Mohit Bansal vs State Of Nct Of Delhi
2002 Latest Caselaw 707 Del

JUDGMENT

S.K. Agarwal, J.

1. This is a petition under Section 438 read with Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C." for grant of anticipatory bail in case FIR No. 646/2001, under Sections 342/354/365/376/34 IPC. P.S. Rohini. First application being Crl.M.(M). No. 4082/2001 for grant of same relief was dismissed as withdrawn on 14th December, 2001.

2. Brief facts are that above-noted case was registered on the statement of Ms. Kavita, who has stated that she was in B.A. 1st year studying in S.P.M. College, Punjabi Bagh; on 7th September, 2001 while she was walking towards bus stand Rohini to go to her college at about 8.40 A.M. When she reached at Rajiv Gandhi Cancer Institute, petitioner was standing there on his red colour motorcycle; and on seeing her he threatened her and made her to sit on his motorcycle and took her to flat No. 11, Rohini where the co-accused. Raju was also present. Another boy, who was referred to as Rana by Raju and the petitioner also came there. The petitioner bolted the room from inside and removed her clothes and she was raped by him. Thereafter the other boys also attempted to commit rape and outraged her modesty. On shouting and raising alarm she was permitted to go out. The petitioner threatened her with dire consequences; she came back home on arrival of her mother she told everything to her. On the basis of this statement above noted case was registered. After completion of investigation challan has been filed.

3. The petitioner and his friend co-accused Raju moved an application for grant of anticipatory bail, the same was rejected. Co-accused Chandra Prakash @ Raju surrendered; he remained in custody for quite some tim and thereafter was granted regular bail. Petitioner did not surrender and proceedings under Sections 82/83 Cr.P.C. were initiated against him.

4. Learned counsel for petitioner argued that investigations have been completed and challan has been filed. After the incident, he was medically examined at Government hospital on 8th September, 2001; the local examination of his private parts did not reveal any injury and the medical examination of prosecutrix "Kavita" also did not show any bruise or abrasion on her person and there was no bleeding from her private parts.

5. Learned counsel for the petitioner on the basis of photocopy of a Forensic Science Laboratory report filed by them further argued that semen stains found on the clothes of the prosecutrix revealed AB group, which is not of the petitioner. The prosecutrix is aged about 20 years. Assuming the allegations to be true, the prosecution case is likely to be failed, therefore, the petitioner is entitled to be released on bail. Learned APP for State argued to the contrary and submits that smegma on his private part was missing and the medical examination of Kavita shows that her hymen was torn. This corroborates her statements and that earlier application of the petitioner having been dismissed, he is not entitled to be released on anticipatory bail.

6. I have considered the rival contentions. The prosecution allegations, prima facie, show that it is a case of gang rape which is punishable up to life imprisonment. Reference in this regard can be made to Explanation I of Sub-section (2) of Section 376 IPC, which reads as under:-

"Explanation I. -- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section."

As per the prosecution allegations, petitioner took the complainant to a flat in Rohini where two co-accused Raju and Rana were also present; petitioner raped her against her wishes. Other co-accused persons also attempted to proceed in that direction and held her breast. She was released after she raised hue and cry. Co-accused Raju surrendered on 30th September, 2001 and remained in custody for about six months. The argument that the story given by the prosecution is inherently improbable and unworthy of credence cannot be accepted at this stage. The petitioner has been absconding, despite his application for pre-arrest bail having been dismissed; he did not surrender and proceedings under Sections 83/83 Cr.P.C. have been initiated against him.

7. For the foregoing reasons, no case for grant of anticipatory bail is made out. Dismissed. Any observations made herein shall not affect the merits of the case, during the trial.

8. Trial court record, be sent back.