Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48241 of 2018 Applicant :- Dhanush Pal Opposite Party :- State Of U.P.
Counsel for Applicant :- Santosh Kumar,Bakhteyar Yusuf Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Dhanush Pal in connection with Case Crime No. 122 of 2018 under Section 363, 366, 376-D, 343 IPC, P.S. Sirauli, District Bareilly.
Heard Sri Bakhteyar Yusuf, learned counsel for the applicant, Sri Sanjeev Kumar Mishra, Advocate has put appearance on behalf of the complainant 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 brother of the prosecutrix after the prosecutrix shared all information about the crime, the allegation that figures is one exclusively against one Mohan Swaroop, co-accused speaking about gaining acquaintance with the applicant, and, then by blandishment taking her away. It is said there that Mohan Swaroop ravished her. There is no allegation in the FIR against the applicant, not even a mention of his name. It is further submitted that in the statement of the prosecutrix under Section 161 Cr.P.C., there is an allegation of rape again against Mohan Swaroop alone, where too, the applicant is not at all mentioned. It is pointed out that in the statement recorded before the doctor, in confidence, thumb marked by the prosecutrix, during her medico legal examination, it has figured that co-accused Mohan Swaroop deceived the prosecutrix into a relationship, on the pretext of marrying her, and became physically intimate. It is said there that on 28.07.2018, on a false promise to marry, Mohan Swaroop took the prosecutrix to his farmhouse and ravished her. In the said statement also, there is no mention of applicant's role. It is submitted that it is in the statement of the prosecutrix under Section 164 Cr.P.C. that a generically different case of gang rape, involving the applicant, besides three others, has been introduced by the prosecutrix, which is completely incompatible with her version of the occurrence elsewhere, including her statement made to the doctor that she has duly signed/thumb marked. It is also completely different from what is said in the FIR, and the statement under Section 161 Cr.P.C. The submission of learned counsel for the applicant is that the prosecution case has, therefore, undergone a generic change from one of an allegation of rape against Mohan Swaroop alone involving a relationship or otherwise, into one of gang rape where the applicant has been implicated. The case of the prosecution is, therefore, changing and one that is improved inconsistently to implicate the applicant in the present crime. It is submitted that looking to the aforesaid shifting, uncertain and changing nature of the prosecution story, it is not a case where the applicant ought to be detained pending trial. Learned counsel for the applicant has further submitted that in the medico legal report, there are no such injuries detected that are compatible with a case of gang rape.
Learned counsel appearing on behalf of the complainant and the learned AGA have 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 case, in the FIR, the statement under Section 161 Cr.P.C., the statement made to the doctor, is one of rape where the allegations are against Mohan Swaroop alone has undergone a generic change and has been projected, as a case of gang rape in the statement under Section 164 Cr.P.C., where the applicant has been involved for the first time, 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 Dhanush Pal involved in Case Crime No. 122 of 2018 under Section 363, 366, 376-D, 343 IPC, P.S. Sirauli, District Bareilly 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 :- 18.12.2018 Deepak