Vijay Kumar Verma - (1.) HEARD Sri V. S. Parmar, advocate appearing for the applicant, Sri Dinesh Kumar Gupta, learned counsel for the complainant and A.G.A. for the State and also perused the record.
(2.) AN F.I.R. was lodged on 27.6.2007 by the complainant Chottey Lal alias Babloo at P. S. Khanna, District Hamirpur, where a case under Sections 363, 366, 376 and 506, I.P.C. and Section 3 (1) (xii) of S.C./S.T. Act was registered against Parasram, Pankaj, Dilip, Ram Kishore, Dhiru alias Dhiraj and Harishankar. The allegations made in the F.I.R. in brief, are that on 1.2.2007 at about 4.00 p.m. the prosecutrix (name not disclosed as per the direction of the Hon'ble Apex Court), daughter of the complainant, was going to Khanna market for purchasing goods. She was caught by the accused Parasram, Pankaj, Dilip, Ram Kishore and one other person and they all committed rape on her after keeping her in the house of Prem Narayan alias Lal Vishwakarma. Thereafter, she was sold to Hari Shankar Vishwakarma (applicant herein), who also committed rape with her. After that she was sold to Banda Vishwakarma, aged about 65 years from where she was recovered by the police. It is submitted by the learned counsel for the applicant that in her statement recorded under Section 161, Cr. P.C., prosecutrix did not support the case of the prosecution and from that statement, it transpires that she was consenting party and had married with the applicant Hari Shanker Vishwakarma. Next submission is that the statement of prosecutrix was recorded before S.D.M. and in that statement also, she has not supported the case of the prosecution. Regarding the statement recorded under Section 164, Cr. P.C. of the prosecutrix, it is submitted by learned counsel that from that statement also, it appears that the prosecutrix was consenting party in living with the applicant. It is further submitted that other witnesses have not supported the case of the prosecution.
(3.) A.G.A. and learned counsel for the complainant have opposed the bail application stating that prosecutrix has fully supported the case of the prosecution in her statement recorded under Section 164, Cr. P.C. and hence, in this heinous crime of gang rape, applicant should not be granted bail. I have carefully gone through the statement of the prosecutrix recorded under Section 164, Cr. P.C. Although the prosecutrix did not support the case of the prosecution in her statement recorded under Section 161, Cr. P.C., but when her statement was recorded before the Magistrate under Section 164, Cr. P.C., she has fully supported the case of the prosecution. Therefore, without expressing any opinion on merit of the case, in this heinous anti social crime of gang rape and selling the prosecutrix from one person to other person, the applicant does not deserve bail.;