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CR.MA/11392/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11392 of 2010
=========================================================
MOHAMMED
ASIF HUSSAIN ABBAS SAIYED - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
MR
SAAD AIJAZ KHAN for
Applicant(s) : 1,
MR MR MENGDE, ADDL. PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 01/10/2010
ORAL
ORDER
The
present application has been filed by the applicant for grant of
regular bail under section 439 of Code of Criminal Procedure, 1973
after the charge sheet is filed.
The
applicant is charged with having committed offences under sections
376, 506(2), 344 and 114 of Indian Penal Code for which F.I.R. being
I-C.R.No.175 of 2010 has been registered with Vejalpur Police
Station.
Learned
advocate Mr. Khan, referring to the FIR as well as the other papers
including the statement of the prosecutrix dated 7.4.2010, Annexure
-D, has submitted that it was an affair and she had accompanied the
applicant with her consent. It was submitted that both are major
and only because of caste factor, the complaint has been given by
the father after delay. He has also submitted that the applicant is
also educated. He therefore, submitted that present application may
be allowed.
Learned
Additional Public Prosecutor Mr.Mengde resisted the application. He
referred to the papers including the statement given by the Doctor
of General Hospital, Sola at Annexure F, wherein the victim has
stated about the history. He also referred to further statement of
the victim as to what has transpired and therefore, submitted that
present application may not be entertained. Learned advocate Mr.
Khan has submitted that the statement of Doctor at annexure F to
emphasize the last line that there was a prior relation and
therefore, present application may be allowed.
In
view of rival submissions, it is required to be considered whether
the application can be entertained or not.
It is well accepted
that this Court is not required to appreciate and scrutinize
evidence elaborately at this stage. However, for considering prima
facie case, the relevant aspects like the nature of
offence/gravity, the manner in which it is alleged to have been
committed, the role attributed to the applicant, the statement of
the victim and the medical evidence are required to be considered.
As learned advocate Mr. Khan has submitted in detail, referring to
the papers, only for considering prima facie case, the same have
been considered and without further elaboration, it cannot be said
that there was a consent. In fact, the statement of the victim,
which has been recorded while giving the history before the
independent person/doctor of the General Hospital, Sola, itself
suggested the prima facie case. Not only that having regard to the
further statement as to what has transpired and considering the
gravity of the evidence and the observations made by the Hon’ble
Apex Court in the case of State of Punjab Vs. Gurmit Singh and
others reported in AIR 1996 SC 1393 and in the case of
Rajinder alias Raju Vs. State of Himachal Pradesh reported in
(2009) 16 SCC 69, the present application cannot be
entertained even though, charge sheet has been filed. Considering
the gravity of the offence as well as the manner in which it is
alleged to have been committed, present application deserves to be
rejected and accordingly, it stands rejected. Rule is discharged.
(RAJESH H. SHUKLA, J.)
shekhar/-
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