CHAMAN ALI Vs. STATE

JUDGEMENT

(1.) Smt. Babita Devi aged about 23 years is a married woman. She has two sons from her wedlock with Shri Hira Lal, aged about 3 years and 9 months. She was suffering form fever and for quite sometime she was also getting gidiness. She had been taking treatment for this. However some known person informed her that in Subhash Khand, Giri Nagar, there was one Chaman Baba who does 'Jharphukan" and by the said 'Jharphukan'she may get cured. On 22nd July, 1992 her husband took her to Chaman Baba. So many people had been visiting him. She was given a Token which indicated that her turn was at SI. No. 64 to see him. At about 12.15 noon her turn came when she entered the room of Chaman Baba, the accused in this case. About 4/5 people were already sitting there. He asked Babita to sit outside as he would give her water after having the same Thunkan'. After about 20/25 minutes she was called inside but her husband was not allowed to come with her. Even the 4/5 persons sitting there were asked to leave the room so that he could give her the treatment. He made her lie on the sofa and administered some substance by smelling which became insensible. After making her so, he bolted the door from inside and committed rape on her. She could not raise the alarm nor could cry because of the effect of that substance made her mute spectator.

(2.) It is in this back ground that the first information was lodged by Smt. Babita on 22nd July, 1991 alleging the rape committed on her by the petitioner. The present petition has been filed by Chaman Ali, the petitioner seeking bail, inter alia, on the grounds that the allegations of the prosecutrix are unbelivable. He treats with divine remedies almost 100 persons everyday. A number of patients were waiting outside the room therefore, there could not have been any chance for the petitioner to commit such an act. More ever she neither raised nor intimated about the rape to her husband immediately when she came out of the room. The FIR has been lodged after about 8 1/2 hours of the alleged incident for which there is no explanation. The petitioner was in fact severly beated by the police officials and this is a cooked up case against him. In fact the prosecutrix has been hired by Sardar Amarjeet Singh in order to make incriminating statement against the petitioner. The said Sardar Amarjeet Singh is a taxi driver and wanted to take revenge against the petitioner.

(3.) I have beared Shri K.G.Bhagat, Sr. Advocate for the petitioner and Shri A.K.Singh, Counsel for the State. It is an admitted case on record that the petitioner practices 'Jharphunkan'. In a way it can be taken curing by divine medicine or divine craft. This is also admitted case that Smt. Babita had gone to the petitioner on 22nd July, 1992 for getting cured from her illness. It is. also an admitted fact on record that she was given token in which her number was 64. it is also not disputed that she was called by the petitioner for purpose of giving 'Jharphunkan' inside the room. Now the question which arises for consideration is why would a married women level such a charge against the petitioner. While deciding the petition for bail, we have to see the evidence collected by the prosecution and not the defence set up by the accused. The evidence so far collected indicate that there was semen on the Patikot of Smt. Babita. Of course the report of CPSL so awaited. But the fact remains that this semen was lifted from her Petikot by the police on the same day on which she alleged that the repe was committed on her. Why she could not raise the alarm, she has explained the same in her own statement when she stated that "Mujhe Kuchh Cheej Sungha Di Jisse Main Behosh Jaissi Halat Me Ho Gai" meaning thereby he made her smell some substance as a result of which her condition became like that of a an-conscious person she became lifeless. She could not understand what was being done to her but became so helpless that she could not protest or resist against the same. She could not protest of his bolting the door from inside. For doing 'Jharphunkan' on a women he pretended that the door has to be closed for this nobody could have objected. Similarly, when rape was committed, she could not cry or raise alarm because she was in that stayte of mind where she could understand what was going on but was helpless because of the effect of that smelling. It is in this background that she could not raise the alarm. She has further stated that her husband was not allowed to go with her in the room. This circumstance coupled with her statement that she was made administered. Some smelling substance, prima facie, establishes that she was not in a position to raise the alarm as she had become mute spectator of this crime. As regards the contentions of Mr. Bhagat that there was a delay in lodging the FIR, to my mind, this argument has no force. In the peculiar facts of this case the delay has to be seen in the light of her family background and the trauma as alleged to have undergone. She has further stated that after leaving the room she wanted to run away from that place. She wanted to reach home so that she could mustered enough courage, strength to tell her husband as to what had happened to her. It is only when she collected courage and made her husband aware as to what happened with her that they decided to lodge a police report.