Court No. - 7
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47059 of 2018 Applicant :- Begraj Opposite Party :- State Of U.P.
Counsel for Applicant :- Pankaj Kumar,Akhilesh Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a second bail application on behalf of the applicant Begraj in connection with Case Crime No. 88 of 2018 under Section 323, 354, 376, 452 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Badhapur, District Bijnor. The first application for bail was dismissed by me vide order dated 01.10.2018 for non prosecution. This application is, therefore, virtually a first application.
Heard Sri Akhilesh Kumar Mishra, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of learned counsel for the applicant is that in the FIR lodged by the prosecutrix's father, which is an informed report, the allegation is one of outraging the prosecutrix's modesty with no allegation of rape mentioned there. It is submitted that in the statement under Sections 161 & 164 Cr.P.C. of the prosecutrix, the allegation of rape has figured against the applicant. In the statement made before the doctor which has been made available to the Court as part of the medico legal report has been produced by the learned AGA, and the same is being retained on record. There it has been again said by the prosecutrix that the applicant outraged her modesty, after entering her house. There is no allegation of rape in that statement. Learned counsel for the applicant has gone further to invite the Court's attention to the fact that in the medico legal examination, the doctor has recorded "no marks of injuries seen all over body and private parts". The submission of learned counsel for the applicant is that on evidence of this kind, which is shaky and shifting, and, therefore, undependable, the applicant cannot be detained any further pending trial.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that the prosecution account is not consistent in the FIR, in the statement under Sections 161 & 164 Cr.P.C. and that made to the doctor, where in the FIR, there is allegation of molestation alone as also in the statement to the doctor, whereas in the statement under Sections 161 & 164 Cr.P.C., there is an allegation of rape, the fact that the medico legal report does not prima facie corroborate an allegation of rape, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Begraj involved in Case Crime No. 88 of 2018 under Section 323, 354, 376, 452 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Badhapur, District Bijnor be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 25.2.2019/Deepak