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Rakesh & Others v. State Of U.P. - CRIMINAL APPEAL No. 6668 of 2006 [2007] RD-AH 12257 (18 July 2007)


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Court No. 49

Criminal Appeal No. 6668 of 2006

Rakesh and others Vs. State

Hon'ble M. K. Mittal, J.

Appellants Rakesh, Suresh, Sanjay and Mahendra have prayed for release on bail during pendency of criminal appeal no. 6668 of 2006 filed by them against the judgement and order dated 26.10.2006 passed by Special Judge, Bijnor in S. T. No. 399 of 2001 whereby they have been found guilty and convicted under Sections 363, 366, 376(g) IPC and have been sentenced to undergo rigorous imprisonment up to ten years and fine has also been imposed on them with default stipulation.

Heard learned counsel for the appellants, l earned A.G.A. and perused the Trial Court record.

Brief facts of the case are that on 10.5.2000 in the morning at about 8-9 a.m. when the daughter of the informant was going to give examination in the school and had reached near Khari, accused Rakesh, Sanjay and Suresh forcibly kidnapped her and took her in D.C.M. 407 which was being driven by appellant Mahendra. She was taken to the house of Mahendra  in Bijnor where she was raped by all the four appellants one after the other. In the night she was taken to Lalwama and there also the accused Sanjay, Suresh and Mahendra committed rape on her. She was kept there for 4-5 days. Thereafter she was taken to Delhi in D.C.M. 407. Accused took a room on rent in Delhi and kept her there for 15-20 days and all the three Sanjay, Suresh and Mahendra used to commit rape on her in Delhi. When Suresh was bringing her back to Bijnor and  they had reached at Jatan crossing,  police reached and she was taken to police station. However, Suresh managed to escape from that place. She was medically examined on 1.6.2000 at 3.30 p.m. The medical officer did not find any injury on her person. According to radiological finding her age was assessed at 19 years.

Learned counsel for the appellants has contended that they have been wrongly implicated in this case and that there is no legal evidence against them and have been wrongly convicted. It has also been contended by the learned counsel for the appellants that the prosecutrix had gone of her own free will with the accused. He also contended that no injury was found on the person of the prosecutrix including her private part and it shows  that no rape was committed on her.

Learned A.G.A. has contended that the prosecutrix has given a positive statement about her kidnapping and the rape committed by all the four accused persons and that there is nothing in her cross examination to show that she is not speaking the truth. A suggestion was given to the prosecutrix  that she went of her own free will but she denied it. However, it has not been suggested as to with whom she had gone. It is also not the case of the accused that she had gone with all the four accused persons. He has also contended that if no injury was found on the person of the prosecutrix at the time of medical examination. Same is not material as she was kidnapped much earlier on 10.5.2000. Regarding the age, learned A.G.A. has contended that she was minor as according to her birth certificate date of birth is 6.2.1985 although the prosecutrix claims that she was a student of class 11 at that time and even if for arguments sake it is found that she was 19 years old there is lack of consent on her part and only on account of age it cannot be said that she was a consenting party.

Considering the facts and circumstances of the case, but without prejudice to the merits of the case, appellants are not entitled to be released on bail at this stage and their prayer is liable to be  refused and is hereby refused.

Dated: 18.7.2007



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