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"It is not her choice to admit or not to admit for the medical examination," observed Allahabad High Court last week while granting bail to two real brothers accused of committing gang-rape upon a woman with their third brother. The victim woman had never admitted herself for any medical examination so as to establish the fact of gang rape upon her.

Taking note of this particular fact, the bench of Justice Rahul Chaturvedi said, 

"This is the serious matter wherein the attending circumstances, it is required to establish the authenticity of the allegations. It is mandatory and obligatory on the part of the victim to get herself medically examined so as to substantiate the allegation of rape."

The bench was dealing with two criminal appeals filed against the order of the Special Judge (SC/ST Act)/Additional Sessions Judge, Allahabad whereby bail applications of the two brothers had been rejected in a case registered against them under Sections 328, 343, 376-D, 504, 506 I.P.C. and Section 3(2)V of the S.C./S.T. Act.

The First Information Report in the case had stated that the victim was kidnapped by some unknown persons and was confined into a room. It was alleged that time and again the kidnappers used to make her drink liquor and used to misbehaved with her. This act had continued for another week and thereafter, the woman was left in an abandoned condition near the railway crossing.

Later on, the victim had positively identified three real brothers, namely Suresh Yadav, Rakesh Yadav and Mirchai Yadav for committing gang rape upon her. The instant appeals were filed by two of these three, namely Suresh and Mirchai.

Hearing the appeals, without commenting on merit of the case, the court said that as per the Apex Court's ruling in various cases, it is risky to blindly rely upon victim's statements under section 161 and 164 Cr.P.C. without having any supporting, independent documentary proof or any other confidence generating material collected during the investigation.

Court also noted that contentions had been raised that it is highly improbable that three real brothers could commit a gang rape with a lady, coupled with the fact that she had never admitted herself for any medical examination so as to connect the allegation of rape. 

Therefore, keeping in view the nature of the offence, evidence, complicity of the accused, the court opined that the appellant had made out a case for bail.

Case Title: Suresh Yadav @ Suresh Kumar Yadav v State of U.P. and Another