Court No. - 48
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27615 of 2018 Applicant :- Kamlesh Nishad Opposite Party :- State Of U.P.
Counsel for Applicant :- Ram Chandra Kushwaha Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
Heard learned counsel for the applicant and learned A.G.A. Perused the record.
Submission of counsel for the applicant is that the victim is a married lady of about 20 years in age. Counsel has tried to show that the circumstances of the case are such which strongly indicate the consensual nature of sex. Counsel has specifically drawn the attention of the Court to statement of the victim given before the Magistrate, in which the victim has admitted that when she was unmarried the applicant had told her that he would not allow her to remain in peace after marriage. Contention is that previous acquaintance of applicant with the victim is apparent on the face of record. Further submission is that the incident is said to have taken place inside the matrimonial home of the victim where a number of other inmates were very much present. Counsel has also drawn attention of the Court to the statements of Km. Rajni and Sangeeta which indicate that applicant was found committing coitus with the victim in the dead of the night and this act was found out by Km. Rajni when she woke up and it was then that she called other persons. Submission is that it is highly difficult to understand that unless the victim was a consenting party why she would not raise hue and cry and how was it possible that applicant would manage to have his safe entry inside the house and would indulge in such kind of act unless the victim was fully co-operating with the applicant. Counsel has emphasized upon the delayed F.I.R. and it has been pointed out that the incident is said to have taken place on 01.02.2018 while F.I.R. was lodged on 27.03.2018 after a gap of almost two months which is hardly having any explanation at all. Submission is that actually when this illicit relationship of the victim was discovered initially the family members tried to keep it under the carpet but later on the circumstances so developed that this report was filed. Further submission is that though the act indulged into by the applicant cannot be justified either morally or even legally to an extent but in view of the totality of facts and circumstances of the case a prima facie case of bail is made out. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been submitted that the applicant is in jail since 30.05.2018 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. It has been also pointed out that the applicant has no criminal history.
Learned A.G.A. has opposed the prayer for bail.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant-Kamlesh Nishad, involved in Case Crime No.69 of 2018, u/s 376, 504, 506 I.P.C., P.S.-Rudrapur, District- Deoria be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-
(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.
(2) The applicant will personally appear on each and every date in the court and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.
It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 26.7.2018 M. Kumar