- (1.) S. K. Verma, J. In this bail application, applicant Uzair alias Mahmood is involved in case crime No. 280 of 1994 under Sections 363/366-Ka/376/342/ 506, I. P. C. , Police Station Cantt, district Varanasi. Sri A. D. Giri, Senior Counsel has been heard on behalf of the applicant and Sri S. T. Siddiqui, Advocate representing the Central Bar Association, Varanasi has also been heard on behalf of the aforesaid Association. In public interest. It would be relevant to mention that though it was argued on behalf of the applicant that there is no public interest involved, however, Sri S. T. Siddiqui was permitted to make his submissions and has been heard at length.
(2.) ACCORDING to the first information report dated 18-5-1994 lodged at 3. 15 a. m. Smt. Madhuri Singh, complainant, mother of the victim was going alongwith her daughter Kajal Singh alias Sangita Singh aged about 16 years and his son Sunil Singh aged 10 years on 17-5-1994 on foot after returning from hispital in Banaras Hindu University at about 8. 00 p. m. when the appli cant alongwith another met them and cajoled them to accompany them because they were also going to Ballia where the complainant wanted to go. They took the complainant and the girl to hotel 'ideal Top' in the Cantt. Varanasi and offered to host a dinner. Thereafter, they locked the com plainant and her son in one room and took the girl in another room where they are said to have committed rape on her. Police came to the hotel on receiving information somehow and arrested the applicant and his associate. The case started taking twists and turns and received wide publicity in the newspapers. The students of Kashi Hindu Vishwavidyalaya and lawers forum, Social Service Forum and members of Mahila Congress raised slogans and sat on Dharana before the administration. The medical examination report conducted by the lady doctor on 18-5-1994 at about 1. 30 p. m. , i. e. after 14-15 hours indicated that the girl was aged about 17 years and that she did not have any mark of injury on the body externally and internally. Hymen show ed old tears, vagina admitted one finger easily and two fingers with a little difficulty. A Medical Board was also constituted which confirmed the report of the earlier lady doctor on 21-5-1994. Affidavits of the victim as well as her mother were filed on 23-5-1994 in the Sessions Court, Varanasi indicating that the applicants had prior acquaintance with the family of the victim and that on the date of occurrence they were taking food in the hotel when the police came and started interrogating them and misbehaving with them. On protest the police became enraged and took them to Police Station where Smt. Madhuri Singh was forced to sign on a report not dictated by her and the victim was forced during the course of the period up to 22-5-1994 after the arrest to make statement before the Court according to the prosecution story. Thereafter on 25-5-1994 a complaint was also filed by the victim against Senior Sub-Inspector of Police, K. P. Pandey, constable G. K. Pandey, Head Constable S. P. Dubey and two other police constables under Sections 500/509/ 342/384/504/506/218, I. P. C. in the Court of the Chief Judicial Magistrate, Varanasi in which statement of the victim and her mother were recroded under Sections 200 and 202, Cr. P. C. falsifying the entire prosecution version and accusing the police persons as aforesaid. The police also recorded the state ment of Sher Rai, Gram Pradhan, Bahadurpur, Ballia, the village where the complainant was allegedly going and where she allegedly lived. This statement of the Gram Pradhan mentions that the complainant, her daughers and members of her family were characterless and the complainant had been going alongwith the victim of this incident to Varanasi occasionally on the pretext that they were doing the job of Nurse in Varanasi. It has been argued on behalf of the applicant that the medical examination report of the girl does not support the prosecution version. It rather supports the story set up by the prosecutrix herself in her complaint. It has also been urged that the prosecutrix was a consenting party and even then no sexual intercourse was committed as found in the medical report. In fact, the victim as well as the applicants were forcibly taken away by the police because of annoyance during interrogation. Regarding the age of the girl also it has been argued that she is 16 years old according to her mother and 17 years old according to the medical evidence. It has also been urged that even if the victim is allegedly a call girl as per the alleged statement made by the Senior Police Officer published in the newspapers at Varanasi and is a consent ing party, no offence is made out.
(3.) IN reply it has been alleged that the statement under Sections 161 and 164, Cr. P. C. made by the victim are sufficient for the rejection of the bail. This contention is prima facie a very week plea in the face of the complaint lodged by the victim herself totally demolishing the prosecution version in support of which she has also made a statement under Sections 200 and 202, Cr. P. C. Assuming that these statements can only be used for corroboration or contradiction, the same is the position of the statements under Section 161 and Section 164, Cr. P. C. of the victim. It was also urged that filing of affidavits of the prosecution witnesses indicates tempering with evidence and should not be taken into account. For this proposition reliance has been placed on the decision in Jaswant Singh and others v. State of U. P. , 1994 JIC 219. It is true that there is a growing tendency now by the accused to procure affidavits but in the peculiar circumstances of this case where allegations are being made by the prosecutrix herself against the police personnel it would not be proper to ignore at least the statements under Sec tions 200 and 202, Cr. P. C. made by the prosecutrix in the complaint case. Reliance has been placed on the decision of the apex Court in Rafiq v. State of U. P. , 1983 SCCrr 308, where womens' personal dignity was found to be sacred component of humen rights. There cannot be any quarrel with this proposition but circumstances differ from case to case. In this particular case, the medical report and the complaint lodged by the prosecutrix against police personnel would prima facie indicate that the prosecution version does not have a ring of truth.;