Court No. - 46 Case :- CRIMINAL APPEAL No. - 2978 of 2010 Petitioner :- Mohsin & Another Respondent :- State Of U.P. Petitioner Counsel :- S.K. Dubey Respondent Counsel :- Govt. Advocate Hon'ble Amar Saran,J.
Hon’ble S.C. Agarwal,J.
Heard learned counsel for the appellants, Sri I.B. Yadav, learned counsel for
the complainant, learned A.G.A and perused the judgement and record of the
lower court.
It is argued by the learned counsel for the appellants that initially the report
was lodged under Section 354 I.P.C and that owing to pressure , the case was
converted into one under section 376 I.P.C, in the statement of victim under
Section 161 Cr.P.C. No credence could be given to the allegation of rape
because of belated disclosure. It is further submitted that there is no medical
corroboration of the allegation of rape. One DW-1 Mohammad Siraj Uddint,
who has a shop near the place of occurrence has stated that the rape could not
have been taken place at the spot alleged .
Learned AGA opposed the prayer for bail and argued that this is a case of
gang rape in which the girl was pulled from the School at 1.30 P.M and
dragged to Budha Park and then gang raped by three accused which included
the present two appellants. As the girl was 35 Kg, the absence of injuries was
not important as she may not have had the courage to resist. The mere fact
that initially the girl had given the report under Section 354 I.P.C is not very
significant as in such matters. It was argued that only after mustering courage,
the girl made the aforesaid complaint of rape against the appellants. The
evidence of one witness DW-1 Mohd. Siraj Uddin before the court was
insufficient to dislodge the testimony given by the victim in her 161 Cr.P.C
statement and evidence in court. The fact that the appellants were on bail
during the trial is no ground to continue them on bail after conviction.
Having considered the submissions of the parties and without expressing any
opinion on the merits of the case, we are not inclined to grant bail to the
appellants. Hence their prayer for bail is rejected.
The hearing of the appeal is expedited. Office to prepare paper book
preferably within three months and to list the appeal for hearing thereafter
before the appropriate bench.
Order Date :- 12.7.2010
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