Supplementary affidavit has been filed today by the learned counsel for the applicant, which is taken on record.
Applicant- Istafa @ Pakaudi seeks bail in Case Crime No. 440 of 2009 under Sections 376/506 IPC , Police Station Itwa, District Siddharth Nagar Heard learned counsel for the applicant as well as learned AGA for the State and perused the material placed on record.
It is contended by the learned counsel for the applicant that the victim is admittedly major and has been found to be 65 years and according to the medical opinion, it cannot be said that any rape was committed on her person. Relying upon the decision of Bibhishan Vs. State of Maharashtra, 2008 (3) Supreme Court Cases (Cri) 163, he has further submitted that absence of injury or mark of violence on her body further demolishes the story of prosecution. He has further submitted that the statement recorded under Section 164 Cr.P.C. of the victim cannot be accepted on the face of it and it is very unnatural and against human conduct that she has not resisted at the time of the commission of the rape. He has further submitted that the applicant is aged about 22 years and he is in jail since 26.5.2009 and the trial has not commenced which is likely to consume some time to conclude. Moreover, there is no criminal history to his credit. This fact has not been disputed by learned A.G.A.
The bail is, however, opposed by the learned A.G.A.
The points pertaining to nature of accusation, severity of punishment, reasonable apprehension of tampering the witnesses, prima facie, satisfaction regarding proposed evidence and genuineness of the prosecution case were duly considered.
Considering the totality of circumstances of the case, I consider it a fit case to enlarge the applicant on bail.
Without expressing any opinion on the merits of the case, let the applicant- Istafa @ Pakaudi involved in aforesaid crime be released on bail on his furnishing a personal bond of Rs. 25,000/- and two sureties each in the like amount to the satisfaction of the court concerned.
Order Date :- 7.1.2010 Mt/