Court No. - 14
Case :- CRIMINAL APPEAL No. - 331 of 2018 Appellant :- Brijbhan @ Hussaini Respondent :- State Of U.P. And Another Counsel for Appellant :- Anil Kumar Srivastava,Radhey Shyam Shukla Counsel for Respondent :- G.A.,Karunesh Narayan Tripathi
Hon'ble Ifaqat Ali Khan,J.
Counter affidavit filed by respondent no.2 and rejoinder affidavit filed by appellant, both are taken on record.
Heard Sri Radhey Shyam Shukla, learned counsel for the appellant, Sri Karunesh Narayan Tripathi, learned counsel for the complainant and learned A.G.A. on the Criminal Misc. Bail Application No. 19031 of 2018, Brijbhan @ Hussaini vs. State of U.P. and another for the bail of the appellant in crime no. 867 of 2017, under sections 376, 354, 452, 323, 504, 506 IPC and Section 3 (1) & (1) Scheduled Castes / Scheduled Tribes Act, Police Station- Banda, District- Shahjahanpur.
The bail application of the appellant was rejected by Additional District and Session Judge, Court No. 2, Shahjahanpur vide its order dated 20.12.2017. The prosecution case is that on 04.09.2017 at about 09:00 pm Brijbhan @ Hussaini, Jitendra and Ram entered into the house of the complainant jumping over the wall carrying country-made pistol and danda in their hands. At that complainant was alone they caught hold down complainant and started obscene activities when the complainant objected then Jitendra and Rammurti said that when she will make noise they will murdered her and Brijbhan @ Hussaini dragging the complainant in the room and committed rape on her. No injury is found on the body of the prosecutrix. It is worth mentioned that as per prosecution rape is committed on 04.09.2017 at 09:00 pm and prosecutrix is medically examined on 06.09.2017 at 01:25 pm. As per medical report prosecuterix is 25 years old.
Perusal of the record shows that the FIR is lodged by the prosecuterix Smt. Rajbeti herself. Prosecuterix in her FIR states that the Jitendra and Rammurti were also entered in the house of the complainant carrying weapon in their hands and they also did the obscene activities with the complainant whereas in her statement under section 164 Cr. P.C. prosecutrix has specifically said that Jitendra and Rammurti did not entered in her house and remain standing out of her house, only Brijbhan @ Hussaini entered in her house. No where she has stated that Brijbhan @ Hussaini was carrying any weapon with him when he committed rape on her.
Considering these facts in my opinion, it is a fit case for granting the bail.
Let the accused Brijbhan @ Hussaini be enlarge on bail, in the above mentioned case 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 that :-
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, of which applicant is suspected.
v) The applicant shall not directly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade the applicant from disclosing such 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 learned counsel for the complainant is free to move an application for cancellation of bail before this Court.
Appeal is disposed of accordingly.
Order Date :- 27.11.2018 Swati