Point of Law:
When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

JUDGMENT :

1. Heard Sri R.P.S. Chauhan, learned counsel for the applicant and Sri Manu Raj Singh, learned A.G.A. for the State.

2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant, Ram Ladaite @ Shaukeen, seeking enlargement on bail in S.S.T. No. 1765 of 2019, arising out of Complaint Case No. 102 of 2019, under Section 376-D Indian Penal Code, 1860, Section 6 of The Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station Ujhani, District Budaun.

3. Notice was issued to the opposite party no. 2 vide order dated 12.06.2020. As per office report dated 15.07.2020 placing reliance on the report of the Chief Judicial Magistrate, Budaun, dated 06.07.2020 notice has been served on the opposite party no. 2. No one appears on behalf of the opposite party no. 2 even in the revised list.

4. The present case arises out of an application dated 07.05.2019 which was filed by the opposite party no. 2 under Section 156 (3) Cr.P.C. before the Additional District Judge-VIII, Budaun titled (Maina Devi vs. Shaukeen and Another), P.S. Ujhani, District Budaun for offences under Section 452, 376-D Indian Penal Code, 1860 & 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and The Protection of Children from Sexual Offences Act, 2012 which was directed to be treated as a complaint by the concerned Court. Subsequently, the statement under Section 200 Cr.P.C. of the complainant, Smt. Maina Devi, under Section 202 Cr.P.C. of the victim/prosecutrix, Brijpal the husband of the complainant and father of the victim was recorded under Section 202 Cr.P.C. Vide order dated 02.09.2019, a copy of which is annexed as Annexure-3 to the affidavit, the applicant and co-accused Ranjeet were summoned under Section 376-D I.P.C., Section 6 of The Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to face trial.

5. Learned counsel for the applicant argued that the occurrence in the present matter is alleged to have taken place on 22.04.2019 for which the application under Section 156 (3) Cr.P.C. which was treated as a complaint was filed on 07.05.2019 after a delay of 15 days of the said incident. It is argued that the delay is fatal to the prosecution and is unexplained. The moving of the application under Section 156 (3) Cr.P.C. is an afterthought. It is further argued that no medical examination of the prosecutrix has been conducted which would corroborate the prosecution version. He further argued that the valuable right of the applicant/accused under Section 53-A Cr.P.C. has been violated as he has not been subjected to any medical examination. It is further argued that the prosecution has withheld relevant and important piece of evidence i.e. the public witnesses and as such the accused is entitled to get the benefit of Section 114(g) of Indian Evidence Act.

6. Arguing on merits of the matter, learned counsel for the applicant has argued that in the complaint it is mentioned that the said incident had taken place at around 4.00 a.m. which has been later on shifted to 10.00 a.m. by the complainant in her statement recorded under Section 200 Cr.P.C. It is further argued that the victim/prosecutrix has not given the exact time when the said incident has occurred. It is then argued that the husband of the complainant and father of the victim who was also examined under Section 202 Cr.P.C. has given the time of occurrence as that at about 9.00 a.m. and it is thus argued that the prosecution has failed to give the correct time of occurrence in the present matter. It is further argued that there are various and substantial contradictions in the prosecution version particularly relating to the location of the house of the accused for which it is argued that