Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48851 of 2018 Applicant :- Pinku Alias Kamlesh Opposite Party :- State Of U.P.
Counsel for Applicant :- Anand Pati Tiwari Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Pinku Alias Kamlesh in connection with Case Crime No. 144 of 2018 under Sections 147, 149, 323, 452, 376D IPC, P.S. Usrahar, District Etawah.
Heard Sri Anand Pati Tiwari, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of learned counsel for the applicant is that the dispute between parties is essentially one of a physical altercation where injuries on both sides have been sustained. The occurrence is of 26.06.2018 in regard whereto the present FIR has been lodged by the prosecutrix's side on 27.06.2018 at 08:07 a.m. and registered as Case Crime No. 144 of 2018 under Sections 147, 149, 452, 323, 325, 354 IPC, whereas in relation to the same incident an FIR by the applicant's side has been registered on 27.06.2018 at 09:30 a.m. giving rise to Case Crime No. 145 of 2018 under Sections 504, 506, 325 IPC and Section 3(1) (a) SC/ST Act, both at P.S. Usrahar, District Etawah. It is pointed out by the learned counsel for the applicant that in the FIR lodged by the prosecutrix's side, there is no allegation of rape at all, though, there is mention of outraging her modesty on account of which the case includes as one of the offences, Section 354 IPC. In the statement under Section 161 Cr.P.C. also, the prosecutrix does not at all mention rape in any manner, and, does not go beyond molestation and outraging her modesty. However, in the statement under Section 164 Cr.P.C. that has been recorded 30 days after lodging the FIR, the prosecutrix has brought about a generic change to the prosecution case where she has alleged gang rape about which there is no mention in the FIR, or in the earlier statement under Section 161 Cr.P.C. The submission is that the aforesaid generic change to the prosecution case from one of molestation into that of gang rape clearly shows that the prosecution is extremely undependable and stands on shaky ground. It is further said that looking to the FIR lodged by the applicant as also the FIR lodged by the prosecutrix's side, in its essence, the dispute is one of physical altercation, where both sides have sustained injuries. Learned counsel for the applicant has pointed out that on their side, one Prem Chandra has sustained two fractures, regarding which medico legal report dated 26.06.2018 is on record at page no. 57 of the paper book.
Learned AGA has opposed the prayer for bail.
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 dispute essentially appears to be one of physical altercation where there are cross FIRs lodged by both parties, the fact that both of them sustained injuries, that in the FIR also, there is no allegation of rape but one of molestation and outraging the prosecutrix's modesty, the fact that there is no allegation of rape as well in the statement under Section 161 Cr.P.C., the fact that the allegation of rape has suddenly cropped up in the statement under Section 164 Cr.P.C., generically changing the nature of the prosecution case, 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 Pinku Alias Kamlesh involved in Case Crime No. 144 of 2018 under Sections 147, 149, 323, 452, 376D IPC, P.S. Usrahar, District Etawah 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 :- 19.12.2018 Deepak