BHAVESHBHAI PRATAPBHAI KHUMAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application has been preferred under Section 439 of the Code of Criminal Procedure, 1973 in connection with the offence being CR No.I-33 of 2015 registered with Savarkundla Town Police Station, for the offences u/s. 376 and 342 of the Indian Penal Code and Sections 4, 6 and 8 of the POSCO Act.

(2.) Brief facts of the case are such that the complainant victim and present applicant were living at the same place in which the father of victim was tenant. On 17.5.2015, at around 14:30 hrs, at noon, the present applicant went to the house of the victim and told her that her mother is calling her and when the victim went to the house of the present applicant, at that time, the victim was taken by the applicant in the bedroom and the applicant forcefully removed the cloths of the victim. It is also in the knowledge of the applicant that the victim is a minor, even though he had tried to intercourse with her.

(3.) Learned advocate Mr. Thakkar appearing on behalf of the applicant submitted that the applicant is an innocent person and he has been wrongly implicated in the offence alleged. He also submitted that the the father of the applicant told the father of the victim to vacate the house, but they are inclined to vacate the same and therefore, some dispute regarding the same took place and therefore, the complaint in question is filed with a view to rope the applicant in the offence. He also submitted that the panchnama of place of offence is drawn and the muddamal articles i.e. bed cover, cloths of victim etc. were sent to FSL. He also submitted that the complaint is filed due political pressure as the father of the victim, having close relationship with the member of Parliament and President of Municipality. He also submitted that the victim was sent to the medical expert for medical examination and certificate is annexed with the papers of charge-sheet. From the papers of the charge-sheet, it appears that no external or internal injury is found by the expert and even no signing of injury on the body of victim and any semen on the cloth or anywhere was found during the course of medical check up. Even the medical certificate reveals that no one finger gap is present. He also submitted that from the papers, it is not prima facie established that the incident in question is occurred. Even the medical officer advised to refer the victim to the gynecologist but she was not referred and therefore, in absence of evidence or statement of gynecologist, the offence of rape cannot be said as committed by the present applicant. No doubt, the prosecution has applied the offence of POSCO Act against the applicant, but there is no corroborative piece of evidence, which links the applicant to the alleged offence. He also submitted that the father of victim has intentionally lodged the complaint against the applicant due to animosity on the issue of vacating the house. He lastly prayed to grant the bail to the applicant by imposing suitable conditions.