Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45620 of 2018 Applicant :- Kallu@Ramhit Opposite Party :- State Of U.P.
Counsel for Applicant :- Sushil Kumar Pandey,Ramesh Kumar Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Kallu @ Ramhit in Case Crime No.199 of 2018, under Sections 354, 452, 376, 504, 506 IPC, Police Station Karvi Kotwali Nagar, District Chitrakoot.
Heard Sri Sushil Kumar Pandey, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned AGA along with Sri Abhinav Tripathi, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that the prosecutrix is a woman of matured years, aged 28 years and married. She has alleged in the FIR, that is authored by her, that in the night of 22.3.2018 at 2:00 a.m. the applicant committed house trespass by night, entered her living quarter, and, with an intention to ravish her, outraged her modesty. She came awake and raised alarm. Thereupon, he retreated holding out a warning that in case she reveals the incident to anyone, she would be done to death. The FIR was, therefore, registered inter alia under Section 354 IPC. It is submitted by the learned counsel for the applicant that the same case was maintained by the prosecutrix in her statement under Section 161 Cr.P.C., that does not go beyond a charge of outraging her modesty. Learned counsel has argued that in the statement under Section 164 Cr.P.C., to which he has drawn the attention of the Court recorded before the Judicial Magistrate on 28.3.2018, there is an improvement and generic change to the prosecution case, where it is alleged that after the applicant gained entry to the prosecutrix's house, he ravished her. It is submitted that the allegation of rape is conspicuous by its absence in the FIR and, in the statement under Section 161 Cr.P.C. It is thus a generic change to the prosecution case and a subsequent improvement, that has no moorings in the FIR or the early account of the case. Learned counsel has further invited the attention of the Court to the medico legal report, which shows some external injury sustained by the prosecutrix, but nothing to show a case of rape. It is also pointed out that in the medico legal report it is clearly indicated that the prosecutrix stated under a thumb marked statement of hers that she did not suffer any internal injury so as to require internal examination. It is alleged that the acknowledged absence of any internal injury belies the prosecution's subsequently developed and improved case of rape that is not there in the FIR or in the early account.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegation, the evidence appearing in the case, the severity of punishment, and, in particular, the fact that there is no case of rape in the FIR that is authored by the prosecutrix herself, but one of outraging her modesty alone, a stand that has been maintained by the prosecutrix under Section 161 Cr.P.C., the medico legal report that does not support a case of rape and the fact that a case of rape has been subsequently brought in as an improvement and a generic change to the prosecution through the statement under Section 164 Cr.P.C., but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant Kallu @ Ramhit in Case Crime No.199 of 2018, under Sections 354, 452, 376, 504, 506 IPC, Police Station Karvi Kotwali Nagar, District Chitrakoot be released on bail on executing his 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 :- 29.11.2018 NSC