Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2616 of 2019 Applicant :- Nitin Opposite Party :- State Of U.P.
Counsel for Applicant :- Abhinav Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Nitin in connection with Case Crime No. 37 of 2018, under Sections 376,450 IPC, P.S. Bhopa, District Muzaffar Nagar.
Heard Sri Abhinav Singh, learned counsel for the applicant and Sri Om Prakash Mishra, learned A.G.A. appearing for the State.
The submission of the learned counsel for the applicant is that he has been falsely implicated on account of animosity and motivation of the prosecutrix's family. It is pointed out that in the FIR lodged by the prosecutrix, it has been mentioned that the prosecutrix's husband is employed at another station. She lives along with her aged mother-in-law all by herself. Describing the occurrence she has said that on 31.01.2018 at 12.00 midnight, the applicant scaled the wall of her house, gained entry to her room and ravished her. It is further alleged that on alarm being raised, her mother-in-law and two neighbours rushed to her rescue, upon sighting whom the applicant made good his escape taking a rout via the roof top. It is pointed out here by the learned counsel for the applicant that in the FIR very cleverly tucked in, is an allegation that while escaping through the roof top the applicant sustained injuries on account of a fall. He could not stand up back on his feet. The police were called at dial No. 100 facility. It is pointed out, however, that the applicant is not shown to have been arrested by the police at this point of time, which prima facie shows that this description, or this part of the description about the occurrence is inaccurate, and one designed to provide for a contingency that bespeaks the truth. Learned counsel at this stage has invited the attention of the Court to the other side of the story, that is carried in an FIR lodged by the applicant regarding an incident of the same date, that is, 31.01.2018 where the time of occurrence shown is 10.30 p.m., but the FIR whereof was registered on 09.02.2018 as Case Crime No. 83 of 2017, under the orders of the DIG dated 05.02.2018, when the local police refused to act on the prompt information filed by the applicant. In the said FIR, the three accused are Rishipal, Manoj and Vicky. The informant is the applicant's father. Rishipal and Manoj are the brothers of the prosecutrix's father- in-law (Chachiya Sasur) whereas the third accused Vicky is her brother-in-law (Devar). It is pointed out that what actually happened on 31st January, 2018 at 10.30 p.m. is a determined assault by the three nominated accused in the FIR lodged by the applicant's father, last mentioned, injuring the applicant. The said assault came about due to an ill found animosity rife in villages against other natives, who seek to do better in life. It is pointed out that the applicant was a candidate for the police recruitment, and the informant's relatives who are nominated in the FIR, lodged by the applicant's father were determined to see that the applicant does not appear for the police recruitment, where they expected that he might be selected. They had made their intention known, but were not taken seriously. However, on the fateful day they assaulted the applicant armed with deadly weapons, that included a Balkati and iron rods, with an intention to do him to death, or grievously injure him. However, on call for rescue, the applicant was saved but not without grievous injury. It was in these circumstances that the applicant was taken by a Home Guard for his medical examination being Home Guard No. 1021, Charan Singh to the District Hospital, Muzaffar Nagar. The medico-legal report shows that the applicant's injuries were examined on 01.02.2018 at 08.15 a.m. in the morning, and the doctor there noticed amongst others, an incised wound 3 cm X 4 cm deep 1 cm away from the right nipple, and two traumatic swellings. The third injury was opined to be caused by a sharp object which supports assault, amongst others, with a Balkatti. It is pointed out that in order to get away from the consequences of this truthful and accurate prosecution, that was bound to follow, the entire story of rape was carefully woven by the prosecutrix and her family, where allowance was also made for the injury sustained by the applicant in the assault by her family, in the manner that the applicant was instead, shown in her FIR to have escaped via the roof, jumping therefrom and sustaining injury.
In connection with the submission about the case being a false implication, the learned counsel for the applicant has invited the attention of the Court to a report of the Deputy Superintendent of Police, at page 62 of the paper book, where it has prominently figured that the Circle Officer while doing a review of the charge-sheet proposed to be filed against the applicant, concluded that the Investigating Officer had proceeded in conspiracy with the prosecutrix and her family, and got the present FIR lodged giving rise to the present crime, which is suspect to its face, and appears to be a shameless abuse of the statutory powers of a police officer. He also remarked that the final report proposed to be filed in the FIR lodged by the applicant be also not processed, and the matter be handed over to some other Investigating Officer. It was fairly pointed out by the learned counsel for the applicant that this report of the Deputy Superintendent of Police dated 08.04.2018 is not part of the case diary; logically it would never be so, though it should have been. Noticing the said report of the Deputy Superintendent of Police, this Court called for a personal affidavit of the S.S.P., Muzaffar Nagar to indicate as to what action has been taken by him against S.H.O., P.S. Bhopa, Muzaffar Nagar, if at all, based on the report of the Deputy Superintendent of Police/Circle Officer, Bhopa, Muzaffar Nagar vide an order dated 21.01.2019. An affidavit of compliance has been filed on behalf of the SSP, Muzaffar Nagar, where he has indicated that that he has referred the matter for a preliminary inquiry to some S.P. whose designation is not very clear, and has also filed on record a further report of the Circle Officer, P.S. Bhopa, Muzaffar Nagar indicating that the investigating has not been fair. An order dated 15.02.2018 has also been passed by the S.S.P., a copy whereof is annexed to his personal affidavit, relieving the concerned S.I. of his current charge and sending him to the police lines. The submission of the learned counsel for the applicant is that though these papers may not be part of the investigation, at the stage of bail, and now, that they are part of this Court's record, it sufficiently indicates that the edifice of the entire case against the applicant prima facie is the outcome of manipulation and tainted investigation, in connivance with the prosecutrix and her family. In these circumstances, it is not at all appropriate to detain the applicant in jail pending trial.
Learned A.G.A. has opposed the prayer for bail. While he does not deny what S.P. has said in the personal affidavit, and the reports regarding the conduct of investigation into the matter, he says that the allegations against the applicant are consistent in the FIR, the statements under Sections 161 and 164 Cr.P.C.
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 there is a strong possibility of false implication, looking to the FIR lodged by the applicant's father about an assault faced by the applicant at the hands of the prosecutrix's relatives on the day of occurrence, the facts mentioned in the FIR registered at his instance, the fact that the applicant sustained injuries compatible with the FIR lodged prima facie by the applicant's father, the fact that the prosecutrix's FIR is said to be the result of an animosity which has a definite object indicated, the fact that the police at their level have found the investigation to be prima facie tainted, 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 Nitin involved in Case Crime No. 37 of 2018, under Sections 376,450 IPC, P.S. Bhopa, District Muzaffar Nagar 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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 30.1.2019 BKM/-