RANDHIR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the applicant, learned counsel for the complainant, Shri Sanjay Kumar Dwivedi and learned A.G.A. for the State and perused the record. N.C.R. under Section 498 IPC was registered with the police of police station Baldeo, district Mathura on the application made by informant, Mohan Singh against accused Tej Pal @ Akka, Randhir Singh (applicant) and Raju. The allegation made in the said N.C.R. is that the aforesaid three accused persons have enticed away his wife who has three issues from him and detained her with criminal intent that she may have illicit intercourse with them and concealed/detained her with that intent for about five days. Thereafter, somehow or the other, she managed to escape and reached to her husband's house, to whom, she narrated the aforesaid incident including the fact of committing rape upon her by the named accused persons. Thereafter, an application under section 155 (2) Cr.P.C. was made by the husband of the victim by improving the case as to constitute the offences punishable under Sections 363, 376 and 506 IPC. Learned Magistrate allowed the application and directed the Officer In-charge of the police station concerned to register and investigate the case. Accordingly, the case was registered under Sections 342, 364, 376, 392, 506 IPC. During the course of investigation, the prosecutrix was interrogated under Section 161 Cr.P.C. and was examined under Section 164 Cr.P.C. After completing the investigation, I.O. has submitted the charge-sheet against all the three accused persons, named in the N.C.R. under Sections 342, 364, 376, 392, 506 I.P.C.

(2.) LEARNED counsel for the applicant has argued that the applicant is innocent. He has committed no offence. He has falsely been implicated in this case. He has further submitted that the prosecution story is unnatural and improbable in as much as the two real brothers including the applicant have been named in this case as accused and they have been alleged to commit rape upon the prosecutrix simultaneously one by one. He has further submitted that there is an inordinate delay of two days in lodging the N.C.R. According to the prosecution, prosecutrix returned on 8.7.2012 and application under Section 155 (2) Cr.P.C. was made by the complainant on 12.7.2012. He has further submitted that there is a material contradiction on the point of mode and manner of kidnapping or enticing away the prosecutrix by the accused persons inter-se in the N.C.R, in the statement of the prosecutrix recorded under section 161 Cr.P.C. and in her statement recorded under Section 164 Cr.P.C. In the N.C.R. it has been stated that the wife of the complainant was enticed away from his house by the accused persons. In her statement recorded under Section 161 Cr.P.C. she stated that accused persons asked her to follow them on the pretext that her husband had met an accident and therefore prosecutrix suo moto followed them while in her statement recorded under Section 164 Cr.P.C. she told that on the date and time of the incident, she was forcibly put in a vehicle by miscreants who took her to Saidabad on pistol point. In the application made under Section 155 (2) Cr.P.C. it was stated that prosecutrix was recovered by the police on 8.7.2012 at 12.30 hours from the possession of the accused persons including the applicant but police says that prosecutrix was not recovered by the police from the possession of the accused persons rather prosecutrix suo moto returned to her house. Lastly, he argued that admittedly NCR was registered under Section 498 IPC and as per the provision contained in Section 198 Cr.P.C, no court shall take cognizance except on the complaint for the offence alleged which is punishable under Section 498 IPC. As regards the improvement made to aggravate the offence bringing it within the purview of Sections 363, 376, 506 IPC he argued that such application discloses the commission of a cognizable offence, therefore, Section 155 (2) Cr.P.C. was not attracted rather the application should have been made under Section 156 (3) Cr.P.C, therefore, the order passed for registration & investigation of the case is bad in law. Per contra, learned counsel for the complainant and learned A.G.A. have opposed the bail. There appears substance in the contention of learned counsel for the applicant that aforesaid facts and circumstances of the case entitles the applicant to bail. Application for bail is, therefore, allowed.