Heard learned counsel for the applicant, learned A.G.A. and perused the record.
It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated. He further submits that the incident is alleged to have occurred on 12.8.08 and the FIR was lodged on 25.4.09, and there is no explanation with regard to delay in lodging the same. He further submits that as per the medical report, age of the prosecutrix is above 20 years and no opinion about rape has been given by the doctor nor any external injury has been found on the person of the prosecutrix. He has further referred to the the statement of the prosecutrix recorded under Section 164 CrPC to demonstrate that the prosecutrix remained in the company of the accused for several days and visited a number of places, and did not make any objection, as such, the conduct of the prosecutrix clearly shows that she was a consenting party. The applicant has got no criminal history and is in jail since 19.11.09.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment and submissions of the learned counsel for the parties, I am of the view that the applicant has made out a case for bail.
Let the applicant Kamlesh Nisad involved in Case Crime No. 284 of 2009 under Sections 366 & 376 I.P.C., P.S. Badhalganj, District Gorakhpur be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
Order Date :- 4.2.2010 vinay