- (1.) HEARD Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Subhash Gosain, learned counsel for the applicant, Sri P.K. Singh, Sri Suraj Singh, learned counsel for the complainant and learned A.G.A. for the State.
(2.) IT has been contended by the learned counsel for the applicant that a Non Cognizable Report No. 70 of 2012 was lodged at police station Kapsethi, district Varanasi lodged by one Samarjeet Singh father of the prosecutrix on 21.5.2012 at 18:15 p.m. under Section 498 I.P.C. with respect to an incident alleged to have taken place on 20.5.2012 against Raj Kumar Singh and Amit Kumar Singh, who are the real brothers sons of Daroga Singh regarding that the accused Raj Kumar Singh had taken away her married daughter with the assistance of his real brother Amit Kumar Singh. Thereafter on 15.6.2012 her daughter was dropped at her house by the said accused persons and on 16.6.2012, the N.C.R. was converted in First Information Report which was registered as Case Crime No. 76 of 2012 under Sections 498, 366, 376 (2) (Chha), 493, 342, I.P.C. IT has further been submitted that the victim is a major girl aged about 19 years as per the supplementary report which has been annexed as annexure-4 to bail application. IT is urged that on 23.6.2012, the statement of the victim was recorded under Section 164 Cr.P.C. in which the name of the applicant, who is the cousin brother co-accused Raj Kumar, who had taken the victim along with his real brother Amit Kumar on 20.5.2012, has come into light. The victim in her statement recorded under Section 164 Cr.P.C. has stated that the applicant along with other co-accused persons, namely, Raj Kumar, Narendra, Amit and Jai had taken the victim forcibly on 20.5.2012 at about 2-3 a.m. in the night when when she was sleeping at the door step of her house in a red colour vehicle in which mother of accused Raj Kumar, namely, Manorma and Aunt, namely, Meena, co- accused Amit and Raj Kumar were sitting took her to Allahabad and they kept her in a Hotel where co-accused Raj Kumar, Amit and Jai and the applicant had committed rape on her. Thereafter the victim was taken to district Surat in Gujrat where she was confined for three days in a room and applicant along with accused Amit, Narendra committed rape on her. Co- accused Raj Kumar did not go to Surat. Thereafter the victim was taken by the applicant and co-accused Amit, and Jai to Punjab where she stayed for some days and there also the three accused including the applicant had committed rape on her. In Punjab, co-accused Raj Kumar and Dular also came where all the accused persons along with the applicant committed rape on her. Then, they took her on a train and brought her to Varanasi and on the railway station in a red colour vehicle in which the mother and aunt, namely, Manorma and Meena of co-accused Raj Kumar and Amit were sitting brought her to Chandauli and kept her there for two days and thereafter in the night left her at her house. Learned counsel for the applicant alleged that from a perusal of the statement of the victim recorded under Section 164 Cr.P.C, it is apparent that the victim accompanied the accused persons at various places and she did not raise any alarm for her rescue. It is further submitted that it appears that the victim had developed some relations with co-accused Raj Kumar with whom she had gone away from her house voluntarily on her own sweet will and after remaining with him for about one month, she returned back to her house and under the pressure of her parents she has falsely deposed against the applicant, who is the cousin brother of co-accused Raj Kumar though the allegations leveled against him are absolutely false, frivolous and baseless. Moreover, learned counsel for the applicant further pointed out that the prosecutrix under the influence of her parents had leveled false allegations against the applicant and other family members of co-accused Raj Kumar and she has not left even the mother and aunt of co-accused Raj Kumar. She has made the allegation of rape against the real brother accused Raj Kumar, namely, Amit and uncle of Raj Kumar, namely, Ram Dular and she has falsely roped all the family members at the behest of her father Samarjeet Singh. It was further submitted that medical examination report of the prosecutrix does not support the allegations made by her in her statement recorded under Section 164 Cr.P.C. or the statement made by her under Section 161 Cr.P.C. recorded on 16.6.2012 where she has leveled similar allegations against all the accused persons including the applicant. Learned counsel for the applicant further submitted that it is highly improbable and beyond imagination that the real brother and uncle of co- accused Raj Kumar with whom the prosecutrix had fled away from her parent's house voluntarily would indulge in such a heinous crime together. Moreover, the medical report of prosecutrix shows that there is no mark of injury seen on her private part, hymen was old torn and vagina admits two fingers easily. The doctor opined that no definite opinion of rape can be given.
(3.) LEARNED counsel for the applicant further contended that the applicant has only been falsely implicated in the present case by the prosecutrix at the instance of her father Samarjeet only because the applicant is the cousin brother of co-accused Raj Kumar though he had no concern with the present case nor he accompanied co-accused Raj Kumar and his parents anywhere. The applicant in is jail since 27.6.2012. On the other hand, learned counsel for the complainant Sri P.K. Singh has vehemently opposed the prayer for bail and has stated that when the prosecutrix returned to her house on 15.6.2012, her medical as well as her statement was recorded by the Investigating Officer under Section 161 Cr.P.C. on 16.6.2012 and she immediately, named the applicant along with co-accused persons, who had forcibly taken away from her house and had committed gang rape on her. He has further relied upon a judgment of the Hon'ble Apex Court in the case of Dinesh Buddha v. State of Rajasthan reported in 2006-LAWS (SC)-2-49 para-6 of the judgment as well as 2005- LAWS (SC)-10-107 State of M.P. v. Bala @ Balaram in which he has drawn the attention of the Court towards para-9 of the said judgment.;