[1] Both these applications are arising out of common C.R. Number, therefore, both the applications are disposed of by this common order.
[2] By way of present applications, filed under Section 439 of the Code of Criminal Procedure, 1973, the applicants have prayed to release them on regular bail in connection with C.R.No.I-80 of 2011 registered with Savarkundala Rural Police Station for the offence punishable under Sections 376(2)(g), 341, 323, 366, 506(2) and 114 of the Indian Penal Code.
[3] It is submitted by the learned advocate for the applicants accused that applicants are not involved in the crime and after belated stage, name of the applicants accused is disclosed, so it is requested to release the applicants on bail. It is further submitted that considering nature of allegations and role attributed to the applicants, the applicants may be enlarged on bail. It is also submitted that the applicants are in jail.
[4] It is submitted by learned advocate appearing for the complainant that victim is deaf and dumb and so at the first instance mother of the victim could not understand properly and so complaint was not lodged as per version stated by the victim and so complainant - mother of the victim made application to the DSP and thereupon after recording statement of the victim and on the basis of question and answer given in writing, present applicants accused were arrested and prima facie in serious offence of rape, they are involved. Therefore, it is requested to reject the bail applications.
[5] This Court has gone through the police papers. Alleged incident took place on 12.10.2011. At the first instance when complaint was lodged, it is mentioned that victim has given name of accused Shamlabhai by writing on paper and after long lapse of time, then again story was changed and it is alleged that victim was taken away by Shamlabhai on motorcycle to the shop of accused Dineshbhai and thereupon, both the present applicants have committed rape on her. Victim is married and aged girl. At the first instance she stated this before her husband and mother and the manner in which the incident took place and considering the conduct of the victim that though she is able to write on paper, she did not disclose the name of present applicants at the first instance and subsequently, later on name of applicants accused were disclosed.
[6] In the facts and circumstances of the case and considering the nature of allegations and role attributed to the applicants, without entering into the merits of the case this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicants on bail.
[7] Hence, the applicants are ordered to be released on bail in connection with C.R.No.I-80 of 2011 registered with Savarkundala Rural Police Station for the offence alleged against them on each executing personal bond of Rs.10,000/- (Rupees ten thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court and subject to the conditions that they shall -
a) not take undue advantage of their liberty or abuse their liberty;
b) not to try to tamper or pressurise the prosecution witnesses or complainant in any manner;
c) maintain law and order and should cooperate the Investigating Officer;
d) mark presence before the concerned Police Station on every 1st of English Calender month between 11.00 a.m. and 2.00 p.m.
e) not act in a manner injurious to the interest of the prosecution;
f) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
g) furnish the address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
h) surrender passport, if any, to the lower Court within a week.
[8] If the breach of any of the above conditions is committed, the concerned Court will be free to issue warrant or take appropriate action in the matter.
[9] Bail before the lower Court having jurisdiction to try the case. At the trial, the trial Court shall not be influenced by the observations made by this Court while enlarging the applicants on bail. Rule is made absolute to the aforesaid extent in each of the application.
Direct service is permitted.
[M.D.Shah, J.] satish Top