RADESH KUMAR PAIKARA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Heard both the Counsel. This is an application under Section 439, Cr.PC filed by the applicant for grant of bail. He is an accused in Crime No. 64/2000 registered in Police Station, Kasdol, for the offences punishable under Sections 363, 366 and 376, IPC. Name of the prosecutrix is Uttara Kumari.

(2.) The case of the prosecution is that the applicant took away the girl from Village Datan to Sisdevari and from there to Bendari and Raipur and from there to Amodi and Tanaud and Nandiniya and forcibly committed rape on her. According to the case of the prosecution she was taken by the applicant from her house to his house on 11-12-1999 and thereafter on 12-12-1999 the applicant also took her to other places. The complaint was filed by the victim on 6-4-2000 after 3 months and 25 days of the incident. She has stated in the complaint that she was studying in VIIIth standard and the applicant was teaching in a school in Village Datan. She started loving him. He promised to marry her and told her that he would make her his wife. When she was sleeping in the night of 11-12-1999 the applicant went there and asked her to run away from the house. He threatened her to defame and assaulted her if she did not do so. At about 1.00 in the night he took her from her house to his house. Her father was sleeping outside in the Byara and kept her in his house on that night. When there was a commotion in the village next day the village Panch, Village Sarpanch, her father Bhaghirathi, Phuldar, Bansilal, Hemlal and the parents of the boy applicant advised both of them. The applicant said that he would take her and marry her and thereafter took her to Sisdevari and then to Bendari and thereafter to Amodi and committed rape on her and did Bura Kam as husband and wife. She did not oppose because he promised her to marry and keep her as his wife. He thereafter took her to Village Tanaud and thereafter to Village Nandiniya and ran away from there. Due to the social action and boycott and she being poor girl she did not lodge the report looking to her modesty and expecting that he would marry her.

(3.) Learned Counsel for the applicant submitted that the narration of the facts in the complaint lodged by the girl shows that she is a consenting party to the act committed by the applicant, if at all the applicant has committed any act. Except stating that the applicant has committed Bura Kam as husband and wife, she has not stated that the applicant committed rape on her. He submitted that according to the doctor's certificate the age of the girl was 17 years. According to Section 375 Sixthly of the Indian Penal Code, 1860 if act is committed with the consent of a girl above 16 years of age, it does not amount to any offence. He also submitted that the applicant was studying B.A. Part-I in Durga College, Raipur in March-April, 1999. He has produced the mark-sheet as Annexuer P-2. He also produced the mark-sheet for B.A. Part-III for March-April, 2000 as Annexure P-3 and mark-sheet of LL.B. Part-I Examination for March-April, 2001 as Annexure P-4 and submitted that the applicant was a student studying in Raipur and a fake case has been filed against him. He also submitted that the applicant surrendered himself before the Court on 15-4-2002 after coming to know that a case has been registered against him and he is innocent. It is not in dispute that the prosecutrix was examined by the doctor on 6-4-2000. A copy of the certificate has been produced by the applicant which is at page No. 56 of the file which shows the age of the girl as 17 years. On the next page this certificate also shows that the age of the girl was 16 years.