Hon'ble Shyam Shankar Tiwari,J.
Heard Sri D.K.Diwan, learned Advocate who appeared to press bail application moved on behalf of Kripa Kushwaha, Sri Neeraj Kumar Srivastava, learned Advocate who appeared for the informant side and learned Additional Government Advocate for the State.
Applicant above named was prosecuted for the offence punishable under Sections so mentioned in the judgment and he is to serve out the sentence so provided.
Submission is that although there is statement of the victim in the Court in respect to the commission of the offence and there is another eye witness who is said to have seen the incident but on bare reading of the facts something becomes totally improbable/unbelievable and thus it appears to be a simple case under Section 354 I.P.C. under which initially report was lodged but it is thereafter for the reasons best known to the informant subsequent addition in respect to major offence has come.
Submission is that the offence is not substantiated either by the medical examination report or otherwise from the facts as it is said to be an offence which is committed by the accused appellant alone with the help of none in the day hours in the field in which there is clear variance about the crop/grass etc. which may be sufficient to hide identity of the applicant and at the same time presence of the relative of the victim at the nearby place and even then commission of the offence makes all doubt to the prosecution version.
Submission is that there is no mark of any injury on the body of the victim.If things has taken place in rough field as being argued. In fact appellant was also teen aged and girl although is said to be aged about 12-13 years but from the other factor it has come that she was more than 14-15 years and thus on these facts it may be a case of teasing for which correct report was initially lodged but thereafter by twisted version present proceeding with the result of conviction to the appellant for a major offence.
Submission is that the appellant was on bail during trial and he did not misuse the same and as the appeal is not so old it will take some time in its disposal, the appellant is entitled to be released on bail.
Learned Additional Government Advocate and Sri Srivastava , learned Advocate to oppose the aforesaid submit that it is a case where something wrong was done by the appellant which was witnessed by a witness and victim has also given statement and therefore, irrespective of slight discrepancy of medical examination report and initial version being under Section 354 I.P.C. and certain other factors after conviction of the appellant it is not a fit case for grant of bail.
There is no dispute about the fact that initially written report was lodged by the informant under Section 354 I.P.C. and it is thereafter the facts developed the matter under Section 376 I.P.C. Appellant is resident of the same village. Place of incident is said to be the field where there is serious dispute about any crop standing rather it has come that only grass etc. was there and at nearby place relative of the victim was working in the field.
Appellant overpowered the victim and committed the offence in the field which was not having such a crop so as to enable the appellant to get his identity concealed and at the same time presence of no injury of any kind on the body of the victim is to be taken note.
Statement of girl was not recorded under Section 164 Cr.P.C. and she was not sent to medical examination immediately and under garment was taken after three days of the victim and after five days of the appellant.
Although statement of the victim can be said to be there but at the same time the aspect of lodging of the report under minor section (written report) by the informant and various other factors, at this stage can be a matter of note of the Court for consideration of grant of bail at interlocutory stage. Appellant was on bail during trial and he claims to have not misused the same and the appeal is not so old and thus it will take long time in its disposal, thus the appellant is entitled to be enlarged on bail.
On the facts, and totality of the circumstances this court is of the view that the appellant is entitled to be enlarged on bail.
Accordingly, let the appellant Kripa Kushwaha involved in S.T.No. 246 of 2008, be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned.
Realization of fine in respect to above appellant is not stayed and thus the release order shall be sent after deposit of fine.
Order Date :- 25.1.2010 M.A.A.