Heard learned counsel for the applicant, learned A.G.A. and perused the record.
It is submitted by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the case. He further submits that the age of the prosecutrix, as per the medical report, is shown to be about 15 years and no definite opinion about rape has been given by the Doctor. He further submits that the incident is alleged to have taken place on 14.10.2009 and F.I.R. was lodged after four days i.e. on 18.10.09 and the statement of the prosecutrix under section 161 Cr.P.C. was recorded after 14 days i.e. on 28.10.2009 wherein there is no whisper at all about the complicity of the applicant in the alleged offence. However, later on, in her statement under section 164 Cr.P.C., which was recorded after 17 days, under the influence and undue pressure of her parents, she changed her version and named the applicant, although he was not named at all in her earlier statement recorded under section 161 Cr.P. C., as such there being material contradictions in her statements, the same are not reliable at all. He further submits that in the statement recorded under section 161 Cr.P.C. the prosecutrix had, essentially, named the co accused Guddu in whose company she remained for several days and visited various places but did not raise any alarm or hue and cry and this conduct on the part of the prosecutrix itself reflects that she was a consenting party. He further submits that no injury, either external or on the private parts of the prosecutrix, was found. He further submits that main role of committing rape has been assigned to co accused Guddu and only role of assisting in the commission of the alleged offence has been assigned to the applicant. He further submits that the applicant has got no criminal history to his credit and there is no chance of his fleeing away from the judicial process or tampering with the prosecution evidence, and is in jail since 26.11.2009.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment and submissions of the learned counsel for the parties, I am of the view that the applicant has made out a case for bail.
Let the applicant Bhau Alias Shyam Bihari involved in Case Crime No. 1706 of 2009 under Sections 363,366,376,504,506 I.P.C. and 3(1)12 SC/ST Act, P.S. Purani Basti, District Basti be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i)The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurise/ intimidate the prosecution witness.
(iii)The applicant will appear before the trial court on the date fixed.
(iv)The applicant shall report to the police station concerned in the first week of each month to show his good conduct and behavior.
In case of breach of any of the above conditions , the court below shall be at liberty to cancel the bail.
Order Date :- 3.2.2010 MLK