Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34398 of 2018 Applicant :- Monu @ Arhar Opposite Party :- State Of U.P.
Counsel for Applicant :- Kaushalesh Prasad Tiwari,C.P.Singh Counsel for Opposite Party :- G.A.,Avnish Kumar Srivastava And Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41654 of 2018 Applicant :- Aas Mohammad Opposite Party :- State Of U.P.
Counsel for Applicant :- Kaustubh Srivastava Counsel for Opposite Party :- G.A.,Avnish Kumar Srivastav
Hon'ble Rajul Bhargava,J.
Heard learned counsel for the parties and the learned A.G.A. for the State and perused the record.
Since both the cases arise out of same case crime number, they are being disposed of by this common order.
The present bail application has been filed by the applicants- Monu @ Arhar & Aas Mohammad in Case Crime No. 338 of 2017, under Section 376-D I.P.C. and 3/4 Prevention of Children from Sexual Offence Act, Police Station- Mundali, District- Meerut with the prayer to enlarge them on bail.
As per the prosecution case in nutshell, the allegation made against the applicants and other accused in the F.I.R. lodged by the father of the prosecutrix on 26.12.2017 at 8.45 A.M. is that on 21.12.2017 minor daughter (victim) aged about 14 years of the first informant was coming home from Madrsa. In the way, she was waylaid by named accused Aas Mohammad, Sanawwar, Monu and Mazid and then the accused Aas Mohammad and Sanawwar outraged her modesty by pulling her hand and accused Monu and Mazid prepared their video clippings and threatened her that if she discloses the incident to anyone, they will make the video viral.
It has been argued by learned counsel for the applicants that in the F.I.R., there is no allegation of commission of rape by the named accused. The statement of first informant under Section 161 Cr.P.C. was recorded on 26.12.2017 itself in which he has reiterated the version of F.I.R. and from his statement it appears that the incident was disclosed by the victim and further submitted that when the news spread in the village, the first informant left with no option but to lodge the first information report. Then the statement of victim under Section 161 Cr.P.C. was recorded on 28.12.2017 in which she has alleged commission of gang-rape by one added accused Azad @ Ajju, Mazid, Monu, Sanawwar and Aas Mohammad and she stated that the video clipping was prepared by Ajju, whereas, in the first information report the allegation of preparing the video was against Monu and Mazid. The victim was subjected to medical examination on 29.12.2017 at 11.15 A.M. and in the medical report neither any external nor any internal injury was noted. The examining doctor, a lady medical officer, has opined that no physical or genital injuries have been found and thus there is no use of force, however, sexual violence cannot be ruled out as told by the patient. Learned counsel has submitted that the applicants along with other accused have been falsely implicated in this case as they are friends of co-accused Mazid who had lodged a report against the first informant under Section 307 I.P.C. in the year 2016 in which after investigation charge-sheet has been submitted. It is further submitted that there is no allegation of rape against the applicants and other co-accused in the first information report and merely allegation of outraging modesty has been made, but the same was manipulated in order to fabricate a case of rape in the statement of victim recorded two days after lodging the first information report under Section 161 Cr.P.C. The same has also been supported by the victim in her statement recorded under Section 164 Cr.P.C. The prosecution version of gang-rape by accused-applicants on a minor girl who is less than 16 years of age does not find support from medical evidence. It is argued that there was no reason for the first informant not to disclose the fact of gang-rape as alleged by the victim in his statement recorded under Section under Section 161 Cr.P.C. As noted above, the F.I.R. was lodged with an inordinate delay of about six days yet the allegation of gang-rape is conspicuously missing in it. Lastly, it is contended that co-accused Mazid has been enlarged on bail by this Court vide an order dated 9.8.2018 passed in Criminal Misc. Bail Application No. 29917 of 2018. There is no early prospect of conclusion of trial. So, the applicants, who are in jail since 20.4.2018 & 6.4.2018 respectively, deserve to be released on bail.
Per contra, learned A.G.A. as well as learned counsel for the informant have vehemently opposed the prayer for grant of bail to the applicants and submitted that it is a case of gang-rape and it appears that while bail application of co-accused Mazid was allowed, the Court was kept under dark and it was given an impression that in the statement of victim recorded under Section 161 Cr.P.C. the allegation of rape is not there, though, the same is very much in the statement of prosecutrix under Section 161 Cr.P.C. Learned counsel for the informant has drawn the attention of the Court that he has already moved a bail cancellation application of co-accused Azad @ Ajju and Mazid. Therefore, the same may be decided before hearing the arguments on the bail applications of the applicants and the applicants are not entitled to be enlarged on bail.
I may record that I have passed orders in Criminal Misc. Bail Cancellation Application Nos. 2402 of 2018 (Kalam Vs. Azad @ Ajju) & 2420 of 2018 (Kalam Vs. Mazid) and I did not find any cogent reason on the legal or factual aspect or that accused Azad @ Ajju and Mazid have misused the liberty of bail and therefore the bail cancellation applications have been rejected.
I have carefully gone through the order passed in bail application of co- accused Mazid and it appears that inadvertently the said fact has been mentioned in the order that the victim in her statement under Section 161 Cr.P.C. has not made any allegation of rape, however, I have gone through the statement of victim under Section 164 Cr.P.C. which is annexed as Annexure-4 to the affidavit filed in support of bail application at page 39 the said fact of gang-rape is very much mentioned in it.
In my opinion, this Court under some wrong impression or there seems to be inadvertently error in dictation of the order and therefore solely on this basis, bail could not be refused to the present applicants. Needless to say that bail has been granted to co-accused Mazid on the ground that F.I.R. was lodged after six days of the alleged incident and except a bald allegation of outraging modesty of the victim against two named accused there is no allegation of commission of rape upon her, subsequently, name of one more accused Azad @ Ajju was also added by the victim in her statement recorded under Section 161 Cr.P.C and 164 Cr.P.C. The medical report also does not corroborate the prosecution version of gang-rape.
Considering the facts and circumstances of the case as also the submissions advanced by learned counsel for the parties, without expressing any opinion on merits of the case, I am of the view that the applicants are entitled to be released on bail.
Let applicants- Monu @ Arhar and Aas Mohammad be released on bail in the aforesaid case crime number on each of them furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following conditions that:-
1. The applicants shall not tamper with the prosecution evidence;
2. The applicants shall not pressurize the prosecution witnesses;
3. The applicants shall appear on the date fixed by the trial court.
In case of default of any of the conditions enumerated above, the courts below shall be at liberty to cancel bail of the applicants.
Order Date :- 28.11.2018 Vikas