Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37648 of 2018 Applicant :- Abhishek Dixit @ Vibhu Opposite Party :- State Of U.P.
Counsel for Applicant :- Piyush Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
By means of this application, the applicant Abhishek Dixit @ Vibhu, who is involved in Case Crime No. 123 of 2018, under Section 376-D I.P.C., Section 3/4 POCSO Act & Section 3(2) (5a) SC/ST Act, P.S. Chaubepur, District Kanpur Nagar, is seeking enlargement on bail.
It has been submitted by learned counsel for applicant that applicant is innocent; he has been falsely implicated in this very case crime number; occurrence was said to be of 28.05.2018 at 21.00 P.M., whereas report was got lodged on 29.05.2018 at 13.40 P.M. upon report of Phool Chandra against Shivam Shukla and Abhishek Dixit @ Vibhu with this contention that on 28.05.2018 at 9 P.M. while his daughter prosecutrix aged about 16 years was sitting at the door of her house Shivam Shukla, S/o Santosh Kumar Shukla and Abhishek Dixit @ Vibhu, S/o Arun Dixit came there and they summoned prosecutrix and under enticing took her towards field, where she was subjected to rape by them and when she got free she made a rescue call when informant and other family members rushed there, from where informed Dial 100 and this report was submitted, whereas there is no evidence of any Dial 100 nor it was recorded so; prosecutrix in her statement written in her own handwriting before medical officer has said that she did a telephonic call to Shivam Shukla; he came on above date i.e. 29.05.2018 at 1.00 A.M. and took her towards field where she was under physical relation with Shivam Shukla upon her own volition and for this her brother has beaten her by danda; meaning thereby, this was neither taking nor enticing nor rape rather physical relation under consensual affair. prosecutrix has been held to be of 18 years under medical examination; accused-applicant is friend of Shivam Shukla, hence he has been falsely implicated in the present case; there is massive variation in the statement recorded under Sections 161 and 164 Cr.P.C.; accused-applicant is of no criminal antecedents and he is languishing in jail since 30.05.2018, hence bail has been prayed for.
Learned A.G.A. vehemently opposed the prayer for bail, but could not dispute the above factual aspect.
First Information Report reveals that occurrence was said to be of 28.05.2018 at 21.00 P.M., whereas this report was got lodged on the next day in afternoon and reason of this delay could not be explained in F.I.R., whereas in that very night Dial 100 was said to be informed. The prosecutrix in her statement before Medical Officer has categorically said that at about 1.00 A.M. on 29.05.2018 she summoned Shivam Shukla by telephone and she went with him in the field, where consensual physical relation was made and she was beaten by her brother for this occasion. In statement under Section 161 Cr.P.C. this has been said that Shivam Shukla was summoned through cell phone, subsequently, under Section 164 Cr.P.C. this was with alteration that when she went for attending call of nature at field Shivam Shukla and Abhishek Dixit @ Vibhu took her over bike about 1 Km. away and both of them committed rape with her.
Considering the rival submissions, nature of accusation, severity of punishment in case of conviction and nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, without expressing any opinion on merit of the case, this bail application is allowed.
Let the applicant Abhishek Dixit @ Vibhu, involved in above mentioned case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned, subject to following conditions:
1. The applicant will not tamper with the evidence.
2. The applicant will not indulge in any criminal activity.
3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.
4. The applicant will appear regularly on each and every date fixed by the trial court unless his personal appearance is exempted through counsel by the court concerned.
In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail.
Order Date :- 29.4.2019 NS