Requirement of the certificate provided by a doctor confirming rape is not essential in every case: HC while denying bail to gang rape accused

  

On 13^th July, a bench of Allahabad High Court consisting of Justice Vikas Kunvar Srivastav held that since the minor deceased victim narrated the incident of gang rape committed by the accused persons to her father, mother and uncle before her death therefore that narration had assumed the status of dying declaration explaining cause of her death. Moreover, the court held that the requirement of certificate provided by a doctor in respect of such state of deceased is not essential in every case.

The court finding manner in which the offence is committed, the nature and conduct of the accused-applicants, all are sufficient to raise apprehension of abusing their liberty held that their release on bail at this stage cannot be considered.

Facts of the case:

The present two bail applications for releasing the accused persons on bail are moved before this Court under Section 439 of the Cr.P.C. The accused-applicants, Pankaj Kori and Dharmendra Yadav moved their bail applications before the Special Judge, POCSO Act which were heard and rejected by a consolidated order dated 19.08.2020. The facts of the case is that a complaint was writing against the accused persons was got written by the informant-father of a minor who was allegedly raped the two accused and thereafter forcibly poised her.

Contention of the Accused: 

Learned counsels of the accused made the following submissions:

1. It was argued that the complainant’s daughter had fallen in severe stomach ache and she died in the house as she got diarrhea and thus requested the court not to proceed for legal any action.
2. It was argued that the prosecution did not try to identify the accused-applicant who allegedly committed offence of rape upon the victim.
3. It was submitted that argued that there is no corroboration of the alleged statement of victim by other evidences. There is no independent witness, therefore, it does not deserve to be relied on and believed.
4. It was also argued that neither the inquest report nor the post mortem report has affirmed the sign of gang rape, therefore, allegations lacks for want of medical evidences.

Contention on behalf of the prosecution:

Learned A.G.A., on the other hand, argued that accused-applicants are not innocent on the following ground:

1. It was submitted that the whole incident on telephone to her father and to the mother and uncle and all of them have stated the same without any contradiction to the Investigating Officer.
2. Learned A.G.A. further submitted that the entire situation reveals the high handedness and collusion; there is no whisper of examining the private parts while making autopsy over the dead body of deceased.
3. Learned A.G.A. further argued that this is established by law that if the medical evidence is in deviation with the oral statement of witness particularly the statement of the victim who is at the pedestal of injured witness, the same could not be disbelieved even the medical report is liable to be discarded.

Observation and Judgement of the court:

The Hon’ble bench of the court made the following observation:

1. The deceased victim narrated the incident of gang rape committed by the accused persons to her father, mother and uncle before her death. After her death that narration has assumed the status of dying declaration explaining cause of her death. Moreover, requirement of certificate provided by a doctor in respect of such state of deceased is not essential in every case.
2. There is no mutual contradiction, deviation or material contradiction in the statements of mother, uncle and the father.
3. The offence against the accused/applicant bears a reverse burden of proof, therefore, their argument as to the lack of evidences against them for proving the offence committed by them is not tenable.
4. In case of release on bail of the accused may adversely affect the witnesses and the family of the victim's so as to effect the trial.

Based on the above, the court rejected the bail application of the accused. 

 Read Judgment ;

 

 

 

SOURCE ; .latestlaws.com

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