Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49243 of 2018 Applicant :- Mohammad Jubair @ Sameer @ Sonu @ Zubair Opposite Party :- State Of U.P.
Counsel for Applicant :- Mohd. Naseer Ahmad,Nazrul Islam Jafri Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Mohammad Jubair @ Sameer @ Sonu @ Zubair, in Case Crime No.797 of 2017, under Sections 376D, 506 IPC, and Section 3/4 POCSO Act, Police Station Kharkhauda, District Meerut.
Heard Sri N.I. Jafri, learned counsel for the applicant and Sri J.B. Singh, 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 in the FIR, there is a clear allegation of rape against three nominated accused Imtiyaz son of Riyasat, Mallu son of Saroop, and Sameer son of Aas Mohammad, who are said to have ravished the prosecutrix, together with all details of the occurrence mentioned. It is said in the FIR very clearly that the prosecutrix was introduced to Sameer son of Aas Mohammad, one of the nominated accused, telling him that his father Aas Mohammad was a Circle Officer, in the Police, but in fact, he was a Daroga. The said statement of the victim nominating the three accused above mentioned has remain unchanged, as per her statement recorded on 29.7.2017 under Section 161 Cr.P.C. The said stand against the three nominated accused is constant and unchanged in her statement before the Magistrate recorded on 2.1.2018. The said case has been reiterated in a further statement of the victim recorded on 2.5.2018 under Section 161 Cr.P.C. In none of these statements that the Court has been taken through, either to the police or before the Magistrate, does the applicant's name figure. It has been brought to the notice of the Court that on the basis of a supplementary investigation undertaken through SCD-7 dated 15.6.2018, it has figured that an additional statement of the prosecutrix was again recorded, and there, it is said that the prosecutrix was shown the photographs of the accused, whom she had believed to be Sameer son of Aas Mohammad, but on seeing the photographs, she asserted that the boy was in fact not Sameer son of Aas Mohammad, but Mohd. Zubair son of Aas Mohammad, the applicant. It is on the basis of this posteriori wisdom that the prosecutrix has nominated the applicant in connection with the present crime. It is submitted by learned counsel for the applicant that the applicant's implication is by way of an scapegoat, because he is a son of a carpenter, whereas the real accused Sameer son of Aas Mohammad, is the son of a Sub- Inspector of Police, who has manipulated investigation, and got the applicant falsely implicated.
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 allegations, the severity of punishment, and, in particular, the fact that the applicant is nowhere nominated by the prosecutrix in the FIR across all her statements to the police under Section 161 Cr.P.C., and before the Magistrate, who has come to nominate him in a supplementary statement in a very unusual manner, after six months, on the basis of identification through a photograph, the fact that the originally nominated accused, who has been substituted virtually by the prosecutrix, is the son of a Sub- Inspector of Police, whereas the applicant is a son of carpenter, 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 Mohammad Jubair @ Sameer @ Sonu @ Zubair, in Case Crime No.797 of 2017, under Sections 376D, 506 IPC, and Section 3/4 POCSO Act, Police Station Kharkhauda, District Meerut 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 :- 20.12.2018/NSC