Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2840 of 2019 Applicant :- Nitish Kumar And Another Opposite Party :- State Of U.P. Counsel for Applicant :- Navin Kumar Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicants Nitish Kumar and Arun Kumar, in Case Crime No.322 of 2018 under Section 376D, 323, IPC, and Section 6 POCSO Act, Police Station Araniyan, District Bulandshahr.
Heard Sri Sudheer Mehrotra, assisted by Sri Navin Kumar, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Ashutosh Diljan, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that though he is nominated in the FIR with an allegation of rape along with other co-accused numbering four, the prosecutrix in her statement under Section 164 Cr.P.C., has categorically stated that on the day of occurrence at about 7:30 p.m. when she was returning home after answering the call of nature, there were four boys standing there, to wit, Vivek, Monu and the applicants' Nitish Kumar and Arun Kumar. It is stated that two of them Vivek and Monu waylaid her, dragged her inside (the place not being specified). It is said that the two of them (Vivek and Monu) ravished her forcibly by turns. It is also said that they assaulted her. It is specifically said that the other two boys Nitin Kumar and Arun Kumar (the applicants) did not do anything. It is also said that in consequence of rape, she bled and raised an alarm, which made the accused Vivek and Monu take to their heals. She returned home and reported the incident to her father, whereafter a report was lodged. Learned counsel for the applicant points out that a perusal of the medico legal report shows that in the internal examination held on the day following the occurrence, no injuries whatsoever have been noticed by the doctor to any of her private parts. Learned counsel for the applicant has emphasized that the allegation of rape is specifically assigned in the statement of the prosecutrix recorded under Section 164 Cr.P.C., to co-accused Vivek and Monu. It is also specifically said in exculpatory words that the applicants were not at all involved. It is submitted that the medico legal report also, prima facie, does not support a case of rape by employment of force.
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 prosecutrix in her statement under Section 164 Cr.P.C. has assigned the role of rape to co-accused Vivek and Monu alone, and specifically exculpated the applicants, the fact that prima facie, the medico legal report does not show any telltale signs of injury, 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 Nitish Kumar and Arun Kumar, in Case Crime No.322 of 2018 under Section 376D, 323, IPC, and Section 6 POCSO Act, Police Station Araniyan, District Bulandshahr 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 :- 22.1.2019 NSC