Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39817 of 2018 Applicant :- Dharamvir @ Kallu Opposite Party :- State Of U.P.
Counsel for Applicant :- Pramod Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Counter affidavit filed by learned AGA, today is taken on record.
Heard learned counsel for the applicant and Sri J.B. Singh, learned AGA along with Sri Abhinav Tripathi, appearing on behalf of State.
This is an application for bail on behalf of the applicant-Dharamvir @ Kallu in Case Crime No.344 of 2018, under Sections 363, 366, 376 IPC, P.S. Kokhraj, District Kaushambi.
Learned counsel for the applicant has submitted that though the prosecutrix who in by her case was released from confinement by the applicant on 23.06.2018, in the FIR lodged on 28.06.2018 by her father there is no mention about the allegation of rape; that there is inconsistency in the statements under Sections 161 Cr.P.C., the statement made to the doctor on 2.07.2018 and before the Magistrate on 7.07.2018. Learned counsel for the applicant has submitted that the entire prosecution is ex-facie bogus and based on afterthought.
The State have filed a short counter affidavit and the fact is not denied that in the FIR there is no mention about the offence of rape.
Learned AGA has opposed the prayer for bail and submits that the prosecutrix might have been set free by the applicant on 23.06.2018 but apparently she was not back home by the time the FIR was lodged by her father on 28.06.2018. At this stage, learned counsel for the applicant has invited the attention of the Court to the statement recorded by the doctor during the medico legal examination of the prosecutrix on 2.07.2018, wherein the prosecutrix has said in the concluding and relevant part of her statements as follows;-
"Mughe Teen Din Rakha Aur Duskarm Kiya. 23.06.2018 Ko Sham 8 Baje Mughe Laker Kallu Ne Ghar Ke Pas Chhoda Aur Bag Gaya"
Learned counsel for the applicant has emphasized that this is statement made to the doctor by the prosecutrix with a thumb mark of hers attested by the doctor, and, it does not stand to reason why the FIR that was lodged on 28.06.2018, would not mention the factam of rape. Once, the prosecutrix was left back near her home by the applicant on 23.06.2018, it would not have mentioned in the FIR as if the prosecutrix is still untraceable, enticed away by Kallu. It is submitted that by this chronology, and, the statements of the prosecutrix, the entire prosecution is false and under an unexplainable shadow of doubt.
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 discrepancy in the account of the prosecutrix being released by the applicant and reaching home on the one hand and the FIR that shows her to be still missing five days after she had returned home 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 Dharamvir @ Kallu involved in Case Crime No.344 of 2018, under Sections 363, 366, 376 IPC, P.S. Kokhraj, District Kaushambi 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 :- 30.10.2018/Neeraj