G. M. LODHA, J. - (1.) THIS application under sec. 439 Cr. P. C. has been filed by one Chiman who has been arrested by the police authorities of Ajmer being required in case No. 93 of 1978, U/s. 376, 457, 363, 171 and 419 I. P. C.
(2.) THE facts, in brief, giving rise to this case are that one Noor Banoo filed the report in police on 2-10-78. She alleged that she is residing in Mohalla Jhalra in Ajmer along with her brothers and mother. While they were sleeping in the night, two persons came, one of whom was in Khaki Dress and forcibly opened the door by giving a push saying that they were police people. THEy caught hold of his brother and gave him beating and then the second brother was caught in the same manner. It was then her turn and she was forcibly dragged out of the house. When her mother tried to resist, they said that they are taking her to police chowki. She was then dragged and later on taken out from Mohalla where one more person having police dress met them along with the boy. THEse four accused persons which includes the petitioner than detained her separately. After giving details of the incident, she alleged that she was ultimately taken to a shop of icecream. In the night at about 2 or 2 30, these accused persons ravished her one after the other after making her naked forcibly. One of them committed sexual intercourse twice. One in the beginning and also after the other three had their turn. She cried but she was threatened that she would be killed and, therefore, she could not provide much resistance. It is also alleged that at the time she tried to cry, one of the accused persons forcibly put a piece of cloth in her mouth. On the above allegations, accused Chiman being one of the four accused persons, has been arrested. Mst. Noora after recording of the first information, was interrogated and these accused persons were shown to her on which she said that accused Kishan, Chiman, Harak Bahadur and Dungar Singh a!ia3 Surat Singh were the persons who committed rape on her. She also described that first of all Kishan and thereafter Soorat Singh, then Harak Bahadur and then Chiman committed sexual intercourse with her forcibly. The police has registered a case under secs. 457, 363, 376, 171, and 419 I. P. C. Since the bail application has been rejected by the Sessions Judge, Ajmer, the petitioner has moved this application here. Mr. Motwani appearing for the petitioner has urged that the story as given in the FIR is improbable and though it may be a case of immoral traffic, it cannot be a case of rape. He submitted a copy of the medical report to substantiate his allegation that the girl is not minor as she is in between 18 to 19 years of age and further that no marks of violence or injury were found on her person and the private parts. Mr. Motwani submits that in all probabilities, it appears that the woman might have voluntarily gone with the accused persons but when some police constable detected while coming back, she has come out with this false concocted and tell tale story of rape. Mr. Motwani also submits that the accused is about 17 years of age and this should be special consideration for granting the bail in this case.
(3.) MR. Richpal Singh, learned public prosecutor has vehemently opposed the bail application. He submits that this is a case of heinous type where four accused have ravished one helpless girl, one after the other. MR. Singh submits that the girl is a Bengali refugee and the offence assumes much serious dimensions when the poverty of the girl or her family and the fact that she was a refugee, is being exploited for satisfying the carnal lust by four accused persons at a time. He placed reliance upon Rao Harnarain vs. The State (1) in which Justice Tek Chand while considering the question of bail in what MR. Singh terms, is an analogous case, deprecated the practice of granting bail by lower courts in such cases. A submission was made in that case by the counsel for the accused that in that rape case the girl was a consenting party who surrendered her body to the three persons willingly and with the approval and at the bidding of her husband. The girl in that case was found to be 19 years of age and was married one and it was submitted by Mr. Chawla in that case that Rao Harnarain Singh and his guests were having a good time and had gathered there for a little bit of gaiety and enjoyment. Repelling these arguments Mr. Justice Tek Chand observed: - "i cannot accept the suggestion of S. Bhagat Singh Chawla that Kalu Ram, the husband of the girl, was a pander who had willingly agreed to minister to the baser passions of his clients. I cannot even persuade myself to the view that his wife was a dissolute young woman who willingly lent her body to her ravishers to gratify her own lustful propensities. " Rejecting the theory of consent by a helpless woman placed as she was in that case, Justice Tekchand observed. "a mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent'* as under-stood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and morak power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. " Mr. Richpal Singh on the basis of above observations of Justice Tek Chand, submits that the instant case is one of those cases where the helpless lady was forced to submit to sexual intercourse by four persons. One after the other who had proclaimed while forcibly opening the house that they were police walas and some of whom were having the Khaki dress. He submits that this is a heinous type of social offence and the fact that no marks of violence are found on her person, cannot negative the theory of allegation of use of force at this stage. Mr. Singh has also submitted that the case would have been different if there would have been one accused person and story as revealed by the girl of taking her from the house after pretending to be policewalas by the accused would not have been there. ;