UZAIR ALIAS MAHMOOD Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Verma, J. In this bail application, applicant Uzair alias Mahmood is involved in case crime No. 280 of 1994 under Sections 363/366-Ka/376/342/ 506, I. P. C. , Police Station Cantt, district Varanasi. Sri A. D. Giri, Senior Counsel has been heard on behalf of the applicant and Sri S. T. Siddiqui, Advocate representing the Central Bar Association, Varanasi has also been heard on behalf of the aforesaid Association. In public interest. It would be relevant to mention that though it was argued on behalf of the applicant that there is no public interest involved, however, Sri S. T. Siddiqui was permitted to make his submissions and has been heard at length.

(2.) ACCORDING to the first information report dated 18-5-1994 lodged at 3. 15 a. m. Smt. Madhuri Singh, complainant, mother of the victim was going alongwith her daughter Kajal Singh alias Sangita Singh aged about 16 years and his son Sunil Singh aged 10 years on 17-5-1994 on foot after returning from hispital in Banaras Hindu University at about 8. 00 p. m. when the appli cant alongwith another met them and cajoled them to accompany them because they were also going to Ballia where the complainant wanted to go. They took the complainant and the girl to hotel 'ideal Top' in the Cantt. Varanasi and offered to host a dinner. Thereafter, they locked the com plainant and her son in one room and took the girl in another room where they are said to have committed rape on her. Police came to the hotel on receiving information somehow and arrested the applicant and his associate.

(3.) IN reply it has been alleged that the statement under Sections 161 and 164, Cr. P. C. made by the victim are sufficient for the rejection of the bail. This contention is prima facie a very week plea in the face of the complaint lodged by the victim herself totally demolishing the prosecution version in support of which she has also made a statement under Sections 200 and 202, Cr. P. C. Assuming that these statements can only be used for corroboration or contradiction, the same is the position of the statements under Section 161 and Section 164, Cr. P. C. of the victim. It was also urged that filing of affidavits of the prosecution witnesses indicates tempering with evidence and should not be taken into account. For this proposition reliance has been placed on the decision in Jaswant Singh and others v. State of U. P. , 1994 JIC 219. It is true that there is a growing tendency now by the accused to procure affidavits but in the peculiar circumstances of this case where allegations are being made by the prosecutrix herself against the police personnel it would not be proper to ignore at least the statements under Sec tions 200 and 202, Cr. P. C. made by the prosecutrix in the complaint case.