JUDGMENT Amar Saran, J.
1. Heard Sri G.S. Chaturvedi, learned Senior Advocate appearing for the applicant and learned AGA for the State, and perused the record.
2. The applicant, Zubair, is involved in case Crime No. 241 of 2003, under Sections 452, 376, 506, 120B, 201 IPC and Section 7 Criminal law Amendment Act, P.S. Chhapar, District Muzaffar Nagar.
3. The allegation in the FIR is that at about 11.30am on 9.10.2003 there was some incident between Devendra, the brother of the informant, Ravindra, and Km. Roshan, the daughter of the landlord Israel. On account of that incident, the applicant, Zuber, a relation of Zuber, Mahtab and two or three others entered Ravindra's house, caught hold of his 15 years old sister and took her forcibly into Israel's house, where they committed gang rape on the girl. The informant, his mother, Rajveeri, and many other people of the village arrived who witnessed the incident. Thereafter, the accused left the place issuing threats. The girl was lying unconscious at the spot. At 7.50pm on 9.10.2003 the external medical examination of the girl revealed that she had no external mark of injury but she was unconscious and her body was cold. The girl was re-examined at 5pm on 13.10.2003 at Women's Hospital by three doctors, who noted that she was fully conscious. At the time of medical examination she had stated that on the previous Thursday, three persons had dragged her and committed rape on her. As she started bleeding she was taken for medical care to a private clinic with her mother and stitching of her private parts was done there. The internal examination revealed that her hymen was torn admitting only one finger and with slight oozing present during the examination. One stitch of catguts was seen on the vaginal region which also showed redness.
4. Principally, three contentions have been raised by Sri G.S. Chaturvedi, learned Senior Advocate, on behalf of the applicant. One, that when the incident is said to have taken place at 11.30 a.m. on 9.10.2003, the detailed internal medical examination of the girl only at 5pm on 13.10.2003 after 4 days casts a doubt on its reliability. Two, such an act of gang rape could not have taken place in such an open manner in presence of so many witnesses in the house, and three, that the co-accused Mukhtar Rahi, Riyasat Intezar and Hifzur Rahman have been granted bail by different benches of this court and that the applicant is entitled to bail on the ground of parity.
5. In my opinion, not much significance can be attached to the delayed internal examination of the girl. Admittedly, her external injuries were examined at the District Hospital, Muzaffar Nagar, on the same date, i.e. at 7.50am on 9.10.2003. At that time, she was found unconscious and her body was cold. Also, she has mentioned in her statement under Section 161 Cr.P.C. that after 3 accused persons, Zuber, Mahtab and Hijju committed rape. Co-accused, Shamsad, also started committing rape on her. She became unconscious and, thereafter, she was taken to the hospital where she was given stitches. These steps were taken prior to her detailed internal medical examination Also, there can be a little delay in the internal medical examination of girls because of the shame and humiliation suffered by the girl and her family members. Hence the internal medical examination of the girl on 13.10.2003, i.e. after four days of the incident and, in this light, as, such, it will not affect the veracity or reliability of the prosecution version.
6. Likewise, the argument that it was not probable that the gang rape on her could have been committed in such an open manner in the presence of the witnesses, also does not hold water as the medical examination report shows that the girl had even become unconscious after the incident and it was even necessary to giver her stitches on her private parts. That lends assurance to the claim that such an incident had taken place. Moreover, such an act of bestial violence was possible when the accused side might have retaliated on being aggrieved on account of a girl of their family being teased by the brother of the victim and other persons might have felt too afraid to intervene when such a heinous crime was being perpetrated by the culprits. It is specifically mentioned in the statement of the girl under Section 161 Cr.P.C. that the accused forcibly took her to the other kutchha house of Israel where this crime was committed on her.
7. So far as the orders granting bail to the other accused persons are concerned, Mukhtar Rahi was granted bail by Hon. M.P. Singh, J. on 30.1.2004 on the ground that he was not named in the FIR and he was an old person of 65 years and because the gang rape had been committed by the other accused, namely, Zuber, Kukhtar, Anees Master, Chijju and Shamsad. Thereafter, bail was granted to Riyasat Intezar by Hon. S.S. Kulshrestha, J. on 25.2.2004 on the ground that their names figured for the first time in the statement of the prosecutrix that they were the persons who abducted the victim but their names did not figure in the written report and also because Mukhtar Rahi, whose case was identical, had been granted bail earlier. So far as the bail granted to Hijju Rahman is concerned, who was granted bail by Hon. R.S. Tripathi, J., the date of grant of bail has not been mentioned and the bail order has not been annexed with the application.
8. So far as the applicant is concerned, he was the main person who is said to have committed rape on the girl and is named consistently throughout, along with the accused Mahtab, in the FIR and the statement under Section 161 Cr.P.C. as one of the named persons who have actually committed rape on that girl, and because the role of actually raping the girl was not assigned to Mukhtar Rahi, Riyasat and Intezar in the FIR and in the statement of the girl.
9. Moreover, it may be pointed out that there is no absolute hidebound rule that bail must necessarily be granted to the co-accused where another co-accused has been granted bail irrespective of the gravity of the offence. In Spl. Leave Petition No. 4059 of 2000: Rakesh Kumar Pandey v. Munni Singh @ Mata Bux Singh and Anr., decided on 12.3.2001, the apex court strongly denounced the order of the High Court granting bail to the co-accused on the ground of parity in a heinous offence and while cancelling the bail granted by the High Court it observed that:
"The High Court on being moved, has considered the application for bail and without bearing in mind the relevant materials on record as well as the gravity of offence released the accused respondents on bail, since the co-accused, who had been ascribed similar role, had been granted bail earlier."
10. The apex court in the aforesaid law report has further observed that:
"Suffice it to say that for a serious charge where three murders have been committed in broad day light, the high Court has not applied its mind to the relevant materials, and merely because some of the co-accused, whom similar role has been ascribed, have been released on bail earlier, have granted bail to the present accused respondents. It is true that State normally should have moved this Court against the order in question, but at the same time the power of this Court cannot be fettered merely because the State has not moved, particularly in a case like this, where our conscience is totally shocked to see the manner in which the High Court has exercised its power for release on bail of the accused respondents. We are not expressing any opinion on the merits of the matter, as it may prejudice the accused in trial. But we have no doubt in our mind that the impugned order passed by the High Court suffers from gross illegality and is an order on total non-application of mind and the judgment of this Court referred to earlier analyzing the provisions of Sub-section (2) of Section 439 cannot be of any use as we are not exercising power under Sub-section (2) of Section 439 Cr.P.C."
11. In view of the aforesaid discussion, there is no force in this bail application which is hereby rejected.
12. It is, however, made clear that the observations in this order have been made only for the purpose of deciding this bail application and should not in any manner affect the appreciation of the evidences by the trial court at the trial of the case.