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Madan v. State Of U.P. - CRIMINAL APPEAL No. 1056 of 2006  RD-AH 15481 (6 September 2006)
Criminal Appeal No. 1056 of 2006
Madan Vs. State of U.P.
Hon'ble M. K. Mittal, J.
Appellant Madan has prayed for release on bail in Criminal appeal no. 1056 of 2006 filed by him against the order of his conviction passed by Addl. Sessions Judge, F.T.C. No. 3, Meerut in S.T. No. 944 of 2003 whereby the appellant has been found guilty and convicted under Sections 363, 366, 376 IPC and has been sentenced to undergo rigorous imprisonment up to seven years and fine has also been imposed on him.
Heard learned counsel for the appellant and learned A.G.A. and perused the record.
Encapsulating the prosecution case, on 7.8.2003 at about 10 a.m. the prosecutrix Km. Rina, aged about 13 years who had gone to take copies and books, was followed by the appellant and his mother and other relatives and was kidnapped. The handkerchief was put on her mouth and she became unconscious and was taken away. She was taken by the accused at different places and according to the prosecutrix accused committed rape on her. She was recovered from a room in Meerut which was taken by the accused.
Learned counsel for the appellant has contended that the appellant has been wrongly convicted and that the prosecutrix was not only major at the time of alleged incident but was consenting party. He has further contended that even no medical examination of the prosecutrix was got done for determination of her age, although it was recommended by the medical officer, who had initially examined the prosecutrix and had not found any injury on her person. Against it learned A.G.A. has contended that the prosecutrix was minor at the time of incident and in order to substantiate her age the prosecution examined Sunil Sharma who was working as Principal in Swami Vivekanand Junior High School, Meerut and he has stated on the basis of the school record that the date of birth of the prosecutrix was 3.7.1991. This witness was not cross examined inspite of opportunity given and therefore there is no reason to disbelieve the statement as given by this witness. If the C. M.O. did not get the age determined through the medical process, it will not affect the prosecution case. The prosecutrix has also stated in definite terms that she was about 13 years and that she was taken by the accused persons and his family members when she was going to take the books and that the accused committed rape on her. In her statement on oath, the prosecutrix has stated that the appellant was living in her neighbourhood and she knew him about one or two months prior to the incident and was not on visiting terms. She did not talk to him. She had also denied the suggestion that she used to go to the house of the appellant and used to talk to him on the roof of the house.
In the circumstances of the case but without prejudice to the merits of the case, I do not find it a fit case for bail at this stage. And the prayer of the appellant for release on bail is liable to be refused and his hereby refused. If any application is filed by the appellant for expeditious hearing of the appeal, same shall be listed for hearing.
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