Gaffar vs State of U.P.

Shiv Shanker, J.—Heard learned Counsel for the applicant and learned A.G.A. as well as perused the whole records.

It is contended by the learned Counsel for the applicant that the prosecutrix Km. Gulshan was found aged about 18 years according to the medical report. No injury was found either on her person or private part. There is no allegation of rape in the first information report as well as in her statement recorded u/s 161, Cr. P.C. by the Investigating Officer. A specific question was asked by the Investigating Officer about the offence of rape. She had denied that he had committed the offence of rape with her. Later on, the statement of prosecutrix was recorded u/s 164, Cr. P.C., wherein she has stated that the applicant has committed rape upon her without consent while the alleged eye-witness Smt. Sarbari had denied the factum of rape. Smt. Sarbari has stated that there was love affairs between them prior to the alleged occurrence. In such circumstances, she may be a consenting party.

On the other hand, learned A.G.A. has opposed the bail application by submitting that the applicant is habitual for committing the offence of rape. He had already been convicted for the offence of Section 376, I.P.C. prior to the alleged occurrence. Thereafter, this occurrence has been committed by him with the victim. The statement of prosecutrix u/s 164, Cr. P.C. has been recorded by the concerned Magistrate, wherein she had specifically stated that at about 8.00 p.m., she was going to the field for attending the natural call. In the way, the house of applicant situated. At the same time, the applicant came out from his house and caught-hold the victim from behind and her mouth was pressed. She was taken by the applicant in his house. Thereafter, her mouth was closed by entering the clothes and she was fell down by him. Thereafter, he committed rape upon her without consent. She raised alarm. He fled away from his house. Thereafter, she opened her mouth and taken out the clothes.

The statement of prosecutrix recorded u/s 164, Cr. P.C. reveals that the applicant has committed rape upon her without consent forcibly by entering the clothes in her mouth. In such circumstances, she cannot be a consenting party. It is worthwhile to mention here that the applicant is a previous convict for the offence of Section 376, I.P.C.

After considering the facts and circumstances of the case, I do not find any force in the arguments advanced by the learned Counsel appearing on behalf of the applicant. Therefore, this bail application is liable to be rejected.

Consequently, the bail application of the present applicant involved in Case Crime No. 592 of 2006, u/s 354/511/376, I.P.C., Police Station Nizamabad, district Azamgarh, is hereby rejected.