Bhodu alias Dilip Pandit vs State of U.P.

Vijay Kumar Verma, J.—Heard Sri Brijesh Chandra Naik, advocate appearing for the applicant and A.G.A. for the State and also perused the record.

Prayer for bail has been made on behalf of the applicant-accused Bhodu alias Dilip Pandit, who is facing trial u/s 376, I.P.C. and Section 3(2)(v) of S.C./S.T. Act, in S.T. No. 74 of 2008, arising out of Crime No. 177 of 2008 of P. S. Bargarh (Chitrakoot).

The allegation as per F.I.R. lodged on 22.3.2008 by the complainant Anand Babu Dhobi at P. S. Bargarh, district Chitrakoot, in brief, is that the accused Bhodu alias Dilip Pandit committed rape with minor niece of the complainant aged about 4 years, on 22.3.2008 at about 4.00 p.m., after carrying her in half constructed house of Nand Lal Pandit. (Name of the prosecutrix is not being disclosed in the order in pursuance of the direction of the Hon''ble Apex Court).

It is submitted by learned Counsel for the applicant that the medical report is not supporting the F.I.R. version regarding committing rape with the prosecutrix.

It is further submitted that statement of the prosecutrix has been recorded in trial court in S.T. No. 74 of 2008, copy whereof has been filed as Annexure-SA-1 to the I Vth supplementary-affidavit dated 17.4.2009 and from that statement, it transpires that the prosecutrix had fallen down on bricks, due to which she sustained injuries.

Next submission is that the witness Satya Narayan Vishwakarma also has been examined in aforesaid session trial, but he has not supported the case of prosecution and has been declared hostile.

It is also submitted that no such incident as alleged in the F.I.R. had occurred and the applicant has been falsely implicated in this case due to enmity and false story about rape with the prosecutrix has been concocted.

Last submission is that the applicant is in jail since 23.3.2008 and hence, on the ground of long incarceration in jail, the applicant deserves bail.

The bail application has been opposed by learned A.G.A. contending that the applicant committed rape with a minor girl aged about 7 years and hence, in this heinous anti-social crime, the applicant should not be granted bail. It is also submitted by the learned A.G.A. that due to falling down on the heap of bricks, injury inside private part (vagina) of the prosecutrix could not be caused, whereas at the time of medical examination of the prosecutrix her hymen was found torn with injury in the vagina, which has been opined by doctor to have been caused by some blunt object as per supplementary report (Annexure-2). The contention of the A.G.A. is that injury inside the vagina of the prosecutrix could be caused by penetration of male organ (penis) and not by falling down on the bricks.

I have carefully gone through the statement of the prosecutrix recorded on 30.3.2009 in S. T. No. 74 of 2008 in the court of Additional Sessions/Special Judge, S.C./S.T. Act, Chitrakoot. A question was put to her by the Court. In answer to that question, she has stated that indecent act (galat kam) was committed by Bhodu with her, due to which blood had come from her peshab (private part). Medical report (Annexure-SA1) to the supplementary-affidavit dated 4.12.2008 shows that at the time of medical examination of the prosecutrix, her hymen was found torn and second tear about 1 cm. long and 5 cm. deep at 6 O''clock position was found. The wound was unhealthy. The age of the prosecutrix as per medical report was found about seven (7) years. In the supplementary report dated 1.5.2008 (Annexure-2), it is opined that vaginal injury was caused by blunt object. As such, from the medical report, this fact is borne out that there was injury in the vagina of the prosecutrix and her hymen was torn. The prosecutrix has stated on oath that "galat kam" was committed with her by Bhodu (applicant herein), due to which blood had come from her private part (peshab). Therefore, having regard to all these facts, but without expressing any opinion on merit of the case, in this heinous crime, the applicant does not deserve bail.

In my considered opinion, on the basis of the period of incarceration in jail also, the applicant cannot be released on bail. In this context, I would like to refer the decision of Hon''ble Apex Court in the case of Pramod Kumar Saxena v. Union of India and Ors. LXIII 2008 ACC 115: 2008 (3) ACR 3216 (SC), in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per se illegal. If the applicant has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution.

For the reasons mentioned hereinabove, the bail applications of the applicant Bhodu alias Dilip Pandit is hereby rejected.

The trial court concerned is directed to conclude the trial of the applicant within four months, if possible, making sincere efforts and avoiding unnecessary adjournments.

The office is directed to send a copy of this order within a week to the trial court concerned for necessary action.