Gujarat High Court
Bhaveshbhai Pratapbhai Khuman vs State Of Gujarat on 6 November, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.MA/19986/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 19986 of 2015
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BHAVESHBHAI PRATAPBHAI KHUMAN....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ================================================================ Appearance:
MR YM THAKKAR, ADVOCATE for the Applicant(s) No. 1 MR HARDIK SONI APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 06/11/2015 CAV ORDER
1. This application has been preferred under Section 439 of the Code of Criminal Procedure, 1973 in connection with the offence being CR No.I-33 of 2015 registered with Savarkundla Town Police Station, for the offences u/s. 376 and 342 of the Indian Penal Code and Sections 4, 6 and 8 of the POSCO Act.
2. Brief facts of the case are such that the complainant victim and present applicant were living at the same place in which the father of victim was tenant. On 17.5.2015, at around 14:30 hrs, at noon, the present applicant went to the house of the victim and told her that her mother is calling her and when the victim went to the house of the present applicant, at that time, the victim was taken by the applicant in the bedroom and the applicant forcefully removed the cloths of the victim. It is also in the knowledge of the applicant that the victim is a Page 1 of 6 HC-NIC Page 1 of 6 Created On Sat Nov 07 03:03:17 IST 2015 R/CR.MA/19986/2015 CAV ORDER minor, even though he had tried to intercourse with her.
Therefore, the complaint as stated above, is registered against the applicant and statements of the witnesses were recorded under Section 164 of the Code of Criminal Procedure. Then the victim was sent for medical check up and muddamal was sent to the FSL and then charge-sheet is filed. In this case, present applicant has made application under Section 439 of the Code of Criminal Procedure, with a specific version that he has not committed any such so called offence. It is further submitted that he is a student of Second Year of B.Com. The victim is a girl of the tenant, who is residing in the house of the applicant and family of the victim are not vacating the house though the requests were made by the family of applicant on several occasions and therefore, by keeping grudge, the complaint in question is filed. The applicant also submitted that under the political pressure, the false complaint is filed against the applicant.
3. Learned advocate Mr. Thakkar appearing on behalf of the applicant submitted that the applicant is an innocent person and he has been wrongly implicated in the offence alleged. He also submitted that the the father of the applicant told the father of the victim to vacate the house, but they are inclined to vacate the same and therefore, some dispute regarding the same took place and therefore, the complaint in question is filed with a view to rope the applicant in the offence. He also submitted that the panchnama of place of offence is drawn and the muddamal articles i.e. bed cover, cloths of victim etc. were sent to FSL. He also submitted that the complaint is filed due political pressure as the father of the victim, having close relationship with the member of Parliament and President of Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Nov 07 03:03:17 IST 2015 R/CR.MA/19986/2015 CAV ORDER Municipality. He also submitted that the victim was sent to the medical expert for medical examination and certificate is annexed with the papers of charge-sheet. From the papers of the charge-sheet, it appears that no external or internal injury is found by the expert and even no signing of injury on the body of victim and any semen on the cloth or anywhere was found during the course of medical check up. Even the medical certificate reveals that no one finger gap is present. He also submitted that from the papers, it is not prima facie established that the incident in question is occurred. Even the medical officer advised to refer the victim to the gynecologist but she was not referred and therefore, in absence of evidence or statement of gynecologist, the offence of rape cannot be said as committed by the present applicant. No doubt, the prosecution has applied the offence of POSCO Act against the applicant, but there is no corroborative piece of evidence, which links the applicant to the alleged offence. He also submitted that the father of victim has intentionally lodged the complaint against the applicant due to animosity on the issue of vacating the house. He lastly prayed to grant the bail to the applicant by imposing suitable conditions.
4. Learned APP strongly opposed the bail application of the applicant and submitted that looking to the seriousness of the offence, which is committed by the applicant, the discretion under Section 439 is not required to be exercised in favour of the applicant. He also submitted that the victim is a minor and there are sufficient evidence and statements, which links the applicant in the commission of the offence.
5. I have heard both the parties and considered the papers Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Nov 07 03:03:17 IST 2015 R/CR.MA/19986/2015 CAV ORDER made available on record like FSL report, panchnama scene of offence, serological report etc. It also appears that no semen or blood is recovered from the place of incident and even from the bed sheet cover, cloths of the victim and from the secret part of the victim. Even from the opinion of the Medical Officer, it appears that there is no external or internal injury found on the body of the victim or even on the secret part of the victim. The applicant is in jail since 22.5.2015 and he is a student of Second Year B. Com. Prima facie, sperm was not found from the victim girl and cloth of the applicant. The statement of father disclosed that political persons met to the DSP for filing the complaint. I have minutely perused police papers, which are produced on record.
6. In support of the prosecution case, statement of victim is produced, but no circumstance evidence regarding FSL report, medical certificate is corroborated in this case. The Apex Court in the case of Mohd. Ali @ Guddu Vs. State of Uttar Pradesh, reported in (2015) 7 SCC 272, for the offence punishable under Sections 376, 366 and 368 of the Indian Penal Code, it is observed that when a Court on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not irreproachable, then there is a requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. In such cases where such other evidence does not support the story of the prosecutrix it can be discarded. In the above case, the original accused was convicted by the learned trial Judge for the offence punishable under Section 376 and that conviction was confirmed by the High Court and in that case, the Hon'ble Supreme Court has allowed Criminal Appeal (SLP) No.9896 of Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Nov 07 03:03:17 IST 2015 R/CR.MA/19986/2015 CAV ORDER 2011 arising out of Criminal Appeal No.602 of 2006 decided by the Allahabad High Court.
7. Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the case, statement of the witnesses, gravity of the offence and quantum of punishment and in view of the above observation in the case of Mohd. Ali @ Guddu (Supra), I am inclined to grant bail to the applicant. At this stage, this Court is not going into the merits of the case.
8. Considering the above, this application is allowed. The applicant is ordered to be released on bail in connection with CR No.I 33 of 2015 registered with Savarkundla Town Police Station, Dist. Amreli, for the alleged offence, on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall:
a) not take undue advantage of his liberty or abuse his liberty;
b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner;
c) maintain law and order and should cooperate the Investigating Officer;
d) not act in a manner injurious to the interest of the prosecution;
e) not leave the country without the prior permission of the concerned Sessions Judge;
f) mark his presence before the concerned police station on every 15th day of every English Calender month;
g) furnish the address of his residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;Page 5 of 6
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h) surrender his passport, if any, to the lower Court within a week.
9. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
10. Rule is made absolute. Direct service is permitted.
(Z.K.SAIYED, J.) YNVYAS Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Nov 07 03:03:17 IST 2015