Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49087 of 2018 Applicant :- Manorama Devi Opposite Party :- State Of U.P.
Counsel for Applicant :- Arun Kumar Shukla Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Manorama Devi in connection with Case Crime No. 174 of 2017, under Section 354-B, 326, 376-D, 120-B I.P.C., Police Station Aung, District Fatehpur.
Heard Sri Arun Kumar Shukla, learned counsel for the applicant and Sri Akhilesh Mishra, learned A.G.A. appearing for the State.
The submission of the learned counsel for the applicant is that the case in the FIR, lodged by the father of the prosecutrix after she had allegedly suffered the assault and shared information alleges a case of outraging her modesty, and, upon resistance by her, causing grievous hurt to her by inflicting an injury to her eye, that she ultimately lost in a surgical operation. It is further pointed out that in the FIR, the categorical allegation of assault is against a solitary accused, Pintu s/o Ramesh Gupta, and, no other. It is further pointed out that in the statement of the prosecutrix recorded by the police under Section 161 Cr.P.C., the same case as that set out in the FIR, is reiterated, where the exclusive assailant shown is Pintu s/o Ramesh Gupta, and, there is a case way beyond an attempt to outrage her modesty. It is said that he attempted to ravish her, but there is no case of rape being accomplished. It is said further that in the altercation that followed, she suffered an injury to her eye, which is referred to in the FIR.
Learned counsel submits that in a generic change to the prosecution case, in the statement under Section 164 Cr.P.C., the prosecutrix has brought in three other assailants, besides Pintu, that is to say, Saurabh, Pankaj and one unknown person who are said to have waylaid her and dragged her to a field, where each of them by turns, ravished her, including Pintu. So far as the applicant is concerned, the role assigned to her is of leading the prosecutrix to the field to answer the call of nature, where the alleged assault took place, and, that she disappeared as soon as Pintu, and his co-accused arrived on the scene. It is argued by the learned counsel for the applicant that so far as the applicant is concerned, she has been implicated with the aid of Section 120-B IPC, and that there is nothing more against her. It is also submitted that the change to the prosecution story, completely changes the complexion of it, about which there is no basis either in the FIR, or in the earlier statements of the prosecutrix, recorded under Section 161 Cr.P.C. The applicant's name does not at all figure in the earlier accounts of the prosecution, prior to the statement under Section 164 Cr.P.C. It is submitted that this kind of change in the basic prosecution case, is an improvement of a kind that renders the prosecution entirely undependable and unreliable. In addition, it is submitted that co-accused Pintu has been admitted to the concession of bail by this Court vide order dated 04.05.2018 passed in Criminal Misc. Bail Application No. 16621 of 2018 whereas co-accused Pankaj Singh has also been admitted to the concession of bail by this Court vide order dated 06.12.2018 passed in Criminal Misc. Bail Application No. 46614 of 2018. It is submitted that the two co-accused last mentioned being enlarged on bail, against whom the main allegations are founded, the applicant is entitled to bail on the ground of parity also.
Learned A.G.A. has opposed the prayer for bail.
Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence appearing in the case, in particular the fact that the applicant is not named in the FIR, though, it is a complete account of the occurrence as also in the statement under Section 161 Cr.P.C., and, the fact that her name is brought in for the first time through the statement under Section 164 Cr.P.C. by way of a generic change and improvement to the prosecution case from one of molestation and attempted rape to one of an accomplished gang rape, the fact that the applicant is a woman and has been implicated with the aid of Section 120-B IPC alone, the further fact that the co-accused against whom there is the principal allegation of commission of the offence have been granted bail, entitles the applicant to parity, 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 Manorama Devi involved in Case Crime No. 174 of 2017, under Section 354-B, 326, 376-D, 120-B I.P.C., Police Station Aung, District Fatehpur be released on bail on executing her 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 :- 20.12.2018 Deepak