Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4338 of 2019 Applicant :- Rambali @ Diwan Singh Opposite Party :- State Of U.P.
Counsel for Applicant :- Anjani Kumar Dubey Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Rambali @ Diwan Singh in Case Crime No.269 of 2018, (S.T. No.288 of 2018), under Section 376 IPC, Police Station Thathiya, District Kannauj.
Heard Sri Anjani Kumar Dubey, learned counsel for the applicant and Sri Om Prakash Mishra, learned AGA appearing on behalf of the State.
The submission of the learned counsel for the applicant is that the earliest and the most decisive account of this occurrence is to be found in a non-cognizable report dated 7.9.2018 registered as NCR No.211 of 2018 under Section 498 IPC by the father of the prosecutrix reporting an incident dated 3.9.2018 where he has said that his daughter, the prosecutrix aged about 19 years, had gone away with the applicant Rambali @ Diwan Singh, and Mahesh Chandra, as she was in love and took along with her jewellery and apparels for her marriage. It was said that till date of the report, her whereabouts were not known, despite an attempt to locate her amongst relatives and other probable places. It is emphasized by learned counsel for the applicant that five days after the aforesaid NCR was lodged, a First Information Report dated 12.09.2018 again came to be lodged by her father against the applicant with regard to the same incident dated 3.9.2018 about his daughter going traceless, but on occasion, it was said in the FIR that on inquiry being made, it had come to his knowledge that his daughter was seen going along with the applicant. It is further said that he launched a hunt for his daughter and the applicant, but since that did not yield result, he reported the matter to the police (bearing reference to NCR earlier mentioned). It is further said in the FIR that on 7.9.2018 at 6 'O Clock in the evening, his daughter returned home and told him that the applicant had taken her away on the pretext that her father-in-law was taken ill. She had told the informant that the applicant took her away from home and for four days, ravished her. It was said that somehow she managed to escape with her life. Again, the prosecutrix in her statement under Section 161 Cr.P.C., has more or less echoed the same story. In the statement made to the doctor in confidence, during her medical examination, though she has maintained her exculpatory stand vis-a-vis, the applicant, but she has spoken with material discrepancy in the account to say that the applicant took her away on the pretext that her husband had met with an accident, and also with a discrepant version about the circumstances in which she reached back home. In the statement under Section 164 Cr.P.C., she has repeated the story about the applicant taking her away on the pretext that her husband met with an accident and with an inculpatory stand against the applicant involving rape and, as earlier said has given a different account again about the manner in which she reached back home. The submission of learned counsel for the applicant is that earliest account of the occurrence that is clearly spelt out in the NCR dated 7.9.2018 lodged by the prosecutrix's father shows that she went along with the applicant, as they were in love and into a relationship, and that she went away taking along with her jewellery and apparels, that are necessaries for a marriage. The said clear statement, in the submission of learned counsel for the applicant is not a mere opinion, but a statement about the physical fact of taking away the belongings necessary to a marriage, and the psychological fact of a state of mind, where the informant's daughter left home with the applicant in order to marry him. It is argued with particular emphasis on the foot of averments made in paragraph 14 of the affidavit that the applicant and the prosecutrix had fallen in love, before her marriage, that was solemnized against her wish. She was not ready to live with her husband. It is submitted that in fact, she had eloped with the applicant of her free will, but was somehow persuaded to come back home. Thereafter, she has come with an allegation of rape against the applicant as she is a married woman and, therefore, it was a matter of not only preserving a perceived family honour, but also of saving her marriage. It is on that account that the prosecutrix and her father have now implicated the applicant mala fide, in a case of rape, after she eloped with him. It is submitted also that the NCR lodged earliest by the father says it all, which cannot be reconciled with any subsequent account. Learned counsel for the applicant has, in the last, drawn the attention of the Court to the medical report at pages 50,51 and 52 of the paper book, where the prosecutrix has neither sustained any external injury or the slightest injury to any of her private parts, which clearly shows it to be a case not compatible at all with the story of about four days of rape, alleged in the FIR, and the subsequent accounts of the prosecutrix.
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 earliest account of the occurrence clearly indicates it to be a case of the prosecutrix eloping with the applicant prima facie with necessaries for a marriage, the fact that the medico legal report does not at all indicates any injury that would be there in case of a rape, particularly, one over a period of four days, as later alleged by the prosecutrix, the fact that the prosecutrix has been discrepant in her account about the pretext on which the applicant allegedly took her away, referring somewhere to the accident of her father-in-law, but in her statement to the doctor and the Magistrate changing that pretext to be her husband's accident, 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 Rambali @ Diwan Singh in Case Crime No.269 of 2018, (S.T. No.288 of 2018), under Section 376 IPC, Police Station Thathiya, District Kannauj 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 :- 30.1.2019 NSC