KALPESHBHAI @ BHAGO NARBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this application under Section 439 of the Code of Criminal Procedure, the applicants have prayed to release them on bail in connection with an F.I.R. being registered as C.R. No. 1 -101 of 2008 with Kosamba Police Station for the offences punishable under Section 376(4), 323 and 114 of the I.P.C. and Section 3(1), (12) and 3(2)(5)of the Atrocity Act.

(2.) THE brief facts of the case are one Bhartiben -the prosecutrix lodged the complaint in question before the Kosamba Police Station on 31.10.2008. In the said complainant, it was alleged that on 28.10.2008 at about 8:00 p.m., the prosecutrix had gone to the temple of Khodiyar Mata, situated on the outskirts of her village to perform puja along with the boys and girls residing in her vicinity. After performing Puja, the prosecutrix played 'Garba' with the aforesaid boys and girls. Pursuant thereto, when the prosecutrix went near a babool tree to answer the natural call, one Mitesh Dilip Varachiya and two un -known persons came near the prosecutrix, caught hold of her and shut the mouth of the prosecutrix with handkerchief. Then, these persons forcefully took the prosecutrix in the field of one Chandubhai Varachia and made the prosecutrix lie in one tractor which was standing there. In pursuance of that the aforesaid Mitesh Dilipbhai Varachia and two un -known persons, one by one, committed rape on the prosecutrix. In the meantime, since the handkerchief slipped from the mouth of the prosecutrix, she started shouting for help and on listening that one Bhalia Sukha -cousin of the prosecutrix rushed to the spot to rescue the prosecutrix. But, the aforesaid persons beat the prosecutrix and her brother and run -away. In pursuance of that the complaint in question was lodged and the present applicants were arrested. The applicants, therefore, preferred an application for bail being Criminal Misc. Application No. 1935 of 2008 before the court of the learned 3rd Additional Sessions Judge, Surat which was came to be rejected by the learned Judge on 2nd December, 2008. Hence, the present application.

(3.) MR . Y.S. Lakhani, learned. Sr. Counsel for Mr.Gondaliya, learned Advocate for the applicants has submitted that the applicants are innocent and they are wrongly roped in the offence in question. He has further submitted that the offence alleged to have taken place on 28.10.2008 whereas the complaint in question was lodged on 31.10.2008 i.e. after a delay of about three days and the delay has not been explained. He has submitted that the trial Court ought to have taken into consideration the fact that initially an application for commission of an offence punisheble under Section 354 of the I.P.C. was given and later on a complaint for the offences punishable under Section 376(4), 323 etc. were lodged by the prosecutrix, at the instance of her relatives and so called social worker, with a view to settle some personal score with the present applicants. He has submitted that the trial Court failed to take into consideration the fact that the present applicants are not named in the complaint and that no identification parade was carried out by the I.O. He has further submitted that the trial Court ought to have held that the story put forward by the prosecution is highly improbable and does not inspire confidence.