SHIV SHANKER,J. - (1.) THIS is a bail application moved in case crime No. 30 of 2006 under Section 376 of Indian Penal Code, police station Dokati District Ballia.
(2.) HEARD the arguments advanced by the learned Counsel for the applicant as well as learned AGA and perused the record. Learned Counsel for the applicant has contended that Investigating Officer has recorded the statement of victim Tara Devi under Section 161 Cr.P.C. what happened with her by password or sign. She was also produced before the Magistrate concerned for recording her statement under Section 164 of Cr.P.C. expert of deaf mute was also summoned and her statement was started before the Magistrate. But after the best efforts, the teacher of deaf mute school could not understand the expression/language of the victim. Neither victim has given any password against the accused applicant for committing offence of rape with her. Therefore, how, the Investigating Officer has recorded her statement under Section 161 Cr.P.C. It is further submitted that she was medically examined by the woman doctor who has found that no mark of injury was seen on the private part of the victim. No bleeding discharged from the vagina. She was referred by the doctor to radiologist for ascertaining the age as well as sign of rape. Thereafter, radiologist examined the pathologist report and radiologist report of the victim, wherein she was found aged about of 16 years and in regard to rape, he submitted that no definite opinion about the rape can be given. Therefore, according to the medical report as well as statement of victim under Section 164 of Cr.P.C. no offence is made out against the applicant for committing offence of rape upon the victim. It is further contended by the learned Counsel for the applicant that the victim could not state anything before the Magistrate at the time of recording her statement under Section 161 of Cr.P.C. due to her deafness. How the First Information Report was lodged by the first informant against the applicant for committing offence of rape with her daughter and how he has given statement under Section 164 of Cr.P.C. in support of version of First Information Report. It is further contended that it was mentioned in the First Information Report that blood are coming till date on the date of lodging the FIR from the private part of his daughter but medical report has declined from the version of the prosecution. Therefore, whole prosecution story set up by the first informant is created suspicious. It is further contended that First Information Report has been lodged with delay of 3 days but no sufficient reason regarding the delay has been given in First Information Report. It creates suspicion regarding the truthfulness of it and same was lodged after consulting and thought by legal mind against the applicant only in lieu of village partibandi. It is contended that he has surrendered in the Court in this case. Therefore, no identification parade was made by the prosecution. In this circumstances, victim could not identify the applicant. Therefore, identification parade was not held. It is further contended that this occurrence has allegedly happens in open place while more so the public as well as other persons of locality can look the incident but there is no eye witness of the incident. No person of the locality has supported the version of the prosecution. In such circumstances, the bail application of the present applicant is liable to be allowed.
(3.) ON the other hand, learned AGA has submitted that it is a case of rape with a deaf -mute girl supported by the medical evidence.;