Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45354 of 2018 Applicant :- Naim Opposite Party :- State Of U.P. Counsel for Applicant :- Kapil Tyagi Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Learned counsel for the applicant is permitted to correct the particulars of the case crime number in the application during the course of the day.
This is a bail application on behalf of the applicant Naim in connection with Case Crime No. 526 of 2017 under Sections 376, 313, 323, 506 IPC, P.S. Echotek-3, District Gautam Budh Nagar.
Heard Sri Kapil Tyagi, learned counsel for the applicant and Sri J.B. Singh, learned AGA along with Sri Ashutosh Srivastava, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that the allegations in the FIR, the two statements of the prosecutrix under Section 161 Cr.P.C. and the statement made to the doctor during medico legal examination do not at all attribute rape to the applicant Naim. A case of rape is exclusively there against co-accused Sanawar. The role assigned in all earlier accounts, particularly, the FIR that is authored by the prosecutrix, is that she was ravished by Sanawar whereas the applicant Naim has been assigned a marginal role in threatening the prosecutrix to withdraw from the prosecution of a case that has been brought against Sanawar. In one of the statements under Section 161 Cr.P.C., it has been clearly said that none of the other co- accused except Sanawar ravished her. However, in the statement under Section 164 Cr.P.C., there is a generic change to the prosecution story where for a first the allegation of rape has been brought against the applicant Naim and also against Sanawar, where Sanawar and Naim have been shown to be brothers. It is submitted by learned counsel for the applicant that the prosecution story is inconsistent, and, also it is a case where there is a generic change in the prosecution from what it is in the FIR, to what it has become in the statement under Section 164 Cr.P.C. It is argued also that it is a case of improvement to the prosecution case that makes it, ex facie, look hollow. It is, in addition, also argued that the main accused Sanawar, whose name figures throughout, has been admitted to the concession of bail by this Court vide an order dated 16.07.2018 passed in Criminal Misc. Bail Application No. 25033 of 2018, on the foot of which the applicant claims parity.
Learned AGA has opposed the prayer for bail but does not dispute the factum of party.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that the prosecution case has been generically changed from what it is in the FIR to the statement under Section 164 Cr.P.C., the fact that the name of the applicant in connection with allegation of rape is not there in all earlier accounts including in the FIR authored by the prosecutrix, that has been introduced for the first time in the statement under Section 164 Cr.P.C., as also the plea of parity, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Naim involved in Case Crime No. 526 of 2017 under Sections 376, 313, 323, 506 IPC, P.S. Echotek-3, District Gautam Budh Nagar be released on bail on executing a 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 :- 28.11.2018 Deepak