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CR.MA/7508/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7508 of 2010
=========================================================
ARUN
SUBHASH KHANNA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR.DIPAK
B PATEL for
Applicant(s) : 1,
MR DEVANG VYAS, ADDL.PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
:03/08/2010
ORAL
ORDER
This is
an application preferred under Section 439 of the Code of Criminal
Procedure, 1973 by the applicant who has been arrested in connection
with CR No. I-25 of 2010 registered at Langhnaj police station,
District-Mehsana for the offence punishable under sections 376[g],
342 and 120B of Indian Penal Code.
Facts of
the case in brief are that the complainant lodged an FIR on
16.2.2010 against four accused persons including the applicant. It
is stated in the FIR that the complainant is studying in the first
year of college doing her B.Com in the L.D. Arts College,
Navrangpura. It is alleged in the FIR that before two days of the
filing of the FIR, complainant had finished her examination. It is
also alleged that nearby the house of the complainant, one Aysha
Manishbhai Pansuria [accused no.1] resides who happens to be close
friend of the complainant. Original accused no.1 asked the
complainant that one job is available and if the complainant is
interested she will make arrangement for the same. Thereafter, the
original accused no.1 called up the complainant and reminded her
about the job she offered and asked her about the same. The original
accused no.1 told her that she and the complainant have to go for the
job in the evening at around 6.00 p.m. Accordingly, original accused
no.1 went to the house of the complainant and after picking her up
at around 6.30 p.m. they left the house of the complainant. Original
accused no.1 told the complainant that the person about whom she had
discussed with her is staying in Mehsana Water Park and therefore,
they went to Mehsana Water Park. It is further alleged in the
complaint that on reaching Mehsana Water Park at around 8.00 p.m.,
both of them were standing near Janpath Hotel, situated opposite
Mehsana Water Park. During that time, original accused no.1 asked the
complainant to wait at that place and told that one person will come
to meet her and thereafter, she left the place. Thereafter, one
person as per the description given by the original accused no.1,
namely, Ravi Omprakash Dixit -original accused no.2 came from the
Water Park and met the complainant and introduced himself as Ravi
Omprakash Dixit and told that his boss is sitting in the water park
and thereafter he took the complainant to another person sitting in
the Water Park. It is further alleged that the complainant was told
by original accused no.2 that it was too late and that she was
required to stay in the hotel and accordingly, at 12.30 a.m., the
complainant was taken to nearby Hotel Janpath in room no. 115 by the
original accused no.2 wherein two persons who were already sitting
there were introduced by the original accused no.2 as his bosses.
They promised her to give her good job, but at the same time, they
informed her that she should have physical relationship with them and
when the complainant refused the same, they committed rape on her.
Mr D.B.
Patel, learned advocate for the applicant, submitted that the
prosecutrix has given different versions on 17.2.10, 19.3.10 and
9.4.10. Thus, considering the different versions given by the
prosecutrix, involvement of the applicant in the alleged commission
of offence is prima facie not indicated. There is nothing on record
to show that the prosecutrix was below the age of 16 years on the
date of the commission of offence. Thus, considering the aforesaid
aspect and the role attributed to the applicant who has not
participated in the alleged commission of offence, he deserves to be
enlarged on bail.
Mr
Devang Vyas, learned APP, representing the opponent State, while
opposing the bail application, submitted that the applicant is
involved in a serious offence of rape along with other accused. When
the offence is committed under Section 376[g] of IPC, mere presence
of the applicant at the scene of offence as per Explanation-1 given
under Section 376[2][g] is enough to attract the provisions of
Section 3765[2][g]. However, on perusal of the statement of the
victim and the statements of witnesses as well as medical
certificate, wherein history is given by the victim indicating the
involvement of the applicant in the commission of offence, no lenient
view be taken in the matter and the application deserves to be
rejected out of hand.
I have
heard Mr D.B. Patel for the applicant as well as Mr Devang Vyas,
learned APP for the opponent State, at length and in great detail. I
have also considered the role attributed to the applicant as
reflected in the FIR, police papers, statements of witnesses as well
as the statement of the victim. Medical certificate and the history
given by the victim are also carefully perused by me. On perusal of
the police papers, victim was below the age of 16 years on the date
of the incident in question. Considering her age and the manner in
which the offence is committed by the applicant along with other
accused, no lenient view can be taken in the matter. The victim was
given false promise of job and after taking her to Water Park at
Mehsana and subsequently to Janpath Hotel situated opposite Water
Park, rape was committed on her against her will and desire. It has
been strenuously urged by the learned advocate for the applicant
that the victim has given different versions and, therefore, the
complaint as well as the version wherein she has indicated
involvement of the applicant in the commission of offence requires to
be discarded. However, considering the age of the victim and the
manner in which the offence is committed by the applicant along with
other accused, the gravity of offence, punishment which can be
imposed in case of the conviction, I am of the view that no
discretionary relief can be granted to the applicant. Even the
medical certificate indicates involvement of the applicant in the
commission of offence. Thus, considering the totality of the facts
and circumstances of the case, the applicant is not entitled to claim
discretionary relief as prayed for in the application.
For the
foregoing reasons, there is no merit in the application and it is
hereby rejected. Rule is discharged.
[H.B.
ANTANI, J.]
pirzada/-
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