Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26936 of 2019 Applicant :- Kedar Opposite Party :- State Of U.P.
Counsel for Applicant :- Kamlesh Kumar Dwivedi Counsel for Opposite Party :- G.A.,Devi Dayal
Hon'ble Rahul Chaturvedi,J.
Counter affidavit filed by learned A.G.A. as well as learned counsel for the informant today in the Court is taken on record. Learned counsel for the applicant submits that he does not want to file any rejoinder affidavit and wants to argue the case on merit straightway.
Heard learned counsel for the applicant, learned counsel for the informant as well as learned A.G.A. and perused the record.
By means of this application, the applicant who is involved in case crime no.108 of 2019, under Section 376, 506, 323 IPC, Police Station-Kheragarh, District-Agra is seeking enlargement on bail during the trial.
Learned counsel for the applicant has pressed his argument on four aspects of the issue which is as follows :-
(i) The alleged FIR lodged by the victim herself. She has delayed it by almost five days and there is no plausible justification from her ;
(ii) The story set up by the prosecution is contradictory and not at all confident generating ;
(iii) She is consenting party keeping in view the call details ;
(iv) She herself is major and is a married woman and it is not possible for an elderly lady to be raped by the applicant.
Let us take out these above mentioned points one by one for consideration :
So far as first point is concerned, it is true that Ms. Vimlesh(victim) has herself lodged the FIR on 04.06.2019 for the incident said to have been taken place on 30.05.2019 registered as case crime no.108 of 2019 against the applicant with the allegation that the victim is a wife of Khem Singh and mother of two small kids. On fateful day i.e on 30.05.2019 around 8:00 p.m., she went to attend call of nature whereby she was intercepted by the applicant-Kedar and he over-powered her and sexually molested her and outraged her modesty. On her scream, one Darshan Singh s/o Nihal Singh came to rescue her but the applicant by that time sneaked away from the spot.
In her 161 Cr.P.C. statement, victim has given explanation that she as well as the applicant belong to the rural background, waited for a time that the applicant would approach them, seek pardon for their misdeed but when none of them has turned up, despite of the sufficient time, then she lodged the FIR. In the rural areas, it is still social taboo and stigma that such type of cases are not made public easily and lodging of the FIR was the last resort for the victim because it carry ill-name and fame to all the concerned especially for a lady.
The second limb of the argument which was canvassed by learned counsel for the applicant is that the story set up by the victim is self-contradictory and not at all confident generating.
I have clearly perused the story set up in the FIR and statement given to the doctor at the time of her medical examination and as well as her 164 Cr.P.C. statement. Cumulative effect of all the four statements is clearly indicative of the fact that at the time and date of incident, she was over-powered by the applicant and the applicant has thrusted upon her and outraged her modesty forcibly. Though, there are certain minor discrepancies but fact remains that from reading of all the four statements, it has not been come out that she was in consensual relationship with the applicant.
The third issue of the argument is that she is the consenting party keeping in view the call details. Learned counsel for the applicant has strenuously drawn the attention of the Court to Annexure-6 to the application that after taking the call detail report from the surveillance office. Telephone number of the applicant is 8449753*** whereas the telephone number used by the victim was 6398596***. The telephone number allegedly used by the victim is in the name of her husband-Khem Singh. It is also culled out that her husband-Khem Singh and the applicant were close friends and it cannot necessarily be gathered that the call details collected by the police during investigation are necessary call made by the victim alone and thus, this point too could not help to the applicant.
It is also essential to point out, that in order to over-power her, her arms were twisted, consequently, the bangles were broken and police has recovered the broken bangles from the spot. All these facts clearly indicative of the fact that she was over- powered and sexual lust of the applicant was satisfied which resulted into lodging of the FIR by the victim herself.
Last submission is that the applicant and victim has got tender relationship prior to her marriage. Even though, he has got right to maintain the "so-called" relationship, if at all, even after her marriage. She is now a married woman, mother of two kids, happily residing with her family and applicant is not permitted to ravish a lady's honour and dignity.
I am of the considered opinion that this is not a case whereby the applicant is in sympathy to perpetrate heinous offence to commit rape upon woman who is a mother of small kids.
Keeping in view the complicity of the applicant in the commission of crime and submissions of the learned counsel for the parties, I am of the view that the applicant has not made out a fit case for bail. Accordingly, the present application stands rejected.
However, learned trial Court is directed to gear up the matter and conclude the trial within a period of one and half years from the date of production of certified copy of this order, if the applicant brought to its notice about the instant direction.
Order Date :- 26.7.2019 Sumit S