Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1164 of 2019 Applicant :- Sanjay Opposite Party :- State Of U.P.
Counsel for Applicant :- Bibhuti Narayan Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Affidavit of compliance on behalf of the Investigating Officer, Rajesh Kumar Verma has been filed today, which is taken on record.
This is an application for bail on behalf of the applicant, Sanjay, in Case Crime no.22 of 2018 (Case no.2663 of 2018), under Sections 506, 376-D, 394, 411 IPC and Section 4/25 of the Arms Act, Police Station Purandarpur, District Maharajganj.
Heard Sri Bibhuti Narayan Singh, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of the learned counsel for the applicant is that there is no allegation of rape whatsoever in the FIR lodged against unknown offenders, which reports an offence of robbery and is registered under Sections 457, 280, 342 & 506 IPC. The FIR has been lodged by the father-in-law of the prosecutrix with a fully informed account. The said FIR was lodged on 31.01.2018. In the statement of the prosecutrix recorded on 01.02.2018, there is an allegation of rape against co-accused Nasiruddin, besides Govind, Sanjay (applicant) and Sandeep. The other allegations are regarding the violence done to rob the prosecutrix and her family of their valuables. In the statement under Section 164 Cr.P.C., there is an allegation of rape against Nasiruddin and five other companions, who gained entry to the prosecutrix's house to loot. It is alleged that all of them ravished her, but at the same time it is clearly said that except for co- accused Nasiruddin, the prosecutrix does not recognize any other of the offenders. The statement under Section 164 Cr.P.C. was recorded on 07.02.2018. It is also submitted that the fact that the prosecution account is wavering and inconsistent across the FIR, and various statements during investigation makes the prosecution case shaky and undependable, which entitles the applicant to bail pending trial.
Learned counsel for the applicant has pointed out that after the prosecutrix had clearly spoken exculpatory in her statement under Section 164 Cr.P.C., the police recorded an additional statement of the prosecutrix under Section 161 Cr.P.C., where they showed her to say that she stands by the inculpatory statement for all the accused made before the police under Section 161 Cr.P.C. and what the Magistrate had recorded under Section 164 Cr.P.C. was all wrong and incorrect.
Learned A.G.A. 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 in the FIR lodged by the prosecutrix's father-in-law who is an eye-witness to the occurrence, all offenders are unnamed, the offence reported is robbery with no case of rape, the fact that in the statement of the prosecutrix under Section 161 Cr.P.C. recorded on 01.02.2018, an allegation of rape has been brought against all the offenders, who have been named by the prosecutrix, the fact that in the statement under Section 164 Cr.P.C., the prosecutrix has named co-accused Nasiruddin as the sole offender among five others, whom she has recognized with specific allegation of rape, while others she has not recognized, the fact that the police recorded further statement under Section 161 Cr.P.C. attributing to the prosecutrix the stand that the learned Judicial Magistrate had wrongly recorded the prosecutrix's statement which in itself is exceptionable, 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, Sanjay, in Case Crime no.22 of 2018 (Case no.2663 of 2018), under Sections 506, 376-D, 394, 411 IPC and Section 4/25 of the Arms Act, Police Station Purandarpur, District Maharajganj, 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 :- 21.1.2019 Anoop