MUKESH Vs. STATE

JUDGEMENT

(1.) THIS is an application u/s 439 Cr.P.C moved by the petitioner for regular bail in case FIR No. 406/2012 u/s 376/328 IPC, P.S. Sun Light Colony.

(2.) IT is the case of prosecution that petitioner was the neighbour of the prosecutrix and was known to her for the past two years. They used to visit each other. It is alleged that the petitioner had called the prosecutrix to his house for curing her stomach pain; prosecutrix went to his house and was told that there was a stone in her stomach. He asked her to lie down and said that he knew how to remove the stone from her stomach. Then he blindfolded the prosecutrix and gave her something to drink; she drank the same, after which she was not aware of what happened to her.

(3.) IT is submitted by learned counsel for the petitioner that the allegations in the FIR are absolutely false and baseless. It was submitted that there are contradictions in her statement u/s 161 Cr.P.C and 164 Cr.P.C; there is considerable delay in lodging the FIR. It is inconceivable that a lady having pregnancy with five months foetus is unaware of the same till the time of its delivery. In her initial statement, she had stated that when the petitioner gave her the medicine, she became unconscious and did not know what happened to her. It is only at the fag end of her complaint that she alleges that she became pregnant due to rape committed by the petitioner. Prima facie there is nothing on record to prove that the foetus belonged to the petitioner. No medical proof including DNA is there on record. The material witnesses have already been examined; petitioner is not a previous convict and is having roots in the society; there is no likelihood of his absconding or fleeing from justice or tampering with prosecution evidence, as such, he be released on bail. There is considerable delay in lodging the FIR and the allegations are vague. It is not disclosed as to when for the first time, petitioner gave her something to drink on the pretext of giving medicine and moreover in the FIR there is no allegation that it was repeated in future, which the prosecutrix has tried to depose in her deposition. Furthermore, at least at the time of delivery on 21.09.2012, the prosecutrix and her father came to know about the pregnancy, yet the FIR was registered on 09.12.2012 i.e 18 days thereafter, without explaining the reasons for such delay.