BAHADURSINH KANUBHA RATHOD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE . Learned APP waives service of notice of rule on behalf of respondent ­ State.

(2.) HEARD learned advocate Mr.Harish K. Barot for the applicant, learned advocate Mr. Ashish M. Dagli for respondent No.2 and learned APP Ms. Jirga Jhaveri for respondent No. 1, 3 and 4.

(3.) THE sum and substance of the submissions made by the applicant is to the effect that though his daughter is only 17 years of age and that there is clear evidence that accused has kidnapped and raped her, only because of the reason that near relative of respondent No.2 is in police department, the investigating agency has not bothered to investigate the offence earliest and in proper manner. It is also argued that for the same reason even after arrest of the accused ­ respondent No.2, prosecuting agency has not bothered to see that no bail can be granted to a person, when specific evidence of commission of offence is there and more particularly victim is of 17 years only and therefore applicant has prayed for cancellation of bail. To confirm such allegation, applicant has filed additional affidavits on 11.04.2013 and 27.06.2013 confirming the allegations in his pleadings while making specific averments on oath. With his affidavit dated 11.04.2013 applicant has also produced certified copies of relevant documents like First Information Report and police record as well as copy of remand application. The First Information Report categorically confirms that victim was minor on the date of incident being 14.10.2012 and there is specific allegation against respondent No.2 that he has kidnapped the daughter of the complainant. The First Information Report shows that initially offences under Sections 363 and 366 of the Indian Penal Code were disclosed but on 11.03.2013, when accused and victim were caught, it has come to the knowledge that offence under Section 376 was also committed by the accused and therefore, such section was also added. By application dated 12.03.2013 while seeking police remand, the complainant has categorically disclosed the history of the offence and activities and mis-deed by accused and thereupon Court had allowed the remand application directing to take accused on remand for a day. However, thereafter by an order dated 25.03.2013 the learned Additional Sessions Judge had allowed the bail application considering that there is no adverse history and that victim was in love with the accused, as she has stated so to the doctor, who has examined her. The trial Court has also considered that even during the investigation the victim has denied to go to her parental home and confirms that she wants to stay with the accused for rest of her life and she has no objection, if sent to Woman's Protection Home. The Trial Court has also considered that applicant has his roots in the society and there is no possibility of his absconding pending trial or to abduct or disturb the witnesses. However, the trial Court has also observed that accused is the only earning member in the family and in his absence, his family will be in financial trouble. Therefore, to avoid pre-trial punishment to young mind, as in the prison he has to reside with hardcore criminals, the bail was granted. The trial Court has also relied upon the letters written by the victim to the accused before two years from the date of FIR, to consider that there was consent of the victim and thereby accused has not committed any offence. To arrive at such conclusion of granting bail, the Trial Court has relied upon the case of Jarnail Singh and Ors. Vs. State of U.P. Reported in IV (1994) CCR 2530.