Decided on July 27,2012

ARVIND Appellant


Hon'ble U.C. Dhyani, J. - (1.) HEARD learned counsel for the parties. Applicant Arvind, who is in jail in connection with Crime No. 28 of 2012, relating to offence punishable under Section 376 of IPC, police station Clement Town, District Dehradun has sought his release on bail. This is second bail application moved on behalf of the accused -applicant. The first bail application was dismissed as withdrawn vide this Court's order dated 22.05.2012.
(2.) AN FIR was lodged by the prosecutrix Shalu Tiwari against accused -applicant Arvind on 29.04.2012 at police station Clement Town regarding offence punishable under Section 376 of IPC. According to the complainant, when she came out from the bathroom on 29.04.2012, accused -applicant Arvind came there at 06:00 P.M., who caught hold of her hands, gagged her mouth, took her to his room and committed rape with her. Whereas the occurrence took place on 29.04.2012 at 06:00 P.M., the FIR was lodged the same day at 07:45 P.M. Learned counsel for the accused -applicant argued that the applicant has been falsely implicated in the case because certain arrears of rent are due to the landlord against tenant. Prosecutrix's parents are residing there as tenant and accused -applicant Arvind is the son of the landlord, whose son is alleged to have committed rape with prosecutrix. Learned counsel submitted that the FIR has been lodged out of this vengeance and, the medical officer, who examined the victim has opined that there is no evidence of recent sexual intercourse. According to supplementary report the age of victim is more than 18 years. Learned counsel also submitted that there is contradiction in the statement of the prosecutrix recorded under Section 161 and 164 of Cr.P.C., in as much as, whereas she said in the former statement that the rape was committed in the room of applicant, in her statement under section 164 of Cr.P.C. she has said that the rape was committed in the room of his sister. Prosecution story was assailed on certain other grounds which have been mentioned in the application for seeking bail.
(3.) LEARNED Prosecutor, while opposing the bail, has drawn the attention of this court towards the Explanation appended to Section 375 of IPC, wherein it is provided that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. He also argued that if the incident was untrue, the prosecutrix, an unmarried young girl aged about 18 years, would not have allowed herself the stigma of being called the victim of rape. No girl would prefer to carry such stigma throughout her life without rhyme or reason. Learned Prosecutor also pointed out that charge sheet has been submitted against accused -applicant by the Investigating Officer. Considering the gravity of the offence and keeping in view the facts and circumstances of the case as enumerated above, this Court is of the opinion that the accused -applicant is not entitled to bail at this stage. The second bail application is accordingly dismissed.;

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