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Rape is just not forcible intercourse, it means to inhabit and destroy everything: Orissa High Court

Given the severity of the allegation and the witness of the accused who had been discharged before the trial was held and the above position arising from the application by the learned lawyer based on recorded material, I am not compelled to release the applicant on bail. The judgement was passed by the High Court of Orissa in the case of Gobinda Chandra Mallik v. the State of Odisha and anr [BLAPL No.6679 OF 2020] by Single Bench consisting of Hon’ble Justice S. K. Panigrah.

The facts of the case are that the petitioner dragged the victim to an under-construction house where he inappropriately touched the private parts of the victim. The cousin of the victim witnessed the whole incident and she was threatened by the petitioner of committing similar misconduct with her if she raises a protest. Thereafter the matter was reported to the local Sarpanch and on the advice of the said Sarpanch, the FIR was lodged by the mother of the victim e under Sections 341, 294, 506, 354-B read with Section 34 of I.P.C. and Section 12 of the POCSO Act, 2012.

Learned Senior Counsel for the petitioner, submitted that the petitioner is an innocent person and has been falsely implicated in this case by the Police. The petitioner has never committed the alleged offences and has no role to play in it. Learned Court below has rejected the bail application of the petitioner without taking into consideration the materials available on record and without applying its judicial mind. Further, the medical examination has been conducted on the victim and the said report reflects no sign of forceful sexual misconduct and the wearing apparels do not suggest any sign of forceful sexual act. Hence, the petitioner should be granted bail.

One of the main contentions was cleared by referring to Mohd. Imran Khan v. NCT of Delhi, wherein it was held that “it is trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act, 1872.”

While dismissing the petition the court observed that “it appears that offences under the Indian Penal Code, are made out, though it needs to be further investigated as the investigation is still inconclusive. A perusal of the FIR and charge sheet filed in the present case shows that there are very specific allegations against the Petitioner who is arrayed as accused. It is not, as if, the allegations are casual and sweeping against the accused generally. The possibility of coercion of victim’s family, repetition of similar type of offence and flee from justice cannot be ruled out and therefore, the petitioner should not be granted bail at least until the investigation is complete.”

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