- (1.) SHIV Shanker, J. This is first bail application moved on behalf of applicant in case Crime No. 139 of 2006, under Section 376 IPC, Police Station Magora, District Mathura.
(2.) BRIEFLY, the prosecution case, according to the First Information Report, is that first informant Satyavir son of Ram Prasad lodged a First Information Report on 4-11-2006 at 1. 10 a. m. against two accused, namely, Duli Chandra and Banwari alias Banai Singh for the offence under Section 376 IPC alleging that when his wife Smt. Maya was returning on 3-11-2006 in the night at about 8. 00 p. m. after serving meal to him in the agriculture field and reached near the field of Yuvraj Singh, both the accused persons met her and they forcibly fallen down her and committed rape upon her one by one. She raised an alarm upon which he came there from his field. Thereafter, both the accused ran away from the scene of occurrence. Due to night and fear, he did not lodge the F. I. R. at the concerned police station on the same night but lodged it on the very next day. Heard the arguments of the learned Counsel for the parties and perused the whole records. It is contended by the learned Counsel for the applicant that present applicant and co-accused Duli Chandra are son and nephew respectively of the victim and in such circumstances, both cannot commit the offence of rape upon the prosecutrix. It is further contended that the prosecutrix is a married woman and no injury was found on her person as well as on her private part according to her medical examination report. Therefore, she may be a consenting party. It is further contended that there was dispute regarding the field between both the parties. Therefore, the applicant has been falsely implicated in this case.
(3.) ON the other hand, learned A. G. A. has submitted that it is a case of gang rape. After considering the submissions made on behalf of both the parties, it appears that it is a case of gang rape according to the statement of victim Smt. Maya, who is the wife of first informant. She has specifically stated in her statements recorded under Sections 161 and 164 Cr. P. C. that the present applicant alongwith co-accused Duli Chandra had committed rape upon her simultaneously without consent. It is worthwhile to mention here that no woman can give consent for sexual intercourse at the same moment for more than one. A woman cannot give consent for sexual intercourse of two persons. There is no argument of the learned Counsel for the applicant regarding her suspicious character. According to the statement of prosecutrix, it is the prima facie case of gang rape. It has been provided in Sections 114- A of the Indian Evidence Act, 1872 as under: "114-A. Presumption as to absence of consent in certain prosecution for rape.-In a prosecution for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent ). '';