Jasvir Singh vs State of U.P.

Vijay Kumar Verma, J.—By means of this application u/s 439 of the Code of Criminal Procedure, prayer for bail has been moved on behalf of applicant Jasvir Singh S/o Bhagh Singh Yadav in Case Crime No. 440 of 2007 under Sections 363, 366, 376, I.P.C. and Section 3(2)(v) of S.C./S.T. Act, P. S. Dholna, district Etah.

An F.I.R. was lodged on 29.8.2007 by the complainant Ram Prasad S/o Tola Ram Jatav, R/o village Jakhera, P. S. Dholna, district Etah, against Jasvir Singh (applicant herein) and Ajay Pal Singh Yadav. A case under Sections 363, 366, I.P.C. and Section 3(2)(v) of S.C./S.T. Act was registered at Crime No. 440 of 2007 at P. S. Dholna, Etah. The allegations made in the F.I.R., in brief, are that daughter of complainant aged about 13 years had gone to cut the grass on 21.8.2007 at about 2.00 p.m. (Name of the prosecutrix is not being disclosed in the order in pursuance of the direction of the Hon''ble Apex Court). It is alleged that the accused Jasbir Singh and his brother-in-law (sala) Ajay Pal Singh Yadav kidnapped and carried the daughter of the complainant on motorcycle. Further case of the prosecution is that both the accused persons committed rape with prosecutrix after confining her in some house. The accused Jasbir Singh is alleged to have committed rape with her for many days. It is also alleged that the prosecutrix was recovered on 31.8.2007 in kasba Dholna at the tiraha of the road going to Firozapur and applicant Jasvir Singh was also present with her at that time, who was arrested by the police.

I have heard argument of Sri A. Kumar Singh and Sri Ghanshyam Joshi, advocates appearing for the applicant and A.G.A. for the State.

The main submission made by the learned Counsel for the applicant was that the co-accused Ajay Pal Singh Yadav has been granted bail by another Bench of this Court vide order dated 16.12.2008, passed in Criminal Misc. Bail Application No. 34040 of 2008 and since the role of committing rape with the prosecutrix was attributed to that accused also in the statement of prosecutrix recorded u/s 161, Cr. P.C. hence on the ground of parity the applicant deserve bail.

Next submission made by learned Counsel was that incident of kidnapping the daughter of the complainant is said to have occurred on 21.8.2007, whereas F.I.R. was lodged on 29.8.2007.

It is further submitted by the learned Counsel for the applicant that statement of the prosecutrix u/s 164, Cr. P.C. has not been recorded purposely, as she might be a consenting party in going with the applicant.

It is also submitted that the applicant is in jail since 31.8.2007 and hence on the basis of long detention period in jail, the applicant is entitled to be released on bail, because due to delay in trial, fundamental right of speedy trial envisaged under Article 21 of the Constitution is being infringed.

The bail application was opposed by the learned A.G.A. contending that explanation of delay of lodging the F.I.R. has been furnished by the complainant Ram Prasad in his statement u/s 161, Cr. P.C. (Annexure-2) and hence, the delay in lodging the F.I.R. would not be fatal to the case of prosecution. It was also submitted by learned A.G.A. that delay in lodging the F.I.R. in rape cases is not very material as held by the Hon''ble Apex Court in several decisions.

Next submission made by learned A.G.A. was that as per medical report, age of the prosecutrix was found above 16 years and since gang rape was committed with her by the applicant and his companion Ajay Pal Singh Yadav, hence in this heinous anti-social crime, the applicant Jasbir Singh, who is prime accused of this case, should not be granted bail. It was also submitted by learned A.G.A. that the prosecutrix cannot be consenting party for gang rape.

On the matter of granting bail on the basis of parity, it was submitted by learned A.G.A. that role of the applicant Jasbir Singh is distinguishable, because he continued to commit rape with the prosecutrix for many days, whereas allegation against co-accused Ajay Pal Singh Yadav was that the committed rape only once. It was also submitted by learned A.G.A. in this context that prosecutrix was recovered from the company of the applicant Jasbir Singh on 31.8.2007.

I have carefully gone through the entire case diary and other papers on record. In her statement recorded u/s 161, Cr. P.C. the prosecutrix has fully supported the allegation of committing rape with her by the applicant Jasbir Singh and co-accused Ajay Pal Singh Yadav. It is specifically stated by the prosecutrix in her statement (Annexure-4) that on the point of tamancha, Jasbir Singh and Ajay Pal Singh Yadav abducted her from the field of Sahab Singh, R/o Nagrayani at about 2.00 p.m. on 21.8.2007, while she was cutting grass there and they both carried her on motorcycle to some village, where they confined her in a room and they both committed rape with her one by one. It is also stated by the prosecutrix that Ajay Pal Singh Yadav left that place leaving Jasbir Singh, who continued to commit rape with her for many days, but due to fear she could not raise protest. It is further stated by the prosecutrix that when Jasbir Singh was standing at tiraha for carrying her somewhere, the police came and apprehended him.

The prosecutrix was medically examined on 31.8.2007 at 4.45 p.m. in Women Hospital, Etah. Annexure-5 to the bail application is the copy of medical report, which shows that on external examination, scratch marks were found present over both breasts, both thigh and pubic region. In internal examination, .5 cm. small tears were present at 6 O''clock position. The tear was fresh and slight bleeding was present. As such from the medical report, the allegation of committing rape with the prosecutrix is getting support. According to the supplementary report, on the basis of the findings of X-ray report, the age of the prosecutrix was found above 16 years, but age of the prosecutrix has not been shown more than 18 years. Therefore, having regard to all these facts, but without expressing any opinion on merit of the case, in this heinous anti-social crime, the applicant does not deserve bail.

On the principle of the parity also, the applicant cannot be granted bail, because his role is distinguishable from the role of co-accused Ajay Pal Singh Yadav, who has been enlarged on bail as stated hereinabove. Otherwise also, parity cannot be the sole ground for granting bail.

In my considered opinion, on the basis of the long incarceration in jail also, the applicant cannot be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and Ors. LXIII 2008 (63) 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 accused 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 application of the applicant Jasbir Singh is hereby rejected.

The trial court is directed to conclude the trial of the accused-persons within a period of six months by making sincere efforts avoiding unnecessary adjournments.

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