Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23073 of 2021 Applicant :- Hariom Sharma Opposite Party :- State of U.P.
Counsel for Applicant :- Pramod Kuamr Singh,Ardhendu Shekhar Sharma,Ram Babu Sharma Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
1- Heard Mr. Ram Babu Sharma, learned counsel for the applicant, Mr. Rabindra Kumar Singh, learned Additional Government Advocate and Mr. Prashant Kumar Singh, learned Brief holder representing the State and perused the record of the case.
2- The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 661 of 2020, under Section 376/34 I.P.C., Police Station-Anoopshahr, District-Bulandshahr, during the pendency of trial.
3- As per the prosecution case in brief, victim herself lodged F.I.R. on 29.12.2020 regarding an incident, which took place on 27.12.2020, under Section 376 I.P.C. against Hariom (applicant), Solanki and Rajesh Sharma alleging inter alia that at about 1:00-1:30 O'clock in the intervening night of 27.12.2020, the accused persons came to her house and asked whereabouts of her husband, who had borrowed an amount of Rs. 5,000/- from co-accused Solanki. The co-accused Solanki committed rape on her in the presence of other co-accused including applicant.
4- It is argued by learned counsel for the applicant that F.I.R. has been lodged after a delay of two days. The victim is married lady and there was dispute regarding an amount of Rupees five thousand between her husband and co-accused Solanki. No injury was found over the body of the victim. It is further submitted that victim in the F.I.R. as well as in her statement under Section 161 Cr.P.C. did not make any allegation of rape against the applicant. It is alleged that brother-in-law and sister-in-law in their statement did not support the prosecution case. It is next submitted that victim in her statement under Section 164 Cr.P.C. has made an improvement alleging enter alia that at the time of incident, her husband was not in the house. She was intoxicated and raped after taking her out side of her house at some place, but did not specify any accused. Thereafter, victim and her husband themselves approached the investigating officer stating that on the instigation of others victim had lodged false report in the matter. Thereafter her second statement was recorded, on the said basis investigating officer submitted final report dated 14.02.2021 along- with report under Section 182 Cr.P.C., but the said final report has been illegally cancelled by the Magistrate concerned vide order dated 22.02.2021 taking cognizance under Section 190(1)B of Cr.P.C. Lastly, it is submitted that the applicant is in jail since 29.12.2020 and if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
5- Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that victim in her statement under Section 164 Cr.P.C. has made allegation of rape against all the three accused of this case and case has been committed to the Court of Session on 04.03.2021. It is also pointed out that during medical examination of the victim/prosecutrix, a wooden piece of 12c.m. long x 2.5 c.m. circumference circular has been recovered from her vagina. It is also mentioned that sexual assault can not be ruled out. Offence is heinous in nature. The bail application of co- accused Rajesh Sharma has been rejected by the co-ordinate Bench of this Court vide order dated 22.06.2021 in Criminal Misc. Bail Application No. 22837 of 2021 and there is no difference in the role of present applicant and co-accused Rajesh Sharma, therefore, bail application of the applicant is liable to be rejected.
6- Considering the facts and circumstances of the case, I find that victim in her statement under Section 164 Cr.P.C. has made allegation of rape against all the accused persons. Role of present applicant is similar to the role of co-accused Rajesh Sharma, whose bail application has been rejected. Final report submitted by the investigating officer has been rejected by the Magistrate concerned on the ground that investigating officer has not conducted fair investigation. There is no material on record at this stage to presume that applicant has been falsely implicated in this case. The offence is heinous in nature. Innocence of the applicant cannot be adjudge at the pre-trial stage. Apart from above, having considered the facts that rape is the most hated, morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. It shaken the spirit and very core of her life. Rape leaves a permanent scar on the life of the victim. In view of above and considering the gravity involved in the matter, I do not find any good ground to release the applicant on bail at this stage.
7- Accordingly, the application for bail of applicant is rejected.
8- Let a copy of this order be sent to the informant/victim within two weeks.
Order Date :- 13.8.2021 Sunil Kr. Gupta Digitally signed by Justice Sanjay Kumar Singh Date: 2021.08.16 17:06:12 IST Reason: Document Owner Location: High Court of Judicature at Allahabad