Uttarakhand High Court
BA1/2249/2021 on 24 September, 2021
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BAI No. 2249 of 2021
Hon'ble N.S. Dhanik, J .
Mr. Piyush Garg, learned counsel
for the applicant.
Mrs. Mamta Joshi, learned Brief
Holder for the State.
Mr. D.C. Joshi, learned counsel for
the complainant.
Heard learned counsel for the
parties.
This is the first bail application
moved on behalf of the applicant seeking
regular bail in connection with Case
Crime No. 0227 of 2021 for the offences
punishable under Section 354 (D) and
376 IPC, registered at P.S.
Banbhoolpura, District Nainital.
Learned counsel for the applicant
submits that the applicant has falsely
been implicated in the instant crime;
that the applicant has no criminal history
and he is languishing in jail since
25.07.2021. He also submits that the
applicant and complainant were
neighbours about 6 years and the story
narrated by the complainant in the FIR is
inconsistent and absolutely frivolous. He
also submits that it is highly improbable
that one may commit such an offence in
a broad daylight in a building occupied
by so many persons as the house of the
complainant is in a 3 story building. He
further submits that the complainant is
major and even if the allegations take at
its face value even then it does not make
out an offence under Section 354 (D) or
376 IPC. He also submits that the father
of the applicant is a social and political
person and only because the political
rivalry the complainant has lodged the
FIR just to humiliate them.
Learned counsel to buttress his
argument, has cited ruling of Hon'ble
Apex Court in Criminal Appeal No. 635 of
2020 and in the said judgment the
Hon'ble Apex Court, in para 20 has held
that "we have no hesitation in concluding
that the consent of the prosecutrix was
but a conscious and deliberated choice,
as distinct from an involuntary action
denial and which opportunity was
available to her, because of her deep-
seated love for the appellant leading her
to willingly permit him liberties with her
body, which according to a person with
whom one is deeply in love".
Furthermore, it is submitted that it
is the settled principle of law that no one
can force anybody for marriage and it
cannot be said that someone was
induced to have physical relations on the
pretext of marriage, that too, when the
both parties are major, thus in this
circumstances, no case under Section
376 IPC is made out against the
applicant.
Despite sufficient service, no
counter affidavit has been filed on behalf
of the complainant. Now he is arguing
orally. He argued that Section 376 IPC is
made out against the applicant as on the
pretext of marriage, the applicant made
physical relations with the victim.
Learned State Counsel opposed the
bail application on the ground that there
is a independent witness of the alleged
incident namely Shahnaz and Shahnawaz
recorded under Section 161 Cr.P.C.
where they have supported the
prosecution story. She also submits that
the Section 376 IPC is made out against
the applicant as on the pretext of
marriage, the applicant made physical
relations with the victim.
Considering the facts and
circumstances of the case, without
expressing any opinion as to the final
merits of the case, this Court is of the
view that the applicant deserves bail at
this stage.
The bail application is allowed.
Let the applicant be released on
bail, on executing a personal bond and
furnishing two reliable sureties, each of
like amounts to the satisfaction of Court
concerned.
(N.S. Dhanik, J.)
24.09.2021
SB
