Advocates:
['ATANU GHOSH', '', 'KAMLESH KUMAR SAHU', 'SHASHANK THAKUR', 'A G', '', 'Ravindra Sharma OBJECTOR', 'H V SHARMA', 'Amrita Sharma', 'RAKESH KUMAR MANIKPURI']

1

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

MCRC No. 741 of 2021

•

Ishwar Kathe S/o Dhanau Kathe, aged about 23 years, R/o Village

Bhadra,P.S. Pamgarh, District Janjgir- Champa (C.G.)

---- Applicant

Versus

•

State of Chhattisgarh the Station House Officer, P.S. Pamgarh,

District Janjgir- Champa (C.G.)

---- Non applicant

For Applicant

: Mr. Atanu Ghosh, Advocate

For State

: Mr. Sudeep Verma, Deputy Govt. Advocate.

For Objector

: Mr. R. K. Manikpuri, Objector

Hon'ble Shri Justice Narendra Kumar Vyas

Order on Board

29.06.2021

1. The applicant has preferred this first bail application under Section 439

of Code of Criminal Procedure, 1973, for grant of regular bail as he is

in jail since 3.11.2020 in connection with Crime No. 449/2020,

registered at Police Station Pamgarh, District Janjgir-Champa (C.G.)

for commission of offence punishable under Sections 376 read with 34

of I.P.C and Section 4 of POCSO Act.

2. The prosecution case in brief is that on 01.11.2020, FIR has been

lodged by the prosecutrix stating that on 15.12.2018 when she went to

answer the nature's call the present applicant alongwith other co-

accused have committed sexual intercourse with her against her will

and thereby committed the aforesaid offence.

3. Learned counsel for the applicant submits that the applicant has been

falsely implicated as he has not committed any offence. The date of

incident is mentioned in the FIR is 15.12.2018 whereas the FIR has

been lodged on 1.11.2020, hence, there is delay of almost two years in

2

lodging the FIR. He further submits that the false FIR has been lodged

because of the enmity by the complainant side. He also submits that

applicant is in jail since 3.11.2020. It is lastly submitted that MLC report

of the prosecutrix does not support the case of the prosecution in

which doctor has opined that there was no injury found in the private

part of the prosecutrix and hymn was also intact. Therefore, the

applicant is entitled to be released on regular bail.

4. On the other hand, learned State Counsel opposes the prayer for grant

of bail and submits that the statements of prosecutrix recorded under

Sections 161 & 164 of Cr.P.C. are clearly against the applicant. He

further submits that the age of the prosecutrix is less than 16 years on

the date of incident. The medical examination of the prosecutrix has

been done after two years from the date the incident, hence, there is

no possibility of finding any recent injury or no opinion can be given

regarding recent intercourse. The delay in lodging the FIR has been

explained properly by the victim in her statement wherein she stated

that even after the incident the applicants continued committed

illegality with her which has compelled her to register the FIR.

5. Considering the submission that the FIR delayed by two years

although the FIR is delayed about two years, but the prosecutrix has

attempted to explain the delay which shall be subjected to examination

in the trial whether such explanation is acceptable or not. Secondly, the

statement of allegation against this applicant is direct and thirdly,

intactness of hymen alone is not sufficient to draw conclusion that the

offence of rape has not occurred. The delay in lodging an FIR in a rape

cases is not of much “significance” as the victim has to muster courage

to come out in open and expose herself in a “conservative social

milieu”. It is also a matter of common law that in Indian Society any girl

or woman would not make such allegations against a person as she is

fully aware of the repercussions flowing therefrom. If she is found to

be false, she would be looked by the society with contempt throughout

her life. For an unmarried girl, it will be difficult to find a suitable groom.

Therefore, unless an offence has really been committed, a girl or a

woman would be extremely reluctant even to admit that any such

incident had taken plac