Petitioner Arrested under Sections 341, 323, 376, 354, 504, 506, 120-B/34 IPC was released on bail upon furnishing bail bonds: High court of Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.355220 Arising Out of PS. Case No. 288 Year 2019 Thana BARARI District Katihar Md. Tofik Alam male aged about 25 years S o Abdul Salam resident of village Marghia Nicha Tola P.S. Barari District Katihar The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. Raghib Ahsan Senior Advocate with Mr. Bipin Kumar Advocate Mr. Md. Arif APP For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Date : 20 07 2021 The matter has been heard via video conferencing. 2. Heard Mr. Raghib Ahsan learned senior counsel along with Mr. Bipin Kumar learned counsel for the petitioner and Mr. Md. Arif learned Additional Public Prosecutor hereinafter referred to as the ‘APP’) for the State 3. The petitioner apprehends arrest in connection with Barari PS Case No. 2819 dated 11.09.2019 instituted under Sections 341 323 376 354 504 506 120 B 34 of the Indian Penal Code and 4 of the Protection of Children from Sexual Offences Act 2012 4. The allegation against the petitioner is that he had committed rape on the informant and thereafter he continued to maintain physical relationship on the pretext that he would Patna High Court CR. MISC. No.355220 dt.20 07 2021 marry her and later it is alleged that she had pain in stomach and had gone to the father of the informant who had inappropriately touched her and told her that if she gets into physical relationship with him then he would get her married to his son. 5. Learned counsel for the petitioner submitted that only to exert pressure on the petitioner to marry her this false case has been lodged. It was submitted that it is unbelievable that a father would tell a girl that if she gets into physical relationship with him he would get her married to his son Further it was submitted that the medical report discloses that she is 17 18 years old and not 16 years. Learned counsel submitted that in the statement before the Court under Section 164 of the Code of Criminal Procedure 1973 which was recorded on 16.09.2020 she has stated that the petitioner again committed rape on her on 15.09.2019. It was submitted that such claim is falsified for the reason that from 13.09.2019 to 16.09.2019 she was in the police station in the custody of Mahila Police Constable Neha Kumari and Mahila Chaukidaar Taleshwari Devi and thus there is no question of the petitioner committing rape on 15.09.2019. It was submitted that no date of even the Jalsa meeting in which for the first time it is said that she was taken to Patna High Court CR. MISC. No.355220 dt.20 07 2021 a field and raped by the petitioner has been mentioned. Learned counsel submitted that even the allegation that she was in Jalsa and was taken to a field by Sawana Khatoon and Tajkesh Kahtoon where the petitioner was present and rape was committed is unbelievable for the reason that no such act would be committed by any person in presence of his two sisters. It was submitted that in the FIR it has been stated that two sisters of the petitioner had called her and had taken her to the field where the petitioner was present whereas in her statement under Section 161 of the Code before the police she has stated that the petitioner had taken her to the field on the pretext of introducing her to his sisters where he had committed the crime. Learned counsel submitted that in the statement under Section 164 of the Code also she had stated that the petitioner had taken her to the field where his two sisters were present and thereafter she had stated on 15.09.2020 that she was again raped in the Madrasa Thus it was submitted that there is enough discrepancy in the statements of the informant to indicate the falsity of the allegation and most importantly with regard to the allegation that the petitioner again committed rape on her on 15.09.2019 during such period she was in the custody of two female constables at the police station. It was submitted that the Patna High Court CR. MISC. No.355220 dt.20 07 2021 petitioner has been falsely implicated only to exert pressure for marriage and that he has no other criminal antecedent 6. Learned APP from the case diary did not dispute the fact that the FIR version is that the sisters of the petitioner had called the informant to the field whereas in the statement under Sections 161 and 164 of the Code she has stated that the petitioner had taken her to the field. It was also not controverted that as per the statements rape was committed on the informant by the petitioner in the presence of his sisters and further that she was in the custody of two female constables from 13.09.2019 to 16.09.2019 when she was taken to the Court for getting her statement recorded under Section 164 of the Code. 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 of the Code and furtherthat one of the bailors shall be a close relative of the petitioner that the petitioner and the Patna High Court CR. MISC. No.355220 dt.20 07 2021 bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner and that the petitioner shall cooperate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or non cooperation shall lead to cancellation of his 8. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 9. The petition stands disposed off in the (Ahsanuddin Amanullah J

Summary: The petitioner was arrested in connection with Barari PS Case No. 288 of 2019 on the 11th of September 2019. Under section 341 IPC, Punishment for wrongful restraint”, section 323, “Punishment for voluntarily causing hurt”, section 376, “Punishment for rape”, section 354, “Assault or criminal force to woman with intent to outrage her modesty.” section 504, “Intentional insult with intent to provoke breach of the peace.” section 506, “Punishment for criminal intimidation.” section 120-B, “Punishment of criminal conspiracy” section 34 IPC, “Acts have done by several persons in furtherance of common intention.”  and section 4 of the Protection of Children from Sexual Offences Act, 2012, “No child shall be detained in the police station in the night for any reason.” This Judgment was given in the high court of Judicature at Patna on the 20th of July 2021 by the Honorable Mr. Justice Ahsanuddin Amanullah in the case of Md. Tofik Alam v/s State of Bihar criminal miscellaneous No. 35522 of 2020, Mr. Raghib Ahsan represented as the senior advocate for the petitioner and Mr. Arif represented the state of Bihar as the additional public prosecutor. The following are the facts of the case, there was an allegation against the petitioner that he committed rape on the informant and he continued to maintain a physical relationship with her with the pretext that he will marry her, and later the informant complained of having pain in her stomach and after approaching the father who had also molested her and told her that he would get her married to his son only if she had a physical relationship with him. However, the counsel for the petitioner claimed that this is a false complaint and is being done to exert pressure on the petitioner to marry the informant. He submitted that it is unrealistic and unbelievable that an own father would molest his child and ask for a physical relationship. According to the reports, the informant was about 17-18 years of age. The counsel stated that under section 164 of Cr.P.C. The informant claimed that the petitioner again raped her on 15/09/2019 but the informant was held in police custody from 13/09/2019- 16/09/2019. And therefore the petitioner has not committed rape on 15/09/2019. The informant also claimed she was raped in a filed by the petitioner when she was called by his sisters and the counsel held that it was unbelievable for the reason that such an act would have not been committed in the presence of his sisters. The counsel held there was a lot of discrepancy in the statements of the informant and indicated the falsity of the allegation. The additional public prosecutor held no dispute regarding the discrepancy in the statements mentioned by the informant and filed in the FIR both the statements show that rape was committed on the informant by the petitioner and that’s what is essential for conviction.