- (1.) While admitting this criminal appeal for final hearing, the lower court record was called for and an observation was made that the prayer for bail of the appellant shall be considered after receipt of the LCR.
(2.) Since the LCR has been received, Mr. Deo, learned counsel appearing for the appellant prays for grant of bail to the appellant on the ground that the court below has convicted this appellant under Section 376 IPC and sentenced to undergo RI for seven years and also convicted under Section 452 IPC and sentenced to undergo RI for three years with fine of Rs. 25,000/- and 5,000/- respectively with default clause but without any evidence on record, which would appear from the evidence of prosecution witnesses that a Panchayati was held and in the said Panchayati, the question was raised by the accused for examination of the pregnancy by DNA test but it appears from the evidence of the DW1 at paragraph 2 that the cost of the DNA test was never deposited by the accused, so the DNA test was never conducted. It was also submitted by Mr. Deo that even the appellant in his statement recorded under Section 313 Cr.P.C, has denied the allegation of rape and also stated that no step was taken by Panchayat for the DNA test and it was the duty of the prosecution to get the DNA test conducted but it was never done. It was also submitted that in the said Panchayti, there was resistance from the prosecutrix side. Learned counsel further relying upon FIR and different paragraphs of the evidence of PW 2 and 3 submitted that there is nothing in the evidence to show the complicity of this appellant in the alleged offence except the testimony of the victim girl -PW2 and as this appellant remained in custody since 09.07.2013, he deserves to be released on bail.
(3.) Mr. Verma, learned counsel representing the State relying upon the evidence of PW-2, the victim girl submitted that the victim girl has fully corroborated the entire allegation made in the FIR. It was further submitted that no such petition was ever filed at the instance of the appellant before the court for conducting DNA test and the doctorPW5, who examined the girl, had also found the foetus in the womb of the girl which was of 35 weeks old.;