Point of Law: Bail Rejected - Rape - There is no doubt that liberty is important, even that of a person charged with crime but it is important for courts to recognise potential threat to life and liberty of victims/witnesses, if such accused is released on bail.

JUDGMENT :

Vikas Kunvar Srivastav, J.

1. The case is called out through video conferencing.

2. Learned counsel for the applicant, Sri Pramod Kumar Yadav, Advocate appears through video conferencing in virtual hearing and learned A.G.A. for the State, Sri Prem Prakash, Advocate also appears through video conferencing in virtual hearing.

3. The present bail application is filed on behalf of the accused-applicant-Monish, who is involved in Case Crime No.169/2020 under Sections 376 of I.P.C., registered at Police Station -Makhi, District-Unnao.

4. The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Sessions Judge, Unnao vide order dated 06.01.2021.

5. Stating the prosecution case against the accused, in brief, learned counsel stated the victim had gone out to urinate outside the house at 11:00 P.M. when the accused caught hold of her and raped her by dragging into the maize field. Noticing that she did not come back for a long time attending the call of nature in the house, her parents came out searching for her. They throwing torch light in the direction of victim’s cry coming from the field called her loudly, then the accused ran away leaving the victim in a hurry.

6. On investigation, after lodging of the first information report with above facts, the charge-sheet against the accused is submitted in the Court under Section 376 of the Indian Penal Code.

7. Learned counsel stated, accused-applicant is in jail since 11.9.2020 for no fault of him. He pressed the application for release of the accused on bail on the ground that the victim was over 18 years of age at the time of incident and had consensual sexual intercourse of with the accused. False allegations have been made by her against the accused under the pressure of the parents. Her medical examination confirmed her age over 18 years. Learned counsel further argued that her medical examination also did not confirm rape. Her hymen is already old torned suggesting, she is used to sexual intercourse. It has also been argued that there are material contradictions in her statements recorded under Section 161 Cr.P.C. by the Investigating Officer and that recorded by the Magistrate in Court under Section 164 Cr.P.C. As such, learned counsel vehemently pressed that the allegation of rape is neither supported with her statement nor from medical evidence.

8. Learned counsel lastly argued that the accused-applicant has no criminal antecedent and therefore he should be released on bail.

9. Learned A.G.A. opposing the prayer for bail argued, the victim girl is educated upto class 10. She was of 18 years of age when the incident of rape with her happened. Immediately, thereafter lodging the first information report whatever fact she had stated that finds no deviation and the same is reiterated in statement recorded under Section 161 Cr.P.C. and thereafter in statement under Section 164 Cr.P.C. Since there is no material contradiction in the statement, therefore, the credibility of allegation as to the rape committed on her by the accused is established. So far as the medical examination is concerned, the same was done after four days from the date of incident on 10.9.2020. Thereafter, sign of rape could not be found, old torned hymen is not sign of being a girl used to the sexual intercourse. It generally torns up with the age, the age of victim is 18 years, which is material for this particular fact.

10. He lastly argued that the 18 years old girl was an easy victim for a well grown adult male of more than 23 years who was well acquainted about her and her parents. The law does not permit the medical evidence to over ride the statement of the victim of rape if found credible. Here the statements of the victim is reliable and credible, therefore, the accused cannot set forth his innocence. Moreover, he is a local resident and competent to adversely affect the witnesses as well as to coerce the victim and her parents therefore the bail application mu