Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41974 of 2018 Applicant :- Chetram Opposite Party :- State Of U.P. Counsel for Applicant :- Bharat Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Chetram in connection with Case Crime No. 267 of 2018 under Section 376D, 506 IPC, P.S. Mundha Pandey, District Moradabad.
Heard Sri Bharat Singh, 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 the prosecution have completely changed their case from the FIR to the statement under Section 164 Cr.P.C. The FIR has been lodged by the father of the prosecutrix who has in his written information disclosed himself to be an eye witness to the occurrence. He has indicated that while his daughter had gone to attend the call of nature, she was molested by the applicant and co-accused Peena. They were attempting to carry her off when she raised an alarm. The father and other natives of the village reached the spot, whereupon, the accused took to their heels. The FIR going by its version does not speak anything about rape beyond molestation. However, it is pointed out that in the statement under Section 161 and 164 Cr.P.C. there is an allegation of gang rape that has surfaced. It is pointed out that the statements and the stand taken under Sections 161 and 164 Cr.P.C., it is a clear case of improvement based on afterthought. It is also pointed out that the medico legal report does not bear out with the prosecution case of gang rape as there is no injury detected on the private parts or in the external examination. Learned counsel for the applicant, therefore, submits that the prosecution case is ex facie not tenable. It is further pointed out that co-accused Peena against whom there are identical allegations has been admitted to the concession of bail by this Court vide order dated 13.08.2018 passed in Criminal Misc. Bail Application No.30308 of 2018.
Learned AGA has opposed the prayer for bail and submits that the prosecutrix has nominated the applicant in the statement under Section 161 and 164 Cr.P.C. However, learned does not dispute the fact, that in the FIR lodged by the father of the prosecutrix who is an eye witness to the occurrence, there is not a hint or mention of rape. The factum of parity is also not disputed.
Considering the overall facts and circumstances of the case, the nature of allegation, the gravity of offence, the severity of punishment, the evidence appearing against the accused, in particular, the fact that there is no allegation of rape in the FIR which are the result of specific improvement and also the fact that the medico legal report does not support the prosecution case, 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 Chetram involved in Case Crime No. 267 of 2018 under Section 376D, 506 IPC, P.S. Mundha Pandey, District Moradabad 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.
Order Date :- 31.10.2018 Deepak