Point of Law: Offence of Rape – Bail granted - Definition of "rape' as defined under Section 375, wherein act of rape has been defined and is subjected to Exception no. 2 of said act. No injury was found on body of victim – Court find that it to be a fit case for grant of bail to accused/ husband.

JUDGMENT :

1. Heard Sri Keshari Nath Tripathi, learned counsel for the applicant, learned A.G.A for the State and informant counsel, Pawan Kumar Shukla and perused the record.

2. It has been argued by learned counsel for the applicant that applicant is innocent and he has been falsely implicated in the present case. It is further contended by learned counsel for the applicant that the F.I.R. was lodged on 08.09.2020, in Case Crime No. 337 of 2020, under Sections 498A, 323, 504, 506, 354 I.P.C and read with Section 3/4 Dowry Prohibition Act, Police Station Bhojpur, District Moradabad.

3. It is contended by the learned counsel for the applicant that the F.I.R was lodged on 08.09.2020, in Case Crime No. 337 of 2020, under Sections 498A, 323, 504, 506, 354 I.P.C and read with Section 3/4 Dowry Prohibition Act, Police Station Bhojpur, District Moradabad. After lapse of more than three months of the alleged incident, it was alleged that the accused/applicant and coaccused had demanded dowry coupled with torture and beating her badly resulting in breach of her modesty and it further alleged that the accusedapplicant, while demanding dowry from her, she was also subjected to unnatural intercourse, as such, the victim has fully supported the version of the F.I.R The statement if victim under Section 161 Cr.P.C was recorded in which, she has stated before the Investigating Officer as to what was revealed by her counsel. It is further contended that the statement of the victim recorded under Section 164 Cr.P.C. wherein, the victim did not utter anything about the unnatural intercourse being done by accused except the intercourse done by the accused-applicant. It is contended that it is purely a family dispute, and the F.I.R of the alleged incident was lodged belatedly and no explanation thereof was given for the delay. It is further contended that as per amendment of Section 375 I.P.C the definition of 'rape' includes so many things also. It is contended that as per Explanation 2 Appended to the Section aforesaid revealed about the sexual intercourse with his own wife and the wife shall not be under fifteen years of age is no "rape". It is further argued keeping in view of the above facts and circumstances of the case offence punishable under Section 315 I.P.C, is not made out. It contended that Section 315 of I.P.C was amended and was substituted by Criminal Law Amendment Act No. 13 of 2013 and the present case has taken place in the year 2020, therefore this case squarely covered by the aforesaid act. It is further alleged that there is no criminal history of the accused and has prayed that the accused-applicant be enlarged on bail. It has been lastly argued that she is languishing in jail since 17.11.2020, having no criminal history and that in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

4. Learned A.G.A. has opposed the prayer for bail and has contended that in F.I.R. the allegations of demand of dowry, harassment and breaching of modesty of the victim has been alleged and it is further alleged that brother-in-law and brother of the accusedapplicant also used to breach the modest of the victim and committed unnatural offence upon the victim several times.

5. Learned A.G.A has not disputed the statement recorded under Section 164 Cr.P.C of the victim and the victim has not deposed that brother-in-law of the accused and brother of the accused committed sodomy on her.

6. I have perused the facts and material available on record and has found that it is matter of family dispute and initially in the F.I.R. the victim has alleged that applicant-accused with co accused brother-in-law and brother has demanded dowry and has committed sodomy and modesty upon her, but in the statement recorded under Section 164 Cr.P.C, the victim has confined herself regarding the demand of dowry and breach of modesty and harassment and has also confined the act of sodomy and has stated that offence of sodomy was c