Dharmesh @ Tiku Bhogilal Jani vs State of Gujarat

A.L. Dave, J.—The applicant is facing charges for offences punishable under Sections 354, 376, 342, 324, 506(2), 509 and 511 of the Indian Penal Code and Section 135(1) of the Bombay Police Act. Learned Advocate for the applicant submitted that this a post charge sheet application and the applicant is in jail since 28th February, 2006. According to the learned Advocate for the applicant, the material collected by the Investigating Agency, forming part of the charge sheet, would, at the most, make out a case of outraging the modesty of a woman, which is a bailable offence. He submitted that the victims conduct and the statements of her husband and Minaxiben do not speak of any attempt of rape. The manner in which the incident is alleged to have occurred may also be taken into consideration and the applicant''s plea for bail may be accepted.

Learned Additional Public Prosecutor, Mr. Prachchhak, has opposed this application. According to him, the allegations are of serious nature. The time and place at which the incident has occurred would indicate that the victim lady was in a helpless condition when the incident occurred and whatever is stated may not have been narrated by the witness in the same language and in the same manner, they being women and, therefore, the application may be rejected.

This Court has considered rival side contentions and in light of the observations that would be made in the following lines, at this stage, this Court is not inclined to entertain this application.

For considering the submissions made by learned Advocate for the applicant, this Court would be required to enter into the arena of appreciation of evidence as to why the victim did not react to the alleged action till the last stage came. It would also be not possible for this Court, at this stage, to say that because the allegations do not specifically speak of an attempt to rape, the act cannot be said to be an attempt to rape. The incident has occurred in early morning hours in the victim''s own apartment house when any lady would be in a vulnerable position. Indian society is yet to embolden itself in giving full and picturesque description of such acts and, at this stage, in the opinion of this Court, only on such fragile arguments, the application cannot be accepted. Hence, rejected.