Court No. - 74
Case :- CRIMINAL APPEAL No. - 969 of 2021 Appellant :- Gulshan Rajbhar Respondent :- State of U.P. and Another Counsel for Appellant :- Chandra Prakash Misra,Sushil Kumar Mishra Counsel for Respondent :- G.A.,K.K.Rao,Mukul Kumar Mishra
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant, learned counsel for the respondent no.2 and learned AGA for the State and perused the record.
This appeal has been filed by appellant Gulshan Rajbhar against the impugned order dated 15.01.2021 passed by learned Special Judge, SC/ST (Prevention of atrocities) Act, Kushinagar at Padrauna passed in Bail Application No. 13 of 2021(Gulshan Rajbhar vs. State of U.P.), arising out of Case Crime No. 423 of 2020, under Sections 376D, 504 I.P.C. and Section 3(2) V of SC/ST Act, P.S. Kaptanganj, District Kushinagar by which bail plea of appellant has been rejected. Aggrieved by the rejection order this appeal has been filed.
The FIR version is that the incident took place on 7.12.2020 at 9:00 pm about which in the midnight of 7-8.12.2020 the FIR has been lodged with the allegation that the named accused and two more persons, when the victim had gone to ease herself in the field caught her and committed rape on her. All the three accused persons committed rape on her.
The submission of learned counsel for the appellant is that the accused appellant is not named in the FIR and his name appeared for the first time in her statement under Section 164 Cr.P.C. and she did not disclose his name even in her statement under Section 161 Cr.P.C. given to the I.O. Further submission is that on 18.12.2020 in her second statement given to the I.O. she took the name of the appellant and, thereafter, she stated his name in her statement under Section 164 Cr.P.C. given to the learned Magistrate. It has been further submitted that mentioning his name is afterthought and he has been falsely implicated in this case. It has been further submitted that the medical report does not support the allegation of rape. The learned court below did not consider this aspect and illegally rejected the bail application of the appellant, which is not sustainable under law and is liable to be set aside. Further submission is that there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned A.G.A. and learned counsel for the respondent no.2 have opposed and have submitted that the learned Special Judge has considered all the aspects and finding the statement of the victim to be credible rejected the bail application. Further submission is that in her statement given to the I.O. the victim had stated that she identified all the three accused persons but she did not know the name of all the accused persons except accused Rinku whose name specifically finds mentioned along with two other accused persons in the FIR. It has also been submitted that in such kind of cases, it is not necessary that the medical report must show the sign of rape being committed on the victim. It has been submitted that the appeal has got no force as it is a case of gang rape and, therefore, is liable to be dismissed.
Considered the submission of both the sides. The statement of the victim shows that she identified the three accused persons but she had no knowledge about the name of the appellant and other co-accused except accused Rinku Rajbhar. The statement of the victim was recorded under Section 164 Cr.P.C. after eight days from the date when the FIR was lodged and in that statement she has specifically stated the role of the accused appellant by name. It shows that subsequently she might have got knowledge of the name of the appellant and, therefore, she stated so and it does not appear that there is any question of concoction not it can be said that taking the name of the appellant is an afterthought from the side of the victim. It is a case of gang rape and three persons have committed the offence against the victim. No other case has been put-forwarded from the side of the appellant. There is no cogent reason shown by the appellant why the victim is falsely implicated him. The cases of gang rape is considered on a different footing. Three persons had committed rape and this fact has been stated by the victim to the police and before the Magistrate, the victim belongs to scheduled caste community and as such the offence become serious and heinous. It appears that the learned Special Judge has considered all the aspects of the matter and has passed the impugned order, I find no illegality in the impugned order nor there is infirmity in it, therefore, the appeal has got no force and is liable to be dismissed.
The appeal is accordingly, dismissed.
The learned Special Judge however, is directed expeditiously dispose of the trial.
Order Date :- 27.7.2021/Mini