Gujarat High CourtTausifalam Taslimalam Tirmizi vs State Of Gujarat on 8 December, 2015Author:A.J.DesaiBench:A.J.DesaiR/CR.MA/19703/2015                                              ORDER




                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 19703 of 2015

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                     TAUSIFALAM TASLIMALAM TIRMIZI....Applicant(s)
                                      Versus
                          STATE OF GUJARAT....Respondent(s)
         ==========================================================
         Appearance:
         MR ND NANAVATY, LEARNED SENIOR COUNSEL ASSISTED BY MR YASH
         N NANAVATY, ADVOCATE for the Applicant(s) No. 1
         MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s) No. 1
         ==========================================================

                 CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

                                     Date : 08/12/2015


                                      ORAL ORDER1.          By way of present application, the applicant-
         original accused, who is facing charges for the offences
         punishable underSections 363,366,376(1),376(d),342and114of the Indian Penal Code, 1860 read withSections 3,4,5(g),16,17of the Protection of Children from Sexual Offences
         Act read with Section 3(2)(5) of the Prevention of Atrocities
         Act registered vide C.R.No.I-130 of 2015 with Maninagar
         Police Station, Ahmedabad City, has prayed to release him on
         regular bail during the pendency of the trial.2.          Pursuant to notice issued by this Court, Mr.Mitesh
         Amin, learned Public Prosecutor has appeared and assisted
         the Court by producing papers of investigation since the
         charge-sheet is filed.Page 1 of 7HC-NIC                                 Page 1 of 7      Created On Sat Dec 12 00:52:34 IST 2015
                 R/CR.MA/19703/2015                                            ORDER3.            The brief facts of these cases are that one
         Hansaben Nareshbhai Solanki, mother of the prosecutrix
         lodged an F.I.R. on 27.07.2015 with Maninagar Police Station
         of Ahmedabad City underSections 363and366of the IPC
         against unknown person alleging that her elder daughter-
         Poonam @ Pooja aged about 17 years and 8 months was
         missing.3.1           Subsequent to lodgment of the FIR, the daughter of
         complainant was traced by family friend namely; Jitesh and
         she was found on 28.07.2015 and was brought to the
         Maninagar Police Station. Her statements were recorded and
         thereafter, the investigating agency carried out investigation
         and   filed     charge-sheet    before        the       competent             Court.
         Subsequent to filing of the charge-sheet, the present applicant
         preferred     application   being         Criminal       Misc.        Application
         No.3716 of 2015 before the Special Judge (POSCO), Court
         No.4, Ahmedabad City and the same was dismissed by the
         learned Judge vide order dated 05.10.2015. Hence, the
         present application.4.            Mr.N.D.Nanavaty,            learned         Senior            Counsel
         appearing for the applicant, by taking me through different
         statements of prosecutrix, would submit that the prosecutrix
         has time and again changed her version and, therefore, she is
         not a reliable girl. He would submit that the prosecutrix, who
         was not ready and willing to return at home, remained one
         night in some commercial complex and thereafter remained
         another night in company with accused person at silver spring
         hotel wherein the offence alleged to have taken place. HePage 2 of 7HC-NIC                               Page 2 of 7      Created On Sat Dec 12 00:52:34 IST 2015
                 R/CR.MA/19703/2015                                            ORDER




         would further submit that initially the name of the applicant
         was not given by her, however, in her subsequent statement
         dated 29.07.2015, she has stated that other accused have
         committed rape at Silver Spring Hotel. She has categorically
         stated that the present applicant had only visited the said
         hotel in Room No.102 and there are no allegations of
         committing rape against the applicant. He would submit that
         the prosecutrix has subsequently alleged that the applicant
         had also committed rape, which creates doubts about the
         credibility of the girl who is almost 18 years of age. Therefore,
         the bail prayer of the present applicant made in the
         application may be allowed.5.          On the other hand, Mr.Mitesh Amin, learned Public
         Prosecutor has vehemently opposed the application and
         submitted that it is not in dispute that the age of the
         prosecutrix is below 18 years. He would submit that the
         incident of gang rape has taken place at the Silver Spring
         Hotel. Sufficient material including CCTV video footage has
         been collected by the Investigating Officer, wherein the
         present applicant has been found entering into the room
         No.102 where the alleged incident of rape has taken place. He
         would further submit that the prosecutrix is below the age of
         18 years and since she was subjected to gang rape by number
         of accused, she would not have been in a position to explain
         the incident in detail at initial stage. He would further submit
         that the present applicant has been identified by the
         prosecutrix when the test identification parade was held by
         the Executing Magistrate. He would further submit that the
         statement underSection 164of the Code of Criminal
         Procedure has been recorded wherein she was categoricallyPage 3 of 7HC-NIC                               Page 3 of 7      Created On Sat Dec 12 00:52:34 IST 2015
                 R/CR.MA/19703/2015                                                   ORDER




         stated that the applicant has also committed rape on her in
         the Room No.102 of Silver Spring Hotel. He would further
         submit that the allegations of rape against the present
         applicant have been made from the beginning and the name of
         the applicant is also referred in the statement of the
         prosecutrix recorded underSection 164of the Code of
         Criminal Procedure and, therefore, the prayer made by the
         learned   advocate          appearing         for      the      applicant           in        the
         application may be rejected.6.          I have heard the learned advocates appearing for
         the respective parties. It is not in dispute that the prosecutrix,
         who has been gang raped by several accused, is below the age
         of 18 years. Even if it is accepted that she was a consenting
         party, the same would not help in the provisions made underSection 375of the Indian Penal Code which defines the rape.
         The same reads as under:"375. Rape.-A man is said to commit "rape" if he-(a) penetrates his penis, to any extent, into the
                     vagina, mouth, urethra or anus of a woman or
                     makes her to do so with him or any other person; or(b) inserts, to any extent, any object or a part of the
                     body, not being the penis, into the vagina, the
                     urethra or anus of a woman or makes her to do so
                     with him or any other person; or(c) manipulates any part of the body of a woman so
                     as to cause penetration into the vagina,                              urethra,Page 4 of 7HC-NIC                                   Page 4 of 7         Created On Sat Dec 12 00:52:34 IST 2015
          R/CR.MA/19703/2015                                            ORDER




              anus or any part of body of such woman or makes
              her to do so with him or any other person; or(d) applies his mouth to the vagina, anus, urethra
              of a woman or makes her to do so with him or any
              other person,

              under the circumstances falling under any of the
              following seven descriptions:-First.-Against her will.Secondly.- Without her consent.Thirdly.-With her consent, when her consent has
              been obtained by putting her or any person in
              whom she is interested, in fear of death or of hurt.Fourthly.- With her consent, when the man knows
              that he is not her husband and that her consent is
              given because she believes that he is another man
              to whom she is or believes herself to be lawfully
              married.Fifthly.- With her consent when, at the time of
              giving such consent, by reason of unsoundness of
              mind or intoxication or the administration by him
              personally or through another of any stupefying or
              unwholesome       substance,           she        is      unable           to
              understand the nature and consequences of that to
              which she gives consent.Page 5 of 7HC-NIC                        Page 5 of 7      Created On Sat Dec 12 00:52:34 IST 2015
                 R/CR.MA/19703/2015                                             ORDERSixthly.- With or without her consent, when
                     she is under eighteen years of age.Seventhly.- When she is unable to communicate
                     consent.Explanation 1.-For the purposes of this section,
                     "vagina" shall also include labia majora.Explanation     2.-Consent         means          an      unequivocal
                     voluntary agreement when the woman by words,
                     gestures or any form of verbal or non-verbal
                     communication,         communicates                willingness              to
                     participate in the specific sexual act:Provided that a woman who does not physically
                     resist to the act of penetration shall not by the
                     reason only of that fact, be regarded as consenting
                     to the sexual activity.Exception 1.-A medical procedure or intervention
                     shall not constitute rape.Exception 2.-Sexual intercourse or sexual acts by a
                     man with his own wife, the wife not being under
                     fifteen years of age, is not rape."7.          The case would certainly fall under first, second,
         third and most importantly in the sixth circumstances which
         are referred hereinabove. She has categorically stated that
         against her will six accused have committed rape. Even if it is
         presumed that she has given consent, the applicant would notPage 6 of 7HC-NIC                                Page 6 of 7      Created On Sat Dec 12 00:52:34 IST 2015
                        R/CR.MA/19703/2015                                            ORDER




         entitle for any relief in view of the sixth circumstances which
         is defined underSection 375of the Indian Penal Code.8.                 As far as version of the prosecutrix is concerned, I
         am of the opinion that the girl has not attained the age of
         majority. I have considered the fact that she has given history
         before the Medical Officer where she was examined about the
         commission of rape. I have also considered the fact that CCTV
         video footage establishes the presence of the applicant-
         accused in Room No.102. It is pertinent to note that the bed-
         sheet where the offences are taken place have found semen
         stains. The clothes of the prosecutrix also found semen stains.
         It is also pertinent to note that the prosecutrix in her
         statement dated 15.09.2015 recorded underSection 164of
         the Code of Criminal Procedure has categorically alleged that
         the present applicant has also committed rape. As advised by
         the Hon'ble Apex Court, I am not examined the case in detail,
         however, prima facie, it is the case of gang rape committed on
         a minor girl and hence, the present application is meritless
         and the same is dismissed. Rule is discharged.(A.J.DESAI, J.)
         Ashish TripathiPage 7 of 7HC-NIC                                      Page 7 of 7      Created On Sat Dec 12 00:52:34 IST 2015