Waseem vs State of U.P.

Hon''ble Surendra Singh, J.—Applicant-Waseem seeks bail in Case Crime No. 47 of 2011, under Sections 363, 366A, 328, 343, 376 IPC, P.S. Mundali, Merrut. Heard learned counsel for the applicant and Sri Manoj Kumar Mishra, learned counsel appearing on behalf of the informant as well as learned A.G.A. and also perused the material placed on record.

The brief of the facts of the prosecution in nut shell are as follows:

i. On 4.3.2011 at about 2 pm the niece of the informant, namely, Shabana was found missing;

ii. Informant Aslam got an information that the victim was traced out and is detained at police station Loni, District Ghaziabad. On this ground informant along with Raees, Nafees and Jabbar reached there and brought her to their native district Meerut;

iii. The victim has disclosed them that on 4.3.2011 she was enticed away by the applicant as well as co-accused Gul Hasan and Wasid. He further disclosed that all these persons took her to Ghaziabad after getting her unconscious. Next day when she regained sense she was found herself in a closed room and both the applicant and Gul Hashan were present there;

iv. The informant thereafter lodged the FIR on 8.3.2011 at about 10 A.M. under Sections 363/366 IPC against the applicant as well as co-accused Gul Hasan and Wasid at Police Station Mundali, District Meerut;

v. The victim in her statement recorded u/s 161 Cr.P.C. on the next day i.e. 9.3.2011 had reiterated the version of the FIR with the improvement that all the three accused persons have forcibly taken her in a car and when he regained senses she found that there is no cloth on her body, therefore, she was of the view that the accused applicant and co-accused Gul Hasan have committed rape on her. They had also threatened her with dire consequences. She further stated that when she raised alarm some persons of the locality reached at her rescue and took her to the police station Loni;

vi. She was medically examined on 8.3.2011. As per opinion of the Chief Medical Officer, her age was found about 21 years on the basis of the ossification test. Slide of vaginal smear was sent for chemical examination. As per report of the Pathologist of District Women Hospital dated 8.3.2011, no spermatozoa was found;

vii. The statement of the prosecutrix/victim was recorded u/s 164 Cr.P.C. on 1.4.2011 wherein she had reiterated version of her statement recorded u/s 161 Cr.P.C. with the additional improvement that apart from the above mentioned three accused persons. Two other persons, namely, Gulfam and Ikram were also present and all of them have committed rape on her.

The victim was medically examined by the Medical Board to ascertain her correct age on the basis of fresh X-ray report and any other medical report advised by the Medical Board.

Counter affidavit filed by the learned A.G.A. is already on record.

The medical report submitted by the Medical Board has been filed along with counter affidavit which is marked as Annexure No. 1 of the counter affidavit. As per opinion of the prosecutrix/victim, the age of the prosecutrix/victim was 21 years on the basis of ossification test.

It is argued by the learned counsel for the applicant that the victim Shabana, as per medical opinion, was aged about 21 years and it cannot be said that any rape was committed on her. Relying upon the decision of Bibhishan Vs. State of Maharashtra, 2008 (3) SCC (Cri) 163, he has submitted that in the absence of injury or mark of violence either on her private part or external part of the body further demolishes the story of the prosecution. He has further contended that the statement of the victim recorded u/s 161 Cr.P.C. and 164 Cr.P.C., cannot be accepted on the face of it and it is very unnatural and against human conduct that she has not resisted at the time of the commission of the rape. Both the statements of the victim are contrary to each other. He further argued that there is no allegation of rape by the applicant and other co-accused persons either in the FIR or in the statements of the victim recorded under Sections 161 Cr.P.C. He further argued that for the first time, the victim in her statement recorded u/s 164 Cr.P.C. stating therein that all the five persons have committed rape upon her. In view of this, her testimony does not inspire confidence and is therefor not reliable. It is further pointed out that there being no such allegation that any of the accused persons were having any arms or weapons due to which she was apprehensive of her life, prosecutrix had sufficient opportunity since 4.3.2011 to 7.3.2011 not only to run away from the house where she was confined but could have raised alarm for the help of neighbours at earliest point of time. He further argued that co-accused Gul Hasan and Gulfam are the real brother while Ikram and Waseem (applicant) are also real brother. Co-accused Wasid was a minor and has been granted bail by another Bench of this Court on 31.10.2011 vide Criminal Revision No. 2584 of 2011. Co-accused Gulfam has also been granted bail by another Bench of this Court on 28.9.2011 vide Criminal Misc. Bail Application No. 23666 of 2011. He next argued that it is improbable that both, Gulfam and Waseem, the real brothers, would participate in the present crime along with co-accused Gul Hasan with his real brother Gulfam. The allegation apparently appears to be false and concocted. Version given by the prosecutrix is unsupported by the medical evidence and the circumstance belies the case set up by her. Moreover, absence of injury on the body improbablies the prosecution version. Lastly he argued that the applicant is in jail since 9.3.2011 and had no criminal history to his credit deserves to be released on bail at this stage.

However, learned A.G.A. as well as learned counsel for the informant have vehemently opposed this bail application and contended that the victim was minor as her date of birth mentioned in School Leaving Certificate was 4.3.1998. There is no material to indicate that the victim was a consenting party, therefore, the point of age has got no relevancy. It is further argued that since the victim has specifically stated in her statement recorded u/s 164 Cr.P.C. that accused persons have committed rape upon her, therefore, the applicant is not entitled to be released on bail.

The points pertaining to nature of accusation, severity of punishment, reasonable apprehension of tampering the witnesses, prima facie, satisfaction regarding proposed evidence and genuineness of the prosecution case were duly considered.

Considering the facts and circumstances of the case and taking into account that the applicant is in jail for considerable period and the trial has not commenced, he deserves to be released on bail at this stage. Without expressing any opinion on the merits of the case, let applicant-Waseem involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned and executing an undertaking in the following terms:

The applicant shall appear on every date before the trial court and shall not seek unnecessary adjournment.

The applicant shall not tamper with evidence in any manner.

The applicant shall report to the court of C.J.M. concerned in the first week of each month till the conclusion of the trial to show his good conduct and behaviour. In default of any of the aforesaid conditions, it will be open to the court concerned to cancel the bail of the applicant without reference to the court.