IN THE HIGH COURT OF JUDICATURE AT PATNA

(Criminal Appellate Jurisdiction)

I. A. No. …………….. of 2009

(Arising out of Cr. Appeal No. 55 of 2005) [D B]

In the matter of an application under

Section 389(2) of the Code of Criminal

Procedure

And

In the matter of;

Sanjay Kumar Khemka son of Sri Mangal Chand Khemka, Resident of

Village Dharmashala Road, P.S. Nougachhia, District Bhagalpur

………. Appellant/Petitioner

Versus

The State of Bihar ………… Respondent/Opposite Party

To,

The Hon’ble Sri Shiva Kirti Singh, the Acting Chief Justice of the High

Court of judicature at Patna and his companion justices of the said

Hon’ble Court.

The humble petition on behalf of the

petitioner above named.

MOST RESPECTFULLY SHEWETH:

1. That the present Interlocutory Application has been filed for grant of Bail

to the Appellant/Petitioner in connection with the conviction directed by

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Sri Ranjan Kumar Sanyal, the Additional District and Sessions Judge - III,

Naugachhia vide judgment dated 05.01.2005 passed in S. Tr. No. 590 of

1996 whereby the Appellant/Petitioner has been sentenced for life

imprisonment upon conviction under Section 376 of the Indian Penal

Code.

2. That the Appellant/Petitioner has challenged the aforesaid order of

conviction dated 05.01.2005 before this Hon’ble Court in the present

appeal.

3. That the Appellant/Petitioner had prayed for grant of bail in present

appeal at the stage of admission but the same was rejected by the Division

Bench consisting of Hon’ble Mr. Justice Nagendra Rai and Mr. Justice

S.N. Hussain vide order dated 20.01.2005. The Appellant/Petitioner

subsequently file an Interlocutory Application being I.A. No. 30 of 2006

for grant of Bail but the same was again rejected by the Division Bench

presided over by Hon’ble Mr. Justice S.N. Hussain vide order dated

19.04.2006. The Appellant/Petitioner once again vide Interlocutory

Application No. 1615 of 2006 approached by this Hon’ble Court for grant

of bail but the same was rejected by the Bench of Hon’ble Mr. Justice

S.N. Hussain and Mr. Justice Ghanshyam Prasad vide order dated

07.02.2007

4. That the Appellant/Petitioner states that the entire allegations in the First

Information Report being the basis of the prosecution case and the

ultimate conviction of the Appellant/petitioner is false, fabricated and

concocted story.
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5. That it is further relevant to state here that there is not a single eye witness

of the entire occurrence as alleged by the Informant in the First

Information Report which itself falsifies the entire prosecution case in

view of the fact that the alleged occurrence took place in the shop of the

appellant/petitioner which is located in an open market where there exists

frequent movement of the road side crowd in general and it is virtually

impossible that such an occurrence took place in the shop of the

Appellant/ Petitioner and there was no eye witness in the open market to

get a knowledge of the same.

6. That it is further stated that allegedly the occurrence took place on

01.09.1990 at about 7.00 p.m. in the evening and the victim girl was taken

to the Medical Officer namely Dr. Eira Jha (P.W. – 9 in the trial court) on

02.09.1990 and the said Medical Officer examine the victim girl at about

12.30 a.m. As per the Examination Report being Ext. 4/A proved by the

said Medical Officer before the Trial Court to have been prepared by her,

the victim girl was not at all subjected to any sexual intercourse, nor was

their any evidence of bleeding or seminal discharge inside the Vagina of

the victim girl. It has further been deposed by the said Medical Officer

that the hymen of the victim girl was found intact and the vaginal orifice

was absolutely normal which was conclusive evidence of the fact that no

sexual intercourse as alleged had taken place.

7. That it is specifically stated that the Medical Officer had also forwarded

the sample of swab from the Vulva of the victim girl for Pathological

examination and a report in that connection was received on 28.09.1990

which disclosed that there was no spermatozoa present in the swab which
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was the minutest examination of the private parts of the victim girl that

could have revealed the occurrence of any such incident if at all true as

per allegations.

8. That it is further stated that the Medical Examination of the Victim Girl

by the Medical Officer (P.W. – 9) would be the most important and

relevant evidence for the purpose of the true test of veracity of allegations

and the same do not support the prosecution case at all in view of the fact

that in case sexual intercourse as alleged was committed over the victim

girl, and there was a profuse bleeding from her private parts it would

certainly be for two primary reasons, the one being the outright rupture of

the hymen inside the Vagina and the other being the cracks having arisen

inside the vaginal orifice due to forcible intercourse.

9. That it is further stated that as per the findings recorded by the learned

Sessions Judge, the victim girl (P.W. – 7) deposed that no actual sexual

intercourse was done upon her by the Appellant/Petitioner which further

falsifies the very basis of the prosecution case and conviction of the

Appellant/Petitioner under Section 376 of the Indian Penal Code.

10. That it is further stated that the victim girl on the one hand stated that her

father (P.W. – 4) have never been a tenant of the Appellant/Petitioner

where as her father (P.W.-4) has admitted the same which indicates the

contradictory stand of the prosecuting party and further shows the

innocence of the Appellant/Petitioner.

11. That in fact the father of the victim girl resided in the house of the

Appellant/Petitioner for a long time and there took place a dispute arising
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out of Landlord and Tenant relationship which culminated in a false and

frivolous implication of the appellant/petitioner in the aforesaid case.

12. That the learned Sessions Judge has relied upon the report of the Forensic

Science Laboratory, Patna which was prepared at a much latter stage and

has unreasonably ignored the evidence of the Medical Officer, Dr. Ira Jha

which was more trustworthy in view of its preparation immediately after

the alleged occurrence took place.

13. That it is humbly submitted that the entire prosecution of the Appellant/

Petitioner was malicious and tainted with malafide.

14. That it is further submitted that in absence of conclusive evidence of

actual sexual intercourse, no case under Section 376 of Indian Penal Code

was made out but the learned Trial Court under both mistake of fact as

well as law has illegally and erroneously convicted the appellant/

petitioner.

15. That it is humbly submitted that the entire prosecution case besides being

false was a case of no evidence at all.

16. That there is no criminal antecedent of the appellant/petitioner.

17. That even as of now, the victim girl in terms of the prosecution case has

got married and is living a settled matrimonial life which further indicates

that there is no stigma of the present case if at all true is left over in her

life.

18. That the Appellant/Petitioner has got a fit case of Appeal the grounds of

which shall be placed before this Hon’ble Court in course of hearing.

19. That the Appellant/Petitioner is in custody since 05.01.2005 and is rotting

in Jail for no offence committed by him.

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20. That the Appellant/Petitioner has got his wife and two minor sons as

liabilities behind him and is loosing his precious phase of life when his

children are in utmost need of support of their father.

It is therefore most humbly prayed that your

Lordships may graciously be pleased to enlarge

the Appellant/Petitioner on bail upon furnishing

bail bounds to the satisfaction of the Additional

District & Sessions Judge, Naugachhia, District

Bhagalpur in S. Tr. No. 590 of 1996 in the

interest of justice

And / or
Be pass such other order or orders as your

Lordships may deem fit and proper in the facts

and circumstances of the case.

And for this the Appellant/ Petitioner shall ever pray.

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AFFIDAVIT

I, Amar Kumar Agrawal aged about 25 years son of Sri Nand Lal Agrawal

Resident of C.C 33 P.C. Colony Kankarbagh, P.S. Kankarbagh, District Patna,

do hereby solemnly affirm and state as follows: -

1. That I am the own cousin of the Appellant/Petitioner in this application

and as such well acquainted with the facts and circumstances of this case.

2. That I have gone through the contents of the present application and have

understood the same and I state that the statements contained herein are

true to the best of my knowledge and belief