to the Town Thana and was sent to Alpawas Grih is also falsified as there are no records with regard to the same and further that no statement is available either on 06.06.2019 or 07.06.2019 with the GRP or the Town Thana and only on 15.06.2019, the present case has been lodged. Learned counsel submitted that the real reason for this false case is that the father of the informant runs a mobile recharge shop in the vicinity of the sweetmeat shop of the father of the petitioners and he had been taking various amounts as loan from the father of the petitioners and when he was asked to return, this fabricated case has been cooked up. Learned counsel submitted that the petitioners are young girls aged 20 and 19 years and have no criminal antecedent and their innocence would also be established from the fact that after thorough investigation, the police had not sent them up for trial and had found the case to be false against them, but the Court differing the same has taken cognizance against the same. It was submitted that Raj Kumar Malakar, the main accused and father of the petitioners has been granted bail by a co-ordinate Bench by order dated 13.02.2020 in Cr. Misc. No. 5310 of 2020 whereas other three similarly situated co-accused, namely, Anjani Devin @ Anjani Kumari, Varsha Arya @ Varsha Kumari and Sunil Malakar @ Sunil Kumar Malakar have been granted anticipatory bail by a co-ordinate Bench by order dated 26.11.2019 in Cr. Misc. No. 75631 of 2019. 8. Learned APP submitted that the allegation is that they were party to the crime committed by the father. However, he fairly submitted that such type of allegation does not appear to be believable. 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in the event of arrest or surrender before the Court below within six weeks from today, the petitioners be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) each with two sureties of the like amount each to the satisfaction of the learned Special Judge (POCSO), Begusarai in Balia PS Case No. 219 of 2019, subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure, 1973 and further, (i) that one of the bailors shall be a close relative of the petitioners and (ii) that the petitioners shall cooperate with the Court/police/prosecution. Failure to cooperate shall lead to cancellation of their bail bonds. 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners, to the notice of the Court concerned, which shall take immediate action on the same after giving opportunity of hearing to the petitioners. 11. The application stands disposed off in the aforementioned terms.