Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25271 of 2018 Applicant :- Salman Opposite Party :- State Of U.P.
Counsel for Applicant :- Alok Ranjan Mishra,Sri Gopal S. Chaturvedi, Senior Advocate Counsel for Opposite Party :- G.A.,Ashok Kumar Mishra
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Salman, in Case Crime No.366 of 2018, under Section 376D, IPC, Police Station, Kotwali, District Mathura.
Heard Sri Gopal S. Chaturvedi learned Senior Advocate, assisted by Sri Alok Ranjan, learned counsel for the applicant, Sri Ashok Kumar Mishra appearing on behalf of the complainant and Sri J.B. Singh, learned AGA along with Sri Ashutosh Srivastava, learned counsel appearing on behalf of the State.
The submission of Sri Chaturvedi, learned Senior Counsel appearing for the applicant is that there is no cavil that the prosecutrix is a person of matured years, aged about 24 years. It is pointed out that in the FIR and the earliest statement recorded under Section 161 Cr.P.C., she has alleged rape against the applicant and co-accused Sazid on account of which the applicants have been cahallaned under Section 376D IPC, amongst others, but in her statement under Section 164 Cr.P.C., she has given a detailed and graphic account of the occurrence, which in the submission of the learned Senior Counsel ex facie appears to be rather farfetched, if not incredible. It is submitted that in the statement under Section 164 Cr.P.C., it is specifically said that co-accused Sazid ravished her, thus, excluding and changing the case of gang rape to one of rape simpliciter.
Learned Senior Counsel has further invited the attention of the Court to the additional statement under Section 161 Cr.P.C., recorded on 16.4.2018, soon after the statement under Section 164 Cr.P.C., where the prosecutrix has virtually confessed that she has implicated the applicant at the bidding of one Surendra Gurjar, who is a property dealer, and, to whom the applicant owes a sum of Rs.30 to 35 lacs, so as to coerce the applicant into compromising the charge of rape on condition of paying back whatever was due to Surendra Gurjar. The submission of learned Senior Counsel is that looking to the FIR where there is an allegation of gang rape, the allegation under Section 164 Cr.P.C., where the allegation of gang rape has been given up and changed to one of rape simpliciter, against the applicant Salman, and, the further statement under Section 161 Cr.P.C., where the prosecution case has been confessed to be one that was brought at the bidding of Surendra Gurjar, in order to coerce the applicant to repay the money owed by the applicant to Surendra Gurjar, the entire prosecution case stands on shaky and infirm ground.
Learned AGA and Sri Ashok Kumar Mishra, have opposed the prayer for bail in one voice and submit that the allegation of rape is there against the applicant throughout, which cannot be discounted.
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 FIR and the statement under Section 161 Cr.P.C., initially recorded carry an allegation of gang rape which is changed to a case of rape simpliciter on a different account of the occurrence in the statement under Section 164 Cr.P.C., and, further, changed to a case of almost confessed false implication in the additional statement of the prosecutrix under Section 161 Cr.P.C., 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 Salman, in Case Crime No.366 of 2018, under Section 376D, IPC, Police Station, Kotwali, District Mathura 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 :- 26.11.2018/NSC