- (1.) SHIV Shanker, J. Heard learned Counsel for the applicants, learned A. G. A. and perused the material on record.
(2.) IT is contended by learned Counsel for the applicants that the statement of eye-witness Mogia was recorded by the Investigating Officer, wherein she has stated that she has not seen the offence of rape with the prosecutrix committed by the present applicants. IT is further contended that Smt. Sumitra, mother in law of prosecutrix has admitted the above facts in her statement under Section 161 Cr. P. C. There was litigation going on regarding land between both the parties, Therefore, the present applicant has been implicated falsely due to this enmity. IT is further contended that no opinion of rape has been given by the doctor. The prosecutrix is a married woman aged about 34 years, having three children and the applicant is aged about 22 years. In such circumstances, the offence of rape cannot be done. Learned A. G. A. has opposed the prayer for bail and urged that it is case of gang rape, The boy of 22 years can also commit offence of rape with a married woman aged 34 years and in this connection there is no bar. Therefore, the bail application of present applicant has no force. After considering the submissions made by learned Counsel appearing on behalf of applicant as well as learned A. G. A. , admittedly the applicant does not belong to Scheduled Caste community while the prosecutrix belongs to Scheduled Caste community and lived in the same village. It has been specifically stated in the F. I. R. as well as statement of prosecutrix Smt. Shanti Devi that she had gone to cut grass and at the same time, the present applicant alongwith Ramji Mishra reached there. Thereafter she was caught hold by them. Later on both the hands of prosecutrix were caught hold by the present applicants and co- accused Ramji Mishra committed rape upon her. Thereafter co- accused Ramji Mishra caught hold both the hands of prosecutrix. Thereafter, the present applicant committed rape with her without her consent and this rape has been committed on the point of country made pistol. There will be no effect of absence of injury either on her body on private parts. It is liable to be deemed that gang rape was committed by the present applicant on the point of country made pistol and she cannot be consenting party and no one can be implicated by making false case of rape due to enmity. The present applicant may be implicated by making false case by theft, beating and robbery etc.
(3.) THEREFORE, I do not find any force in the arguments advanced by learned Counsel appearing on behalf of applicant and prima facie offence of gang rape is made out. In such circumstances, the bail application of the present applicant is not liable to be allowed. Consequently, the bail application of the present applicant is hereby rejected, Application rejected. .;