The Allahabad High Court has granted bail to an accused giving the benefit of non-availability of evidence in the case while observing that nothing can be said with certainty about the occurrence of rape without medical examination even though the victim has stated that she was raped.
A single bench of Justice Rahul Chaturvedi passed this order while hearing a Criminal Misc Bail Application filed by Gulab Sahni.
By means of the application, the applicant who is involved in case under Sections 363, 376-D IPC, Police Station Brijmanganj, District Maharajganj is seeking enlargement on bail during the trial. The applicant has been in jail since 29.11.2021.
The counsel for the applicant said the FIR was lodged by Smt Amrawati Devi, informant under Section 363 IPC at Police Station Brijmanganj, District Maharajganj on 06.10.2021 against applicant Gulab Sahni and Dhoni with the allegation that her minor daughter (aged 15 years) was enticed away by the named persons.
It is further submitted that though in statement under Sections 161 and 164 CrPC, she consistently made an accusation against the applicants, that both of them had forced themselves on her but she declined to undergo medical examination to substantiate the gangrape.
It is also not disputed that the victim was in the accused’s custody for about 14 days without any alarm, resistance or objection and in statement under section 164 CrPC she stated that there was land dispute three-four years back between her father and family of co-accused Dhoni, under such circumstances a false implication could not be ruled out.
It is further submitted that though it is true that in the statement under Sections 161 and 164 CrPC she is almost consistent against the applicant, there is no plausible justification coming away as why and under what circumstances, she declined medically examination, which is a vital piece of evidence for the prosecution. In the absence of medical evidence, it cannot be said with certainty that it is subject matter of any sexual excess by the applicant.
It is further submitted that the age of the girl is 19 years as per her ossification test.
Abhishek Yadav, Advocate holding brief of Awadhesh Kumar Yadav, counsel for the informant, has opposed the prayer for bail with the contention that the victim in her statements under Sections 161 and 164 CrPC is consistent against the applicant, but he could not dispute the fact that the girl has never admitted herself for any medical examination.
“Keeping in view the rival submissions and considering the facts and circumstances of the case and in absence of a medical examination report which is a vital piece of evidence and without commenting on the merits of the case, I am of the view that the applicant has made out a case for bail,” the Court observed.
The Court ordered,
Let the applicant Gulab Sahni, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the Trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C, may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under Section 174-A IPC.
(iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
(vi) The Trial Court may make all possible efforts/endeavours and try to conclude the trial within a period of one year after the release of the applicant.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.