Uzair alias Mahmood vs State of U.P.

S.K. Verma, J.—In this bail application, applicant Uzair alias Mahmood is Involved in case crime No. 280 of 1994 under Sections 363/366/376/342/506, I.P.C. Police Station Cantt. district Varanasi. Sri A. D. Giri, Senior Counsel has been heard on behalf of the applicant and Sri S. T. Siddiqui, Advocate representing the Central Bar Association, Varanasi has also been heard on behalf of the aforesaid Association. in public interest it would be relevant to mention that though it was argued on behalf of the applicant that there is no public Interest involved, however, Sri S. T. Siddiqui was permitted to make his submissions and has been heard at length.

According to the first information report dated 18.5.1994 lodged at 3.15 a.m. Smt. Madhuri Singh, complainant, mother of the victim was going along with her daughter Kajal Singh alias Sangita Singh aged about 16 years and his son Sunil Singh aged 10 years on 17.5.1994 on foot after returning from hospital in Banaras Hindu University at about 8.00 p.m. When the applicant along with another met them and cajoled them to accompany them because they were also going to Ballia where the complainant wanted to go. They took the complainant and the girl to hotel "Ideal Top" in the Cantt. Varanasi and offered to host a dinner. Thereafter, they locked the complainant and her son in one room and took the girl in another room where they are said to have committed rape on her. Police came to the hotel on receiving information somehow and arrested the applicant and his associate.

The case started taking twists and turns and received wide publicity in the newspapers, the students of Kashi Hindu Vishwavidyalaya and lawyers forum, Social Service Forum and members of Mahila Congress raised slogans and sat on a Dharana before the administration. The medical examination report conducted by the lady doctor on 18.5.1994 at about 1.30 p.m. i.e., after 14-15 hours indicated that the girl was aged about 17 years and that she did not have any mark of injury on the body externally and internally. Hymen showed old tears, vagina admitted one finger easily and two fingers with a little difficulty. A Medical Board was also constituted which confirmed the report of the earlier lady doctor on 21.5.1994. Affidavits of the victim as well as her mother were filed on 23.5.1994 in the Sessions Court, Varanasi indicating that the applicants had prior acquaintance with the family of the victim and that on the date of occurrence they were taking food in the hotel when the police came and started interrogating them and misbehaving with them. On protest the police became enraged and took them to police Station where Smt. Madhuri Singh was forced to sign on a report not dictated by her and the victim was forced during the course of the period upto 22.5.1994 after the arrest to make statement before the Court according to the prosecution story. Thereafter on 25.5.1994 a complaint was also filed by the victim against Senior Sub-Inspector of Police, K. P. Pandey, constable G. K. Pandey, Head constable S. P. Dubey and two other police constables u/s 500/509/342/384/504/506/218, I.P.C. in the Court of the Chief Judicial Magistrate Varanasi in which statement of the victim and her mother were recorded under Sections 200 and 202, Code of Criminal Procedure falsifying the entire prosecution version and accusing the police persons as aforesaid. The police also recorded the statement of Sher Rai, Gram Pradhan, Bahadurpur, Ballia, the village where the complainant was allegedly going and where she allegedly lived. This statement of the Gram Pradhan mentions that the complainant, her daughters and members of her family were characterless and the complainant had been going along with the victim of this incident to Varanasi occasionally on the pretext that they were doing the job of Nurse in Varanasi.

It has been argued on behalf of the applicant that the medical examination report of the girl does not support the prosecution version. It rather supports the story set up by the prosecutrix herself in her complaint. It has also been urged that the prosecutrix was a consenting party and even then no sexual intercourse was committed as found in the medical report. in fact the victim as well as the applicant were forcibly taken away by the police because of annoyance during interrogation. Regarding the age of the girl also it has been argued that she is 16 years old according to her mother and 17 years old according to the medical evidence. It has also been urged that even if the victim is allegedly a call girl as per the alleged statement made by the Senior Police Officer published in the newspapers at Varanasi and is a consenting party, no offence is made out.

In reply It has been alleged that the statement u/s 161, Code of Criminal Procedure and 164, Code of Criminal Procedure made by the victim are sufficient for the rejection of the bail. This contention is prima facie a very weak plea in the face of the complaint lodged by the victim herself totally demolishing the prosecution version in support of which she has also made a statement under Sections 200 and 202, Code of Criminal Procedure Assuming that these statements can only be used for corroboration or contradiction, the same is the position of the statements u/s 161 and Section 164, Code of Criminal Procedure or the victim. It was also urged that filing of affidavits of the prosecution witnesses indicates tampering with evidence and should not be taken into account. For this proposition reliance has been placed on the decision in Jaswant Singh and Ors. v. State of U.P. 1994 JIC 219. It is true that there is a growing tendency now by the accused to procure affidavits but in the peculiar circumstances of this case where allegations are being made by the prosecutrix herself against the police personnel it would not be proper to ignore atleast the statements under Sections 200 and 202, Code of Criminal Procedure made by the prosecutrix in the complaint case.

Reliance has been placed on the decision of the apex Court in Rafiq v. State of U.P. 1983 SC Crl R 308 where womens personal dignity was found to be sacred component of human rights. There cannot be any quarrel with this proposition but circumstances differ from case to case. la this particular case, the medical report and the complaint lodged by the prosecutrix against police personnel would prima Jacie indicate that the prosecution version does not have a ring of truth.

The decision of Harpal Singh v. State of Himachal Pradesh (IIXX) 1981 ACC 57 has no application to the facts of this case where the victim of rape of prima facie above 16 years of age. Reliance has also been placed on the decision of the Supreme Court in B.B. Hirajibhai v. State of Gujarat (XX) 1983 ACC 29 (SC) where the Supreme Court emphasised the fact that barely will a girl or woman in India make false allegations of sexual assault due to various psychosocial factors. However, prima facie, in this case, the victim herself has changed her version and has claimed that no such incident took place. It was also urged on behalf of the prosecution that character or reputation of the victim has no bearing or relevance either in the matter of adjudging a guilt of the accused or imposing punishment u/s 376, I.P.C. (State of Haryana v. Prem Chand (XXVII) 1990 ACC 48. Even this decision does not help where the prosecutrix herself, prima facie, changes her version and accuses the police of excesses.

For the reasons stated above, the ball application is allowed. Let the applicant Uzair alias Mahmood involved in case Crime No. 280 of 1994 u/s 363/366/376/342/506, I.P.C. P. S. Cantt. District Varanasi be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate, Varanasi.