Sandeep Kumar vs State Of Uttarakhand

Sharad Kumar Sharma, J

(Via video conferencing).

The applicant is alleged to be an accused in the commission of offences under Section 376 (2) (n), 376 (3) and 506 of IPC, and under Section 5 L/6

of the Protection of Children from Sexual Offences Act, 2012, which was registered on 03.07.2020, as an FIR No.373 of 2020, at Police Station

Kotwali, Roorkee, District Haridwar.

On the culmination of the investigation, the charge-sheet has already been submitted on 28.08.2020, and the cognizance of the offences has been

taken by the learned Trial Court on 23.09.2020. As a consequence thereto, the Sessions Trial No.93 of 2020, “State Vs. Sandeep & anotherâ€, is

presently pending consideration before the Magistrate concerned.

In the present FIR, the complainant/prosecutrix has come-up with a case that the applicant/accused who was a vegetable vendor, who had

committed a rape it was under a threat way back in August, 2011, and as per the set of averments, which has been made in the bail application, as

well as in the contents of the FIR, the fact which are also apparent from the statement of the prosecutrix recorded under Sections 161 and 164 of the

CrPC, are that the prosecutrix has been constantly moving around with the present applicant/accused, and had been staying in various hotels, where

they have voluntarily established physical relationship, was said to have been established between them. Not even that, it is a fact, which has also

come on record that the prosecutrix/complainant has admitted that she had solemnized marriage with the applicant in “Mansa Devi Temple†on

19.04.2019, and she further admits the fact that as a consequence of the establishment of the physical relationship, the prosecutrix/complainant,

became pregnant, but however later on aborted the child, and then on this backdrop, she contended that the physical relationship, which was

established in April, 2019, was taken as the basis of the registration of the FIR against the present applicant on 03.07.2020. Besides there had been

various other proceedings, which have been drawn arising out of the FIR, for example by way of a writ petition being Writ Petition No. 947 of 2020

and C482 No.642 of 2020.

But at this stage, this Court is not concerned with the aforesaid proceedings. Those are the proceedings, which are to be decided independently by

the court concerned. But looking to the statements and the set of allegations which had been leveled in the FIR, and particularly, the date when the

FIR was registered i.e. on 03.07.2020. according to the version of the prosecutrix herself, she has attained the age of majority and the said incident of

alleged rape, is said to have been persistently been committed upon her since August, 2011, and the factum of marriage is also an admitted fact.

Besides this, the medical report which has been filed with the counter affidavit as CA No.3, does not support the set of allegations, which has been

leveled in the FIR, as against the present applicant.

In view of the fact that the very conduct of the prosecutrix/complainant, of moving around with the applicant/accused, voluntarily ever since

August, 2011, till the date of the registration of the FIR on 03.07.2020 i.e. long a years, and taking the pretext of denial of marriage by the

accused/applicant, as the basis for the registration of the FIR on 03.07.2020, itself shows that there was a tacit consent by the

prosecutrix/complainant, and as such.

Under these circumstances, this Court is inclined to release the applicant on bail. The applicant is directed to be released on bail, subject to the

furnishing of his personal bonds and two sureties of the like amount to the satisfaction of the Magistrate concerned.