Amit Kumar Kori vs State of U.P.

Hon''ble Ajai Lamba, J.—This petition has been filed praying for grant of bail in Case Crime No. 661 of 2011 under Sections 363, 366, 368, 376 I.P.C., Police Station Harchandpur, District Raebareily. Learned counsel appearing for the petitioner while relying on the statement of the prosecutrix, placed on record as Annexure-5, contends that even as per the stand of the prosecutrix in her statement recorded u/s 164 Cr.P.C., the petitioner treated her with respect and did not commit rape on her. Main accused of the incident, as per case of the prosecutrix are Ram awadh and Ram Prakash.

It has further been argued that the age of prosecutrix was about 16 years as per medical examination. The physical examination indicates that the prosecutrix was habitual of sexual intercourse. No injury on the person of the prosecutrix has been detected during medical examination.

Learned counsel appearing for the respondent-State has pointed out from Annexure-6 i.e. the statement of the prosecutrix u/s 161 Cr.P.C., that prosecutrix has made the allegation of rape even against Amit Kumar, petitioner.

I have considered the contention of Learned Counsel.

Investigation has been concluded and chargesheet has been filed. As per the stand of prosecutrix, after the main accused committed rape on prosecutrix, she stayed in the house of the petitioner for about two and half months. Even, the family of the petitioner was residing in the same house. Prosecutrix has clearly stated that the petitioner (Amit Kumar) kept her in his house properly. There is no allegation of rape by the petitioner.

Statement of the prosecutrix taken u/s 161 Cr.P.C. is subsequent in time in which prosecutrix states that Amit Kumar said to her that he would get married to the prosecutrix and he also had physical relation with her. The prosecutrix did not resist physical relations because Amit had promised that he would get married to her. The said fact was not stated before the Magistrate. She admits that Amit had made physical relation with her consent.

It has been pointed out by Learned Counsel for the petitioner that this version has come in the third statement of the prosecutrix taken u/s 161 Cr.P.C.

Considering the totality of the facts and circumstances of the case,

I find that in the statement of the prosecutrix recorded u/s 164 Cr.P.C., there is no allegation of rape as against the petitioner. Rather the petitioner is said to have been treated the prosecutrix well. The prosecutrix stayed with petitioner about two and half months and during the said period it does not appear that she raised any alarm. It would be for the trial court to consider the evidentialy value of statement recorded u/s 164 Cr.P.C. visa-vis the statement taken u/s 161 Cr.P.C., three times with contradictory stand.

Investigation has already been concluded. The petitioner is not the main accused, even as per the stand taken by the prosecutrix.

The petition is allowed. Bail to the satisfaction of the court concerned.